Les Résidences et jardins funéraires Bessette

The mandate in anticipation of incapacity

No one likes the idea of losing the capacity to make their own decisions. But it's a fact: a serious accident or illness can rob any of us of our mental faculties.

If this should happen to you, who would look after you and your property? You can decide for yourself by signing a mandate in anticipation of incapacity.

Under the law, a person of sound mind, the "mandator", can sign a document called "a mandate in anticipation of incapacity" appointing an individual to look out for the mandator's welfare and administer his or her property in the event that the mandator should become incapable of doing so. This freely chosen, trustworthy individual is called the "mandatary".

To ensure that your mandate is effective, be careful to make it as complete and precise as possible. Give your mandatary wide-ranging powers and provide for a replacement if your mandatary should resign, die, or become incapable of acting on your behalf. You can also designate one mandatary to ensure your well-being and another to handle your property.

Over time, situations change. As long as you are of sound mind, you can revoke your mandate and draw up another at any time.

Types of mandate in anticipation of incapacity
Quebec law recognizes two types of mandate in anticipation of incapacity:

The mandate in anticipation of incapacity under private signature
This mandate is signed in the presence of two disinterested witnesses. This means your mandatary cannot be one of the witnesses. The witnesses must also be in a position to confirm the mandator's capacity to act at the time of signature.
The mandate in anticipation of incapacity before a notary
Ideally, the mandate should be drawn up in the presence of a notary. There are many advantages to a notarial mandate:

You and your mandatary can obtain as many copies of the mandate as you need, because the original remains in the safekeeping of the notary in whose presence it was signed.
You get the benefit of an experienced lawyer's advice, as well as all the information you need about the important act you are considering.
A notarial mandate guarantees you maximum safety because it is hard to contest. The notary can testify that the signatory fully understood the significance and scope of the mandate and signed the document while in full possession of his or her faculties.

The Register of Mandates kept by the Chambre des notaires du Québec
This is a centralized registration system to ensure that your notarial mandate can be easily located, thus guaranteeing that your wishes are respected. If you opt for a notarial mandate, in addition to advising and guiding you, the notary will record the mandate in the Register.

There are a number of advantages to recording a notarial mandate in the Register:

Any notarial mandate can be readily located.
Your most recent notarial mandate can be identified.
All risk of your mandate being disregarded or found belatedly after you become incapable is eliminated.

Execution of the mandate
If you become incapable, your mandatary must ensure that the mandate becomes effective. This means proving your incapacity by means of a medical, psychological, and social assessment, thus establishing that your consent to the mandate is valid.

The mandatary may do this by applying directly to the court for homologation of the mandate. Or, a much simpler approach is to present an application for confirmation of the mandate's effectiveness to a notary who has been certified by his or her professional order.

Only after the mandatary has obtained a judgement of homologation or a judgement confirming the notarial minutes will he or she be able to assume the role of mandatary.

If the court later ascertains that the mandator has again become capable, the mandate ceases to have effect.

Source : M^e Joanne Désourdy, notary
779, Shefford Street
Bromont
(450) 534-2265