Introduction General concepts Private regimes of protective supervision Curatorship Responsibilities of the curator with respect to the protected person himself Responsibilities of the curator with respect to the protected person’s property Administration of property (Curator) The tutorship council (Curator) Tutorship Responsibility of the tutor toward the protected person himself The responsibilities of the tutor with respect to the protected person’s property Administration of property (Tutor) The tutorship council (Tutor) The appointment of an advisor Mandates given in anticipation of incapacity Public regimes of protective supervision Additional information on tax credits for caregivers 2011-2012 (French only PDF document) Tax benefits for caregivers and the people they care for (2012) (French only PDF document)
Responsabilities : Protection Conclusion
Amyotrophic lateral sclerosis is a disease which affects the nervous system. The majority of people affected retain their mental faculties until the end of their life, however, some may develop complications, which may lead them to become physically or mentally incapable of looking after their own affairs and making their own decisions.
The law has provided a number of mechanisms to protect such individuals, providing them with tools to deal with situations which would otherwise be problematic.
The PDF that follows attempts to provide a general overview of the legal aspects which could be of interest to persons affected by ALS and their families.
What follows is neither an exhaustive list nor a legal opinion, and each person affected is advised to seek a specific legal opinion relevant to his or her situation by consulting a lawyer or a notary, or by requesting information from the office of the Quebec Public Curator at :
www.curateur.gouv.qc.ca/cura/fr
514-873-4074
In Quebec, the legal principles which govern protective supervision can be found in the Civil Code of Quebec and the Public Curator Act. As ALS primarily affects people having attained the age of majority, we shall limit ourselves to that group, putting aside the issue of protective supervision of minors.
The law sets out two types of protective supervision for persons of full age: private and public. Private supervision is governed by the Civil Code of Quebec, which sets out three specific regimes :
- curatorship
- tutorship
- appointment of an adviser
The Civil Code of Quebec also provides that a person may, while still fit to make his own decisions, appoint a person of his choice, provided that person is of full age, in order to look after his needs if he becomes incapable. This institution is known as a mandate given in anticipation of incapacity.
Public regimes of protective supervision are set out in the Public Curator Act.
Private regimes of protective supervision
A person afflicted with ALS can be represented by a curator or a tutor, or advised by an adviser, if that person is incapable of looking after himself or administering his property, for example if the person’s mental faculties or physical ability to express his or her wishes are affected.
In the choice of a regime of protective supervision, consideration is given to the degree of incapacity of the person to look after himself or administer property. The curator or tutor is given custody of the protected person and is responsible for his upkeep. He must also look after the person’s moral and material wellbeing, in light of the person’s condition, needs, faculties and other relevant circumstances.
Protective supervision is established in the interests of the person affected by the disease and is designed to ensure the protection of his person, the administration of his property and, in general, the exercise of his civil rights. All decisions must be made with the sole interest of the protected person in mind, as well as the protection of his rights and autonomy.
The opening of a regime of protective supervision is effected by a decision of the court. This can be done at the request of the protected person himself, his spouse, close relatives and family, any person who shows an interest in the person, or any other person having an interest of any kind, including the Executive Director of a hospital in certain cases set out by statute.
A curator is the legal representative of a person who is totally and permanently incapable and thus requires legal representation in all aspects of his life.
The curator represents the protected person in all civil acts. He looks after the person’s wellbeing and administers his property with care. The curator is not remunerated, unless the court decides otherwise.
Responsibilities of the curator with respect to the protected person himself
The curator looks after the custody and upkeep of the protected person and insures his moral and material wellbeing. Among other things, he must :
- ensure respect of the person’s rights. For example, he may consent to or refuse consent to medical treatment or surgery in the name of the person; The curator must therefore ensure that the treatment proposed to the person represented is beneficial, appropriate in the circumstances and that the risks associated with it are not out of proportion with the expected benefits.
- represent the protected person in the exercise of civil rights and in any judicial proceedings. The curator may, as required, retain the services of legal counsel;
- see to it that a medical and psychosocial evaluation of the protected person is carried out every five years, unless the court has provided for shorter intervals.
The curator may delegate certain tasks concerning the custody and upkeep of the protected person, but he must maintain a personal relationship with him. Moreover, he must, to the extent possible, seek the protected person’s opinion and inform him of any decisions made on his behalf.
