Protective supervision is a legal mechanism that protects people who have become vulnerable because of their incapacity. Protective supervision ensures that the property of these people is taken care of and that they can exercise their rights.
Protective supervision comes into play when a person needs protection and she has not made a protection mandate (used to be called "mandate in case of incapacity"), or this mandate is incomplete.
There are three kinds of protective supervision, which vary depending on how incapacitated a person is:
Curatorship is used when an adult is totally and permanently unable to take care of herself and manage her property. This is the most drastic kind of protective supervision because it leaves the person with very little freedom to do things on her own.
Tutorship is used when an adult is temporarily or partly unable to take care of herself and manage her property. The person therefore can do some things on her own.
An adviser can be appointed when an adult is slightly unable to manage her property. The advisor's role is to advise and help the person manage her property. Of the three kinds of protective supervision, this one gives the protected person the most freedom to do things on her own.
For tutorship and curatorship, there can be two types of tutors and curators: one who takes care of the person and the other who manages the person's property. However, it is possible for one person to do both jobs.
Note: if the incapacitated person is a minor (under 18 years old), tutorship is the only kind of protective supervision that can be used.
Who can ask for protective supervision?
As a general rule, protective supervision can be requested by any person who shows she has a special interest in the incapacitated person. This means someone worried about the health, security and proper management of the property of the incapacitated person.
The request could therefore be made by a spouse or partner, close relative, a friend who helps or supports the person, someone else close to the incapacitated person or the Public Curator. Also, anyone who feels she is losing her ability to make decisions can ask for protective supervision for herself.
How do you request protective supervision?
A request for protective supervision must be made to a court or a notary. However, the request can only be made to a notary if no one (including the person concerned) challenges the request. If the request is challenged, it must be made in court.
In all cases, there must be a medical and psychosocial evaluation of the person who will be protected. This person must be given a chance to speak about whether there should be protective supervision, the kind of protective supervision and the person who will represent or assist her. If the person considered incapactitated cannot answer questions due to her state of health, someone else who represents her can be questioned instead.
The court or notary then calls a meeting of relatives, people connected to the incapacitated person by marriage or by civil union, or friends. At this meeting, these people give their opinions on whether protective supervision should be used, the kind of protective supervision, who should act as the adviser, tutor or curator, and who should be part of a "tutorship council". This council will be responsible for supervising the tutor or curator.
Can the incapacitated person challenge the request for protective supervision?
Yes. If a person does not think she needs protective supervision, she can challenge the request. In fact, the court or notary must give this person a chance to be heard.
Note that a person who is the object of a request for protective supervision can ask a lawyer to represent her.
Is a power of attorney still valid?
Unless a court decides otherwise, a power of attorney (officially called a mandate) signed by a person 18 years old or older while she had the capacity to make this kind of document remains valid until there is a court judgment ordering protective supervision.
For example, if Diane took the time to sign a mandate for banking purposes that let her brother, Frank, collect rents from her rental property, deposit the money in her bank account and pay her bills, Frank can continue to use this mandate until there is a judgment.
However, some institutions could refuse to accept the mandate if they suspect abuse or if steps have not been taken to put protective supervision into place.
Be careful! If a person who needs protection signed a protection mandate, this mandate must be homologated to have effect. Homologation means a court must issue a judgment declaring the person to be incapacitated and activating the mandate.
Can temporary measures be taken before protective supervision is put into place?
- Protection of the Person:
The court can name someone to take care of the person who needs protection if it seems she cannot take care of herself. The Public Curator will be appointed if no one else is in a position to fill this role.
- Protection of the Person's Property:
If necessary, the court can name the Public Curator or another person to manage the property of the person who needs protection.
Aside from these two situations, in an emergency the law also allows someone to do whatever is necessary to preserve the property of the person who needs protection, without the court's permission. The people who are allowed to do this are the same people who can ask for protective supervision. For example, if a person has lost her apartment and there is a risk that all of her furniture will be abandoned on the sidewalk, someone in her circle of friends and family has the right to rent storage space to preserve the furniture.
What is a meeting of relatives, persons connected by marriage or civil union, or friends?
The meeting of relatives, persons connected by marriage or civil union, or friends is a meeting of people who are close to the adult to be protected (e.g., spouse, partner, brother, sister, other family member, friends). The meeting is usually called by the court or a notary after there has been a request for protective supervision.
The purpose of this meeting is to inform family members and others close to the protected person about the need to protect the person and the steps that have been taken to put into place protective supervision.
The people at the meeting give their opinions about who should act as adviser, tutor or curator, and about the three people who will be members of the tutorship council, the two alternates and the secretary. The secretary will be responsible for making and keeping summaries of meetings for the duration of the protective supervision.
Who is called to the meeting of relatives, persons connected by marriage or civil union, or friends of an incapacitated person?
The court or notary must call the following people to the meeting:
- the person's spouse or partner
- her parents
- her children 18 years old or older
- her grandparents, if they live in Quebec
- her brothers and sisters 18 or older, if they live in Quebec
These people must be sent a notice informing them that the meeting will take place. However, they are not obliged to attend. If someone who should have received a notice does not get one, she is still allowed to attend and give her opinion.
There must be at least five people at the meeting. As far as possible, they should represent both the maternal and paternal sides (side of the mother and father) of the person who will be protected. To make sure that there are enough people present, the court or notary can ask these other people to attend:
- other adults in the family, including people related by marriage or civil union
- the person's friends or other adults close to him
Again, even if these people get a notice calling them to the meeting, they are not obliged to attend.
What is the tutorship council?
The tutorship council is a group usually made up of three people chosen from among those called to the meeting of relatives, persons connected by marriage or civil union and friends referred to above. It can also be made up of one person, if the court allows this. A tutorship council is created whenever a person other than the Public Curator is named as the tutor or curator to a person 18 years of age or older.
The job of the tutorship council is to supervise the tutor or curator's conduct and management, especially to avoid abuse. Of course, the tutor or curator cannot be a member of the tutorship council.
When the law requires it, the council must also approve certain decisions made by the tutor or curator. For example, the tutor needs the council's permission to hypothecate the property (give it as a financial guarantee) of the protected person or to take out a loan of less than $25,000 in the name of a person protected by tutorship. For amounts over $25,000, a judge must give permission and she will ask the tutorship council's opinion.
Members of the council must meet at least once a year and invite the tutor or curator to meetings. Meetings can be done by phone. All decisions must be made by majority vote and a written record of meetings must be kept.
How does the court put protective supervision into place?
The court analyzes the file of the person who will be protected. In making her decision, the judge considers the degree of the person's incapacity, the medical and psychosocial evaluations, the interview with the person who will be protected, the opinion of family members who participated in the meeting of parents, persons connected by marriage or by civil union and friends, and any other document in the file.
The court will then decide on the appropriate kind of protective supervision - which might be different from what was requested - and appoint an adviser, tutor or curator, depending on the situation.
Can protective supervision be re-evaluated?
Yes, protective supervision can be re-evaluated at any time based on changes in the protected person's situation. To change protective supervision or end it requires new medical and psychosocial evaluations and a request to the court or notary.
The protected person's adviser, tutor or curator is responsible for ensuring that the protected person's state of health is re-evaluated whenever necessary. Also, tutorship or advisers to persons of full age (18 or over) must be reviewed every three years, and curatorship must be reviewed every five years, unless the judgment ordering protective supervision mentions a different time limit.
When does protective supervision end?
Protective supervision usually ends when the person is no longer incapacitated and can take care of herself and her property, or when the protected person dies.
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.