As a result of what has been written previously it is recommended to choose the person most suitable to take care of your belongings that represent your investment as well as of your person while you can do it! There are therefore two separate sections in a protection mandate, i.e. the protection of your person and property protection. In the section concerning your property you give the right to a person, the agent, to perform certain actions on your behalf in the event that you are incapacitated. The powers given to the agent can be very precise and narrow or wide enough to give him a lot of freedom. For instance, you could name your spouse as agent and allow him/her to do anything except sell your income-generating property and remove any particular investment. Remember that it is possible to appoint more representatives who will act together and that you can appoint different people as agent for your property or your person.
After mentioning various aspects concerning the administration of the property of an incapacitated person, it is important to consider the care of that person as well. To choose between giving care or not, or what kind of care, to a person who is incapable of giving consent may be difficult for loved ones. Often it is a taboo in some families. Yet, talking about and writing a mandate of protection could avoid so much trouble!
Thus, concerning the protection of the incapacitated person, one should also make choices, while you can do it, whether it be at the level of consent to treatment, the type of place you want to stay, some indications concerning custody of some more important mementos, or concerning who will take care of your minor children. It is also possible to specify your end-of-life wishes, i.e. putting into writing whether to be or not to be kept alive artificially or asking to prevent care which is disproportionate. It is also possible to include there the consent or refusal to donate organs, and anything you feel is important to your well-being. When one has indicated one’s wishes in writing, it becomes easier for the loved ones to understand your intentions and to make choices accordingly.
The protection mandate, or the mandate given in anticipation of incapacity, is your best protection in case of illness or accident. It is a way to avoid the opening of a protective supervision regime by the court and the consequences that this entails as discussed in Part 1 of this text. Indeed, it is possible, in this document, to plan what will happen in the event that you become incapacitated, and thus avoid the cumbersome procedure already explained. It is not enough either to prepare the document, yet it has to be comprehensive to avoid having to go to court.
The mandate of protection never becomes binding automatically, whether the document be notarized, or not. The first steps consist in obtaining medical and psychosocial assessments, to enable the court to determine the existence of the incapacity and then enforce the mandate.
The mandate of protection can be written by notarial act in the form of minutes or as a private document, before two witnesses who have no interest in the act. On the other hand, the mandate of protection before a notary is the only one that allows to avoid a second procedure, one for the recognition of the validity of a mandate of non-notarial protection. This step of recognizing the validity of the protection mandate is therefore avoided when made before a notary. The latter provides a deed: the notary is obliged to verify the identity, the ability and willingness of the signatories.
Moreover, evidence of the protection mandate before witnesses is provided through the presentation of the original mandate. If it is impossible to find it, it will obviously be impossible to put it into force.
You are also certain not to lose the protection mandate when it has been written before a notary, since its existence is published in the register of wills and mandates of the Chamber of Notaries of Quebec and because the original will be kept away from fire at the notary’s, securely and confidentially.