Responsibilities of the curator with respect to the protected person’s property
The curator must administer the protected person’s property in a prudent, diligent and competent manner. Among other things, he must :
- establish an inventory of the protected person’s property within 60 days of the opening of the curatorship regime, describe all such property (assets and liabilities) belonging to the person at the time of the opening of the curatorship regime. A copy of the inventory must be sent to the Public Curator within two months of the curator’s appointment, as well as to the tutorship council;
- if the value of the property to be administered exceeds $25,000.00, the curator must provide security guarantying his administration and advise the tutorship council and the Public Curator of same;
- avoid putting himself in a situation of conflict of interest, for example by not renting, purchasing or otherwise using for his own purposes the property belonging to the protected person or the fruits of such property;
- provide an annual report of his administration to the Public Curator. The latter provides a form to be filled out to that effect. The Public Curator can require that an audit of the books and accounts be performed by an accountant if the value of the property exceeds $100,000.00 or if he has serious reason to believe that the protected person may suffer harm from the curator’s administration. The curator must also provide a copy of his annual report to the tutorship council;
- at the end of his mandate, provide an accounting of his administration to the protected person or his heirs and remit the property he has administered. The curator must send a copy of his accounting to the tutorship council, as well as the Public Curator.
The curator has full administration of property. As a result, it is his responsibility not only to preserve it, but also, to the extent possible, to cause it to fructify and grow. In the execution of his duties, the curator is permitted to borrow, hypothecate property, modify its use and composition, sell it, etc., without prior authorisation.
He may make investments with the property he is administering. These investments must be presumed sound, i.e. correspond to those set out in the Civil Code of Quebec.
By way of example, the curator may invest all of the protected person’s property in bonds, hypothecs or immoveable property. He must, however, attempt to maintain such liquid assets as those required for the person’s regular expenditures and compose a diversified portfolio.
The curator may also deposit money with a bank or other savings, credit or financial institution, provided that the deposits are reimbursable on demand or upon notice of no more than 30 days.
He may also deposit money for a longer term, if reimbursement is fully guaranteed by the Régie de l’assurance dépôts du Québec. Otherwise, he may only do it with the authorisation of the court, upon the terms and conditions that the latter sets out.
Any investment made by the curator which is not in conformity with the law renders the curator personally liable, without any further proof of fault being required. He is also civilly liable if he performs acts which are prejudicial to the protected person.
The curator is also liable for damages resulting from poor administration. It is therefore important that the curator act upon advice and counsel, given the important implications which his administration may have for his own liability.
The curator must be assisted by a tutorship council composed of three members and a secretary, appointed by a meeting of relatives, persons connected by marriage or friends, brought together by the court or a notary, usually at the time of the opening of a regime of protective supervision. Among other things, the tutorship council has the following responsibilities :
- meet at least once a year and invite the curator to its deliberations;
- ensure that the curator completes the inventory of the protected person’s property and that he provides and maintains security where required by law;
- receive the curator’s annual report;
- provide its opinion to the court, notably with respect to any judicial application for authorisation by medical care, the curator’s remuneration, etc.;
- ask the court to replace the curator if he is unable to exercise his duties, is deceased or fails to respect his obligations;
- The secretary to the tutorship council must draft and keep minutes of the council’s deliberations.
Tutorship is a regime of protective supervision for a person who is partially or temporarily unable to look after himself and administer his property.
At the time of the opening of the tutorship regime or even thereafter, the court may determine the degree of capacity of the protected person, taking into account a medical and psychosocial evaluation or the opinion of the family council.
The court may also determine the acts which the protected person may carry out himself, alone or with the assistance of a tutor, or the acts for which the tutor’s representation is required. The extent of the tutor’s responsibilities is set out in the judgement appointing him: the tutor’s responsibilities may extend to the person, his property, or both.
The tutor must represent the protected person in all civil acts according to the terms of the judgement. He must look after the person’s wellbeing and administer his property with care, diligence and competence.
Any decision concerning the protected person must be made in his interest, with a view to respecting his rights and preserving his autonomy. The tutor is himself supervised and assisted in his work by the tutorship council.
The tutor is not remunerated, unless the court decides otherwise.
Responsibility of the tutor toward the protected person himself
The responsibilities of the tutor can be summed up as follows, subject to the judgement of the court :
- ensure respect of the person’s rights. For example, he may consent to or refuse consent to medical treatment or surgery in the name of the person. The tutor must therefore ensure that the treatment proposed to the person represented is beneficial, appropriate in the circumstances and that the risks associated with it are not out of proportion with the expected benefits;
- represent the protected person in the exercise of civil rights and in any judicial proceedings. The curator may, as required, retain the services of legal counsel;
- see to it that a medical and psychosocial evaluation of the protected person is carried out every three years, unless the court has provided for shorter intervals.
The tutor may delegate certain tasks concerning the custody and upkeep of the protected person, but he must maintain a personal relationship with him. Moreover, he must, to the extent possible, seek the protected person’s opinion and inform him of any decisions made on his behalf.
