If you are the victim of an accident or a disease, your capacity to take care of yourself and your property might be compromised. In order to protect your interests, you need to take legal measures to make sure your wishes are respected if ever you are no longer capable of making your own decisions.
In Quebec, you can use a document called a mandate in case of incapacity. Its goal is to designate the person or persons who will take care of you and what you own.
To help you understand the advantages of a mandate in case of incapacity, we met with Pierre Lafleur, a social worker with 20 years of experience who now specializes in helping people cope with a loss of autonomy.
The role of the mandatary (ies)
The mandate in case of incapacity is a very important document. You need to fill it out with care. It designates who will be responsible for taking care of you and administering your property, whether this is a temporary situation or a permanent one.
The protection mandate must designate a mandatary to the person and a mandatary to the property. These must be people you trust enough to make decisions for you. One person may assume both these roles or you can designate two different people.
Mandatary to the person: they will look after your moral and physical well-being, by making decisions about your housing, treatment, and ensure that all your needs are met (personal hygiene, clothing, leisure, etc.).
Mandatary to property: they will manage the administration of your income and will pay your bills. They will also manage your assets such as investments, real estate, wealth…
The mandatary must comply with the provisions listed in the protection mandate. You can include clauses regarding the treatment you want or not, the institutes you want to be housed in, etc.
Homologation of a mandate
As with any other legal document, you must make sure the protection mandate complies with the law. To do so, you should consult a notary to help you draft your mandate. That way you’ll be sure it is a legally binding document.
Mr. Lafleur explains the steps necessary to prepare and homologate a protection mandate:
- The principal prepares their mandate with a notary in preparation for their inability to make their own decisions.
- When the principal becomes incapable of making their own decisions, the mandatary must notify the notary. The latter then requests a medical and psychosocial evaluation for the principal.
- The mandatary must get a physician to fill out the medical evaluation form and send it to the notary.
- A social worker must then carry out a psychosocial evaluation of the principal. The social worker contacts the physician to produce a psychosocial evaluation in line with the medical evaluation.
- With both evaluations in hand, the notary proceeds with the homologation of the mandate, which makes it active and gives the mandataries the powers outlined in the document.
The social worker: a key player in this process
In Quebec, a psychosocial evaluation is necessary to homologate a protection mandate and this can only be carried out by a social worker. This kind of evaluation allows the social worker to measure the principal’s loss of capacity and determine how it affects their day-to-day life. Following this, the social worker will or will not homologate the mandate.
Social workers like Mr. Lafleur who are part of the team at Clinique GOTM will travel to the principal’s residence to evaluate them. These mobile social workers are all members of their professional order (OTSTCFQ) and have the skills and training necessary to carry out the required psychosocial evaluation.
Mr. Lafleur says that no matter how old you are, you should prepare a protection mandate, because unfortunately no one is immune to the risk of becoming incapacitated…