If an accident occurs that causes you to become incapacitated, do you know what will happen? Who will take care of you and your property if you cannot do it anymore? And of your children? Be aware that incapacity can take many forms and can have different intensities. For example, it may be due to a coma following an accident or a degenerative disease. Indeed, the law deals with incapacity in the following terms:
“258. A tutor or curator is appointed to represent, or an adviser to assist, a person of full age who is incapable of caring for himself or herself or of administering property by reason, in particular, of illness, deficiency or debility due to age which impairs the person's mental faculties or physical ability to express his or her will.”
It is wrong to believe that if problems arise, your spouse, whether you are married or in civil union, automatically has the ability to execute or perform certain acts on your behalf. When the incapacity is recognized and you have not seen to the development of a document preparing for such an eventuality, a judicial procedure is initiated to create a system of protection and therefore it is the court which will appoint the person responsible to care for you and your property. The decisions and actions of that person will be subject to the supervision of the Public Trustee and of a tutorship council made up of some of your relatives.
Initially, any decision taken by the person who takes care of you and your property must be made in the interest of the incapacitated person, yourself thus, in our example. If you want this person to take into consideration the needs of your children or your spouse, you must see to that. You can give permission to your spouse and children to continue to use the property that you own. For example, your spouse can continue to live in your house and your agent can continue to pay the school fees of your children. The lack of such planning could cause worries to your loved ones, because the agent or guardian, under the law, has the obligation to manage in the interest of the incapacitated adult only.
It is also important to know that the person appointed by the court to look after your property, must obtain the consent of the tutorship council and even the court to perform certain actions. For instance, the guardian appointed by the court, must obtain court permission of the court to mortgage or sell property worth more than $25,000, such as an income property, or your main residence. A mandate of protection may change these obligations or withdraw them and give full authority to the agent, according to your wishes.
In addition, the law is strict to the effect that he who administers the property of the incapacitated adult cannot be a party to a contract affecting the administered property. That is to say that an agent spouse or guardian cannot buy property belonging to you if she wants to continue using it for the family, or still, by authorization of the court. The spouse, if she is also the agent or guardian, would then end up in a conflict of interest preventing her from buying the house, or the car of the incapacitated person, unless there are legal proceedings, or also unless this permission is clearly stated in a protection mandate.