Tutorship for Children Under 18

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Parents are usually the “tutors” of their minor children. But if the parents die or can no longer act as their children’s tutor, someone else must fill this role.

 

What is tutorship for minors?

Tutorship is a way of protecting minor children. Before the age of 18, a person is a minor and has one or more tutors. Tutors must act in the children’s best interest by taking care of them and the things they own.   

As of 18, people usually become completely independent from their tutors. From that moment, they are free to exercise all their rights on their own and without restriction (draw up a will, donate organs while still alive, etc.). 

 

Types of tutorship for minors

There are three types of tutorship: 

Legal Tutorship

Legal tutorship is the kind automatically granted to parents. They do not have to be named by a court. If one parent dies, the other parent remains the only tutor. Most of the time, parents act as tutors free of charge. But in exceptional cases, when managing the minor’s property becomes the parents’ main job, a court can decide that they should be paid.

 

Dative Tutorship

If both parents die, become incapable or lose their parental authority, a dative tutor is named. Dative tutorship is usually taken on by a family member or by someone close to the minor.

When no person in the minor’s immediate circle can assume the role of dative tutor, the Director of Youth Protection (DYP), and sometimes the Public Curator, is named as tutor. 

Parents can choose a dative tutor in their wills, in a protection mandate (formerly “mandate for incapacity”) or through a written statement filed with the Public Curator. People chosen to be dative tutors may refuse the appointment. But whether they accept or refuse, dative tutors named by the parents must inform the Public Curator of their decision. People who are named tutors after the parents’ death must also inform the liquidator of the parents’ estate of their decision. The liquidator of an estate is often called the “executor.” Minors can have more than one dative tutor: one to care for their personal well-being and one or more to take care of their property.

Tutors caring for the personal well-being of minors have parental authority over them, take care of them and act on their behalf. Dative tutors caring for the personal well-being of a minor must be an individual (an uncle, a sister, etc.) and not a company.  

Tutors in charge of property take care of the minor’s money and other property. They need not be physical persons, but can be, for example, a trust company specializing in managing property. 

Tutors caring for the personal well-being of a minor can also be tutors in charge of the minor’s property. 

 

Suppletive Tutorship

A father or mother can name a suppletive tutor to the child if it becomes impossible for one or both of them to be tutor and exercise parental authority. This can happen, for example, when one parent is absent from the child’s life or if the parents cannot fulfill their duties as parents. The parents don’t have to be dead, incapable or lose their parental authority before a suppletive tutor can be named.

A parent’s spouse or a member of the minor’s family (e.g., grandparent, uncle, aunt, brother, sister) can be a suppletive tutor. Suppletive tutors have parental authority and tutorship over the child. They can exercise this role by themselves or with a parent who remains responsible for the child.

Unlike dative tutorship, more than one suppletive tutor can be named to take care of the child’s personal well-being. 

Naming a suppletive tutor must be approved by a court. The court must ensure that naming a tutor is in the child’s best interests and that it is impossible for the parent or parents to be the child’s tutor. Children 14 and older must agree to the appointment of the tutor before the court can approve it. Usually, children 10 to 13 must also agree, but the court can approve the appointment without their agreement. 

Naming a suppletive tutor doesn’t prevent naming a dative tutor in a will, protection mandate or statement to the Public Curator. 

 

Responsibilities of tutors to property 

 

Dative Tutors

Here are some of the responsibilities of dative tutors: 

  • make a list of the property to be managed within sixty (60) days of the start of the tutorship 
  • provide a security deposit or take out insurance if the value of the property exceeds $25,000
  • produce annual reports on how the property is managed
  • produce a final report at the end of the tutorship 
  • obtain any advice or authorizations required by law

 

Legal Tutors (the parents) 

If the value of their child’s property exceeds $25,000, they must do all the things listed above. 

If the value of their child’s property is under $25,000, parents need only report to the child when he or she turns 18 on how they have managed the child’s property. While this report need not be as formal as when the property is worth over $25,000, it is still a good idea to keep a separate bank account for a child and a copy of any relevant supporting documents to give the child when he or she turns 18. 

 

Suppletive Tutors

Suppletive tutors have the same responsibilities as legal tutors (the parents) regarding the child’s property. 

 

Powers of tutors regarding property

The powers a tutor has depends on the type of tutorship.

 

Legal Tutorship

When the minor’s property is worth less than $25,000, the parents have the power to make all decisions about managing the property. They must make these decisions with care, honesty and in the child’s best interests. They are not allowed to use the child’s funds for their own personal needs. They can invest the child’s money, but only in low risk investments, such as savings bonds.

When the minor’s property exceeds $25,000, things get more formal: a tutorship council is created. The council is usually made up of three people named by a group of relatives, people connected by marriage or civil union, or friends. This council oversees the tutor’s actions. Legal tutors (parents) cannot mortgage a minor’s property, sell valuable property belonging to the minor or borrow money without permission from the tutorship council or from the court.

 

Suppletive Tutorship

Suppletive tutors have the same responsibilities as legal tutors (the parents) regarding the child’s property.

 

Dative Tutorship

Dative tutors are always supervised by a three-person tutorship council no matter the value of the property. Dative tutors need the tutorship council’s approval for some decisions.

 

Property not managed by tutors

Tutors don’t manage property given in a will if the will names someone else to manage it. For example, a will might state that Nicolas, age three, will inherit $25,000 and that it is to be managed by a foundation or a financial institution until he turns 18.

Also, at any age, minors can manage their own allowance or salary from a job. From age 14, minors are treated as adults with respect to their work, art or profession.

But there is an important exception: when minors earn a lot of money from a job, their parents can ask a court to decide how much the child can manage and how much the parents should manage.

 

Role of the Public Curator

The Public Curator is a government agency that supervises the management of all dative, legal and suppletive tutors who manage property worth more than $25,000.

 

End of tutorship

Tutorship ends automatically when minors turn 18, are fully emancipated or die. “Full emancipation” is a legal process that gives a minor almost all the rights of an adult.

If a parent who was not able to act as tutor later becomes capable of doing so, suppletive tutorship will end before the child turns 18. It also ends when a dative tutor is named. 

The tutorship also ends when the tutor dies or is replaced. 

Parents can never choose to stop being tutors for their minor child: it is their duty as parents.  But a dative or suppletive tutor can resign with a court’s permission. The tutor must have serious reasons to resign, for example, illness or moving away.  

Finally, a court can remove tutors who don’t carry out their responsibilities properly and harm the child’s interests. Anyone with an interest in the child can ask for a tutor’s removal if the tutor is not carrying out their responsibilities. The court will name a replacement.

 

Adult children who can’t take care of themselves

Tutorship to a minor ends when the child turns 18. 

But the parents of a child who needs help can ask the court or a notary to put in place “protective supervision” for the child. This is a legal mechanism to protect vulnerable people. It can be done as soon as the child turns 17.

For example, Sophie, who will soon turn 18, has a small intellectual handicap. She can take care of herself and manage many parts of her life, but still needs help with her finances, signing an apartment lease and other matters. Sophie’s parents could request protective supervision for her.

Important !
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.