The responsibilities of the tutor with respect to the protected person's property
The responsibilities of the tutor with respect to the protected person’s property The tutor who is charged with the administration of the protected person’s property must administer the protected person’s property in a prudent, diligent and competent manner. Among other things, he must :
- establish an inventory of the protected person’s property within 60 days of the opening of the tutorship regime, describe all such property (assets and liabilities) belonging to the person at the time of the opening of the curatorship regime. A copy of the inventory must be sent to the Public Curator within two months of the tutor’s appointment, as well as to the tutorship council;
- if the value of the property to be administered exceeds $25,000.00, the tutor must provide security guarantying his administration and advise the tutorship council and the Public Curator of same;
- avoid putting himself in a situation of conflict of interest, for example by not renting, purchasing or otherwise using for his own purposes the property belonging to the person he represents or the fruits of such property;
- obtain the authorisation of the tutorship council or the court before selling, hypothecating or otherwise disposing of the property of the protected person;
- provide an annual report of his administration to the Public Curator. The latter provides a form to be filled out to that effect. The Public Curator can require that an audit of the books and accounts be performed by an accountant if the value of the property exceeds $100,000.00 or if he has serious reasons to believe that the protected person may suffer harm from the tutor’s administration. The tutor must also provide a copy of his annual report to the tutorship council;
- at the end of his mandate, provide an accounting of his administration to the protected person or his heirs and remit the property he has administered. The tutor must send a copy of his accounting to the tutorship council, as well as the Public Curator.
The tutor is charged with simple administration of the protected person’s property. This means that he has the duty to do what is required for the preservation and maintenance of the moveable and immoveable property. However, he is not entitled to dispose of it without the authorisations prescribed by law.
The tutor is entitled to invest the property, but the investments must be presumed sound, according to the provisions of the Civil Code.
By way of example, the tutor may invest all of the protected person’s property in bonds, hypothecs or immoveable property. He must, however, attempt to maintain such liquid assets as those required for the person’s regular expenditures and compose a diversified portfolio.
Any investment made by the tutor which is not in conformity with the law renders the tutor personally liable, without any further proof of fault being required. He is also civilly liable if he performs acts which are prejudicial to the person he is representing.
The tutor is also liable for damages resulting from poor administration. It is therefore important that the tutor act upon advice and council, given the important implications which his administration may have for his own liability.
The tutor must be assisted by a tutorship council composed of three members and a secretary, appointed by a meeting of relatives, persons connected by marriage or friends, brought together by the court or a notary, usually at the time of the opening of a regime of protective supervision. Among other things, the tutorship council has the following responsibilities:
- meet at least once a year and invite the tutor to its deliberations;
- ensure that the tutor completes the inventory of the protected person’s property and that he provides and maintains security where required by law;
- provide its authorisation to the tutor in certain situations;
- provide its opinion to the court, notably with respect to any judicial application for authorisation for medical care, the tutor’s remuneration, etc.;
- receive the tutor’s annual report;
- ask the court to replace the tutor if he is unable to exercise his duties, is deceased or fails to respect his obligations.
The court appoints an advisor for the protected person if the latter, although generally or habitually capable of looking after himself and administering his property, nevertheless requires, temporarily or for certain acts, assistance or advice in the administration of his property.
The advisor appointed by the court is not charged with the administration of the protected person’s property and is not his legal representative according to law.
The court indicates for which acts the assistance of the advisor is required or, conversely, those for which it is not.
Mandates given in anticipation of incapacity
Since 1990, the Civil Code allows any person of full age, while he is of sound mind, to prepare a mandate to provide for his care in the event that he becomes incapable of making his own decisions. This is known as a mandate given in anticipation of incapacity and it is highly recommended that any person with ALS prepare such a mandate in order to set out his wishes with respect to his eventual state of incapacity.
The mandate in anticipation of incapacity is a written document by which a person, called the mandator, appoints, while he is still lucid, another person, called the mandatary, to look after his person and/or the administration of his property, in the event that illness temporarily or permanently deprives him of his faculties.
The content of the mandate is entirely at the discretion of the mandator. For the protection and wellbeing of his person, the mandator may include his wishes for the end of his life. According to the wishes of the mandator, the provisions concerning the administration of his property may either be drafted in very general terms, or instead in a very detailed manner with a specific list of administrative responsibilities.
The mandator may also appoint more than one mandatary: for example, one for the protection of his person and another for the administration of his property. He may also appoint a replacement mandatary, in the eventuality that the principal mandatary refuses to have the mandate homologated or is for some reason unable to execute the mandate or is himself deceased. The mandator may also establish the basis of the mandatary’s remuneration.
The law provides for two types of mandate in anticipation of incapacity. The first is prepared before a notary. It is registered with the Chambre des notaires and can be located easily if its author becomes incapable. The second type requires the presence of two witnesses who have no interest in the mandate.
We suggest that those who opt for the second type of mandate, i.e. before witnesses, keep the original in a secure place, inform the mandatary of where it is located and give him a copy. But regardless of which of the two forms is chosen, it is always sound advice to inform family and close relations of the mandate and of the identity of the mandatary.
