Whether as a result of an illness or an accident, many factors can limit your ability to take care of yourself and your assets. In order to respect your wishes if you become incapable of making your own decisions, the mandate in case of incapacity allows you to designate another person that will take care of you and what you own.
Manon Charron, a mobile social worker for Clinique GO™, explains what we need to know about this little-known document that can become an indispensable tool for prevention!
What is a mandate in case of incapacity?
It’s a legal document that allows you to designate, while in full possession of your mental and physical faculties, a person that will be responsible for taking care of you and the administration of your property if you become incapacitated.
A person can be declared incapable of administering their property or taking care of themselves to different degrees and for different reasons. Among the most common reasons are a mental disability, an accident, a head injury, a stroke, a mental illness, or a degenerative disease such as Alzheimer’s.
Preparing a protection mandate in case of incapacity allows you designate a mandatary who will act in your best interest and in your name. There are many responsibilities of being a mandatary, that’s why you need to carefully choose the person you will designate for this role.
The benefits of a mandate in case of incapacity
In addition to listing the name of your mandatary, the mandate in case of incapacity outlines your wishes when it comes to protecting yourself and your assets. You’ll have to include all the important information related to the powers bestowed upon your mandatary, that is to say:
- Mandatary to the person: they will look after your moral and physical wellbeing, by making the decisions about your housing, the care and treatment you’ll receive, etc. They’ll also ensure that all your needs are met (clothing, personal hygiene, etc.).
- Mandatary to property: they will manage the administration of your income (pension, benefits, etc.) and will pay your bills and manage your assets (investments, real estate, etc.). In brief, they will act in your name for anything related to your property and assets.
With a protection mandate in case of incapacity you will, among other things, leave nothing to chance. You’ll be able to set the price for selling your house, for example. The protection mandate also allows you to designate the person you want to name as your mandatary, someone you deeply trust. You can also name your mandatary for their financial skills, because they need to be capable of overseeing your finances, especially if you have lots of assets to manage.
You can also designate two different mandataries, one for your person and the other for your property.
Homologation of the mandate
For a mandate to be homologated by the Court, two documents must be provided to legal authorities. These documents will confirm that you are not able to make decisions to protect your person and your property. They are:
1 – Medical evaluation: A medical doctor will have to examine you to determine your degree of incapacity. They will determine the cause of your incapacity (illness, disability, etc.) and its effects on your condition (memory problems, inability to make decisions, trouble remembering where you are, etc.). This assessment will allow the doctor to decide if you are able or not to take care of yourself, administer your assets, and exercise your civil rights.
2 – Psychosocial evaluation: A social worker must carry out a systemic assessment of your condition, your relationships, and your environment. They’ll be able to evaluate your physical, cognitive, affective, familial, personal, and financial state in order to understand your condition and how it affects your ability to make sound judgments. The social worker must also meet your mandatary in order to determine if they are able to exercise their responsibilities. The social worker will assess their financial situation to make sure the mandatary is able to manage your assets.
For a few hundred dollars, Clinique GO™ can provide you with certified social workers who will be able to carry out this evaluation in a few short weeks. It’s important to note that the cost of the psychosocial evaluation depends on several factors, including travel fees incurred by the social worker who needs to evaluate your relationships by meeting your loved ones. The social worker might also have to contact various organizations for the purposes of their evaluation.
Once both evaluations (medical and psychosocial) have been completed, the reports must be submitted to the Court with the mandate properly filled out. With these documents, the legal authorities will have all the information necessary to declare (or not) that you are incapacitated. Given the complexity of homologation of the mandate in case of incapacity, some mandataries will call upon a notary or a lawyer to assist them during the legal process to make sure everything is presented correctly to the Court.
Declaring someone incapacitated : a measure of last resort
Declaring someone incapacitated means removing their rights and their ability to make their own decisions. That’s why medical and psychosocial evaluations are necessary to declare someone incapacitated. It’s a measure to prevent the process from being abused.
A person can also be declared temporarily incapacitated, after a car crash that leaves them in a coma for instance. When the person recovers, a process must be undertaken to declare the person capable of making their own decisions again.
Additionally, in the case of a permanent incapacity, other evaluations may be necessary to reassess the person’s condition. In fact, a protection mandate may stipulate that the person is able to continue taking care of themselves while designating a mandatary for their property. If the person’s state deteriorates, a second evaluation may be required to determine if a mandatary to the person is necessary to protect their interests.
The protection mandate in case of incapacity is an important document that we should all prepare to protect our interests. Undertaking this process can be complex because it has to be done according to specific rules in order to ensure it is valid. If you want to get a psychosocial evaluation for the purposes of a protection mandate, you can call upon Clinique GO™ and our mobile social workers to get the protection you need in a timely manner. There is no waiting list to see a Clinique GO™ social worker.
For more information about a protection mandate for an adult, visit the Curateur public du Québec website.