La loi vos droits

Senior Citizens

Advisers for Adults

Martine was in a car crash, and while she escaped with her life, she suffered a serious head injury that has left her with a mild intellectual deficiency. It couldn’t have come at a worse time. Martine recently inherited some property from her father and her family fears that her injury will hinder her judgment in managing it. They want someone to be appointed to help Martine administer her property. The Civil Code of Québec sets out a form of protective supervision that provides for an adviser to persons of full age. Specifically, this supervision protects people who are generally capable of caring for themselves and their property, but who need assistance or guidance in order to accomplish specific legal acts.

In this Infosheet, Éducaloi describes this type of protective supervision, the terms and conditions of its application, and its impact on acts executed by the person of full age.

What is an “adviser to persons of full age”?

The general rules hold that a person of full age is fully able to exercise his civil rights and administer his property. But some people – because of serious injury or illness – need help from a third party who can guide them. The Civil Code of Québec has set up different types of protective supervision intended to offer support to those in need, one of which is the “adviser to persons of full age.”

Of all the types of protective supervision available, the adviser to a person of full age is least intrusive. The adult is generally able to take care of himself, and can continue to make decisions concerning his own person, for example. But assistance must be sought from an adviser for certain acts related to the management of his property.

In short, protective supervision of a person of full age only applies to the accomplishment of specific acts for which the protected person demonstrates an incapacity, whether temporary or not. The adviser’s responsibility is restricted to helping the protected person in these specific situations.

Who requires protective supervision of an adviser to a person of full age?

This type of protective supervision is for people of full age who are able to care for themselves and manage their property, but who need assistance and advice for certain administrative acts.

It is appropriate for people afflicted with mild intellectual deficiency or temporary incapacity caused by illness.

For example, John, who has a mild intellectual deficiency, just won $ 450,000 playing the lottery. Because of his affliction, he does not fully grasp the importance of investing such a large sum of money. To obtain help in this matter, he seeks the assistance of an adviser to a person of full age.

What is the role of an adviser to a person of full age?

In general, an adviser’s role is to assist the person of full age with specific administrative acts. An adviser to a person of full age is thus not a legal representative and therefore cannot sign contracts on behalf of the person he is assisting.

Protective supervision offered by an adviser only covers those acts for which the protected person shows incapacity, either temporary or otherwise. The protected person continues to administer his property, but for acts which are beyond his capacity, he will seek useful advice from the person chosen to be his adviser.

The court determines which acts the protected person can and cannot perform by himself.

Where the court does not indicate those acts for which the adviser is responsible, the Civil Code of Québec stipulates the protective supervision applicable. For example, a person of full age can sign a lease for a term of up to three years or make gifts of his property of little value without assistance. But the adviser’s assistance is required to renounce a succession or accept a gift with a charge.

How is the adviser appointed?

First of all, before an adviser can be appointed, an application has to be made. This is much easier to do with the help of a lawyer or notary who can take care of the legal procedures (see the Infosheet entitled Instituting protective supervision). It is up to the judge or court clerk before whom the motion is made to decide whether or not to issue an order appointing an adviser to a person of full age.

If a judge or clerk grants the protective supervision, he will then ask the incapacitated person’s family and friends to delegate three (3) people to form a tutorship council. In some exceptional cases, the judge will appoint one person to perform the duties of the tutorship council. The tutorship council appoints the person who will be responsible for advising and supervising the management of the protected person’s property.

Who can request this type of protective supervision?

Generally anyone showing a special interest, that is a person concerned for the health, safety, or proper administration of the patrimony of an incapacitated person, can make a motion for the institution of protective supervision.

This can include spouses, close family members, friends, volunteers who help the person, neighbours, or the Public Curator. Finally, a person who feels that his capacity is diminishing can request protective supervision for himself.

Who can be appointed an adviser to a person of full age?

An adviser to a person of full age must be a close relative or family member who demonstrates a special interest for the person requiring assistance. Note, however, that the law does not allow the Public Curator to act as an adviser to a person of full age.

What happens if a person with an adviser performs an act alone for which the assistance of his adviser is required?

In such situations, the act can be annulled or any resulting obligations reduced if the person of full age suffered a prejudice (harm).

For example, William did not consult his adviser before renouncing a succession for more than $ 7,500. Because William was not authorized to act alone, the adviser can ask that William’s renunciation be annulled.

What happens if the appointed adviser no longer wants this responsibility?

If the position of adviser becomes vacant, the tutorship council must appoint another adviser. In no way does the absence of an adviser end protective supervision.

Until a new adviser is appointed, the person of full age must avoid performing acts for which he requires an adviser’s assistance.

Useful Links :

1. Curateur public du Québec website  [http://www.curateur.gouv.qc.ca/cura/html/anglais/protecting/RPconmaja.html]