A mandate is a written document that allows you to choose in advance the person who will make decisions about your well-being and property if you are ever incapacitated. This person is called a “mandatary”. You are free to include whatever you like in your mandate, such as your wishes regarding palliative care, or instructions about the management of your property.

The mandate only works while you are alive – it is not to be confused with a will, which only applies after your death. It is also not a power of attorney (procuration), which is a specific delegation of power that you give to a person to help manage your property. A power of attorney is only valid if your capacity is unquestioned.

The two types of mandate are:

• the notarized mandate

These mandates are considered to be authentic and are difficult to contest in court. The notary keeps the original of the mandate. She registers it with the Chambre des notaires.

• mandate before witnesses

This mandate must be signed by you and by two witnesses who state that you are of sound mind. These witnesses may not be included in the content of the mandate. If you choose to prepare your mandate yourself, take the time to gather all of the necessary information to make a valid document. Consult the documents prepared by the Public Curator of Quebec, among others. These documents are available on the Public Curator’s website, at Publications du Québec and in some bookstores.

A mandate before witnesses can also be prepared by a lawyer. The mandate will then be registered in the Barreau du Quebec’s Registre des mandats. A mandate that you prepare yourself and sign before witnesses can also be registered through a lawyer.

Below are some examples of the kinds of clauses you can include in your mandate. You can:

• appoint one or more mandataries: you can name more than one and choose their roles, to take care of your person, manage your property or both;
  
• appoint a replacement mandatary, that is, a person who will replace the original mandatary if he can no longer assume his responsibilities;
  
• indicate how you would like your property to be managed, either in general or in specific terms;
  
• describe the payment to be made, if any, to the mandatary;
  
• explain your wishes regarding the end of your life (also sometimes called a “living will”), for example by stating that you do not wish to be on a life-support system.

Yes. It is possible that protective supervision will be put in place to complement a mandate given in anticipation of incapacity that doesn’t allow for complete care of the person or the management of his property.

There are three different kinds of supervision: adviser, tutorship and curatorship. The choice of supervision depends on the degree of incapacity of the person who is to be protected. The court decides on the kind of supervision and chooses the person who will act as representative, after considering medical and psychosocial evidence, the opinion of the interested person, as well as the opinions of the protected person’s close relations.

It is understandable that some time might pass between the beginning of incapacity and the homologation of the mandate. Acts done before the homologation of the mandate can be cancelled or the resulting obligations reduced if it is proven that the incapacity was notorious or that the other contracting party knew about it at the time of the acts.

Your mandate given in anticipation of incapacity can be terminated for several reasons:

• your death, or that of your mandatary;
  
• the revocation (cancellation) of the mandate when you are not incapacitated;
  
• renunciation by the mandatary;
  
• your bankruptcy, if your mandate indicates that the mandatary is to be paid;
  
• your placement under protective supervision.

Your mandatary only remains in place while you are incapacitated. If you regain your faculties, the court must put an end to the mandate. It will no longer be in force and you can choose to revoke or keep your mandate (for example if you wish the mandatary to represent you if you become incapacitated again).

If the mandatary commits fraud or is negligent, you or one of your relations can ask the court to remove him from the mandate. You can also complain to the Public Curator of Quebec. This officer has the power to investigate, and if necessary, to intervene with the mandatary or ask the court to remove him from this position.