Such a precaution is helpful, since it will allow them to react quickly if the person becomes incapable and decisions must be made with respect to his person and his property.
Regardless of the form chosen, the mandate in anticipation of incapacity does not become executory until it has been homologated by the court. This involves being examined by a clerk or a judge of the Superior Court of the judicial district where the mandator has his domicile or residence.
Homologation is a judicial proceeding which enables the court to verify the mandator’s incapacity, the existence of the mandate and its validity if signed before witnesses. It is the mandatary’s responsibility to obtain homologation of the mandate.
The application must be accompanied by copies of the mandate and of the medical and psychosocial evaluations which indicate that the mandatary is incapable. Homologation is a formal procedure which requires a certain amount of time. In order to accomplish it, the mandatary may have recourse to legal counsel (notary or lawyer).
Along with judicial homologation, there is now a process in place by which a notary can take responsibility for a person requiring protective supervision. However, the notary must submit the conclusions of his minutes to the court clerk or judge. Only certain notaries are entitled to use this more expeditious process.
If your personal or financial situation is complex, we advise you to consult a notary or a lawyer in the preparation and drafting of your mandate.
The Public Curator has a registry of homologated mandates. This registry contains various information, including the first and family names of the mandator and mandatary, the date and number of the homologation judgement.
The Public Curator also has the power to intervene in any judicial proceedings with respect to the homologation or the revocation of a mandate. If the incapable person regains his health and the use of his faculties, he, as well as the mandatary or any other interested person, may institute the necessary judicial proceedings to terminate the mandate.
If the person becomes incapable without having prepared such a mandate, the various types of protective supervision discussed above will apply, pursuant to the Civil Code of Quebec.
Public regimes of protective supervision
The Public Curator is vested with the responsibility of protecting incapable citizens by measures appropriate to their state and situation. He must ensure that all decisions taken with respect to their person and property are in their best interests and respect their rights and the preservation of their autonomy.
He informs the population and professional caregivers and makes them aware of the special needs of incapable persons requiring protection. He is also charged with the temporary administration of unclaimed property. He manages such property on a temporary basis and ensures that it is remitted to its rightful owner or, failing that, to the State.
The Public Curator has offices in the major cities in the province and much useful information can be gleaned from his website at the following address www.curateur.gouv.qc.ca. Some of the information in the present section comes from that site.
Responsabilities
The Public Curator does not look after all persons who are presumed, evaluated or legally recognised as incapable; many such persons will never come under his administration or supervision and will have no need to be. He shares this responsibility with others, primarily families and close relations, as well as professional caregivers in the health services and social services network.
The Public Curator looks after the protection of the individuals he represents, those under temporary administration, as well as those who are under private tutorship or curatorship. He has a register of legally represented persons. He is also entitled to investigate situations where there are potential concerns with respect to protection.
Each person is protected by those measures which are most appropriate to his situation. The Public Curator seeks to recognise the potential autonomy of incapable persons and attempts to maximise it; he gives consideration to their opinion and wishes in the decisions he must take in their name and in their best interests, be it with respect to their person or their property. If your personal or financial situation is complex, we advise you to consult a notary or a lawyer in the preparation and drafting of your mandate.
The Public Curator has a registry of homologated mandates. This registry contains various information, including the first and family names of the mandator and mandatary, the date and number of the homologation judgement. The Public Curator also has the power to intervene in any judicial proceedings with respect to the homologation or the revocation of a mandate. If the incapable person regains his health and the use of his faculties, he, as well as the mandatary or any other interested person, may institute the necessary judicial proceedings to terminate the mandate.
If the person becomes incapable without having prepared such a mandate, the various types of protective supervision discussed above will apply, pursuant to the Civil Code of Quebec.
The Public Curator also offers information and assistance to private tutors and curators whose administration he supervises, as well as to tutorship councils. With respect to mandataries, in addition to having a register of homologated mandates, the Public Curator intervenes when informed of situations involving abuse or negligence. The population at large has access to the information the Public Curator disseminates with respect to various topics relating to incapacity.
In order to fulfil his protective mission, the Public Curator maintains relations and collaboration with several partners. Families and close relations of incapable persons are by their very nature special collaborators, as are professional caregivers in the health services and social services network who work with the protected persons, as well as several government departments and organisations.
The Public Curator also seeks to foster the collaboration of associations which represent or serve persons having the same characteristics as his clientele. He also deals with suppliers of goods and services, both public and private, on behalf of the individuals he represents.
The purpose of the present document is to present, in summary form, the various legal aspects which can be of interest to persons affected by ALS and their close relations. It is not a legal opinion and we strongly advise the individuals concerned to consult legal counsel, either a notary or a lawyer, in order to find the best solution for their specific case.
Others could usefully contact the office of the Public Curator, which offers certain services to incapable persons who are without legal representation.
