Homologation of a mandate in case of incapacity
Homologation of a mandate is an official procedure that takes time. The steps leading to enforcement of a mandate are very similar to those for opening a tutorship or curatorship. However, in addition to certifying that the person presumed to be incapacitated is indeed incapacitated, based on the medical and psychosocial assessments, the court has to verify the existence and validity of the mandate.
A mandatary may carry out all these steps him/herself. However, since the steps are complex, he/she may call on a notary, certified or otherwise, to present the proceeding in Superior Court.
The initiative for approaching the court rests solely with the mandatary (the individual whom the mandate designates as the person's representative). In exceptional cases, the mandatary's replacement may request homologation of the mandate:
- The mandatary asks professionals in the health and social services network or private practice for a medical and psychosocial assessment of the incapacitated person.
- The mandatary or the notary then submits an application for homologation to Superior Court in the judicial district where the incapacitated person resides, with copies of the mandate and the assessments. The application is served to the incapacitated person and one of their relatives whom the law deems reasonable.
- The notary or clerk to the court asks the incapacitated person various questions to:
- determine how severe their incapacity is;
- verify that the mandate is authentic;
- find out what the person's wishes are.
- determine how severe their incapacity is;
- The procedure ends with a court judgment making the mandate executory; the mandatary is now entitled to use the powers entrusted to them.
- If the court feels the mandate does not protect the person sufficiently (e.g. contains no financial clauses), it may also recommend placing them under tutorship or curatorship.
Opening of a protective supervision
Since 1990, the opening of a protective supervision has been a legal process with different stages.
Who undertakes the formalities?
The person themselves, their spouse, a relative, a friend or a volunteer working with the person may request the opening of a protective supervision.
If nobody undertakes the formalities, the director of a local community health centre (CLSC) or other health institution sends the request to the Curateur public, who then submits it.
Requesting the opening of protective supervision
Once the medical and psychosocial assessments are ready, the person submitting the request may use a notary, who may or may not be accredited, to take care of the whole process. They may also take care of it themselves. Warning : Requesting the opening of protective supervision may prove rather complex for a layperson!
Various expenses are associated with the opening of protective supervision (court and bailiff's fees, notary's fees, etc.). Depending on the incapacitated person's financial position, these fees may be partly or fully covered by legal aid , or paid out of their patrimony.
Note that the Curateur public charges fees for launching the process for opening private protective supervision.
The following documents are required:
- Application for opening of protective supervision and notice calling meeting of family (including relatives by marriage), close associates and friends;
- Sworn statement supporting the application;
- Notice of date of presentation to the court
Serving the application
Whoever is dealing with the formalities now sends the application to the person to be protected, a member of their family and the Curateur public, through a bailiff (this is known as serving the application).
Until the court confirms the incapacity of the person in need of protection, they remain fully entitled to exercise their rights.
You also have to:
- Open a file at Superior Court in the judicial district where the person in need of protection resides;
- File the person's birth certificate, medical and psychosocial assessments and any other required documents with the clerk to the court, at least 10 days in advance.
Examination of the person
If the person deemed to be incapacitated opposes the plan, they may ask a lawyer to contest the opening of protective supervision on their behalf.
By law, the clerk to the Superior Court or an accredited notary has to personally confirm the incapacity by asking the person some questions. This is an opportunity for the person (or their lawyer if they are being represented) to voice their opinion about the opening of protective supervision or their opposition to it.
Composition of family meeting
For the family meeting to be valid, it has to be attended by at least five people (relatives, relatives by marriage and friends). Unless this condition is met, the initiative for the proceedings is transferred to the Curateur public, which is the only party allowed to bypass this step.
This meeting is called by the clerk to the court at the date specified in the notice. The purpose of the meeting is to discuss the assessment reports and enable everyone to express their opinion about the form of protective supervision contemplated, and the choice of legal representative and members of the tutorship council. The person in need of protection may attend or be represented by a lawyer.
The clerk files the minutes of the family meeting with the court, along with the application for opening of protective supervision.
If an accredited notary held the family meeting, a similar procedure applies.
Hearing and judgment
A hearing is only held if there is contestation. The incapacitated person may attend the hearing if they wish, or be represented by their legal counsel.
In the judgment, the judge or clerk takes into account the medical and psychosocial assessments, the results of the examination of the person, testimony from the family meeting, and any other evidence regarded as relevant (material previously written by the person, etc.), in order to determine the most appropriate form of protective supervision. They then appoint the legal representative and the members of the tutorship council. These appointments take effect at the date of the judgment.
Official notification of the judgment is sent to:
- the person declared incapacitated;
- the Curateur public.
Following the judgment, the person is listed on the registers of protective supervision.
For all these delicate matters,
you can rely on Eric Dugas.