Someone close to you becomes incapable

When someone close to you becomes incapable of taking care of themselves or their affairs and needs representation, here are the first things you need to do:

• involve the people close to them;
• have the person assessed by health professionals;
• try to reach an agreement on the forms of representation considered;
• find out the person’s wishes and preferences about their representation and, if possible, involve them in the process;
• check whether they have a protection mandate.

Incapacity is when a person no longer has the intellectual ability to take care of themselves or to manage their property. A physical disability is not considered an incapacity if the person in question can let his wishes be known.

Incapacity can strike anyone, of any social standing, in any physical condition, at any age or stage of life.

Incapacity can be caused by:

• an intellectual disability;
• a traumatic brain injury;
• a stroke;
• a degenerative disease (e.g., Alzheimer’s disease);
• a mental illness.

Rights of the person under representation

A person who is incapable of taking care of themselves or their affairs is nonetheless a full citizen. The institution of protective supervision limits their legal capacity, since some of their rights must be exercised by their representative.

However, a person under representation still has certain specific rights, including:

• the right to participate in decisions that concern them and to express their wishes and preferences insofar as possible;
• the right to be consulted and informed of decisions made on their behalf;
• the right to have their tutor replaced, if the latter neglects their responsibilities.

There is a need for representation when a person must have someone else exercise their rights on their behalf.

This need for representation can be caused by:

• isolation;
• the duration of the incapacity;
• the nature/state of the person’s affairs;
• the absence of a protection mandate or the inability to homologate one.

The medical and psychosocial assessments are what determine a person’s incapacity and need for representation. These assessments focus on the person’s ability to take care of themselves and their property. They also address the need for them to be represented by another person in exercising their civil rights.

When the person’s incapacity and need for representation are established, steps can be taken with the court to institute a tutorship, to homologate their protection mandate or to fill an application for temporary representation.

However, if the person is well taken care of and their situation does not require the institution of a tutorship, or the homologation of their protection mandate, there are simple solutions that can help them.

Obtaining the medical and psychosocial assessments

If the person is still living at home and already has a family doctor or a social worker, you will need to contact them, as they are the best people to ask about having the person assessed. From there, you can obtain the assessment reports confirming the person’s incapacity and need for representation.

If the person does not have a family doctor or a social worker, you can contact the CISSS or the CIUSSS where they live .

If the person lives in a long-term care centre (CHSLD) or if they are hospitalized, the attending physician and a social worker at the institution will perform the assessments. The institution’s executive director will send the assessment reports to the notary or lawyer, or the person who is taking steps to institute the tutorship. If the assessor recommends instituting a public tutorship, the assessment reports will also be sent to the Curateur public.

If the medical and psychosocial assessments conclude that the person is incapable, you need to check whether they have a protection mandate.

If they have a protection mandate, only the designated mandatary can apply for its homologation. To do so, the mandatary must petition the court (assuming they want to take on this role). Hiring a notary or a lawyer for this step is recommended.

If the person does not have a protection mandate, and the assessment reports show a need for representation, you must petition the court to institute a tutorship for them. You should also consult a lawyer or a notary for these steps. The individual appointed by the court becomes the person’s tutor. If no one can act as tutor, the court may appoint the Curateur public to take on this role.

Friends or relatives can see to the person’s general well-being by making sure their living conditions are adequate (housing, food, clothing, care, recreation, safety, etc.) If the person’s patrimony is straightforward, a family member can also help manage it (bank accounts, bill payments, income tax returns, etc.).

While each situation is unique, there is one constant: Being there for your loved one is the best way to ensure their well-being or the sound administration of their patrimony.

When the person is no longer able to consent to care offered by a health professional, their spouse or, failing that, someone close to them may do so on their behalf, without the need to institute a tutorship or have a protection mandate homologated.

For example, if the person agrees or does not object, loved ones can decide to place them in a facility that meets their needs. Whenever possible, they should do so in a way that respects the person’s wishes.

In an emergency, the physician may act without consent if no one close to the person can be reached quickly.

The institution of a tutorhip requires an application to the court.

Accounting for the person’s wishes and preferences

Anyone who intervenes with or on behalf of an incapable person must act in their best interests, while making sure their rights, privacy and values are respected, and taking into account their wishes and preferences.

As of November 1, 2022, the law will offer improved protection to vulnerable persons. Protective supervision regimes can be adapted to each situation and safeguard the autonomy of these individuals, while taking into account their wishes and preferences and preserving their ability to exercise their civil rights insofar as possible.

The representative must also involve the person in decisions that concern them at all times.

A person who is the subject of an application for institution of a tutorship may contest it. They may also contest the application for homologation of their protection mandate. Similarly, they may challenge their medical and psychosocial assessments or the recommendations stemming from them. During the legal process, the court will give the person the opportunity to speak on the need for and nature of the protective supervision regime, and on the person who will be responsible for carrying it out.

Curateur public’s help

In the event someone close to you becomes incapable and has not prepared a protection mandate, the Curateur public can help you to institute a protective supervision regime:

• It will answer your questions throughout the process of instituting the protective supervision regime;
• It has the power to intervene at all stages of the legal process, to express its opinion and to advocate for the interests of the person concerned. It does so after examining the application and the medical and psychosocial assessments, and:
  • if it considers there is no need to institute a tutorship;
  • if it deems the application to be non-compliant; or
  • when it is told that the person will not be well represented(the Curateur public then has the power to intervene).

When a health and social services institution conducts the medical and psychosocial assessments, the reports are sent to someone close to the person concerned, who has agreed to file an application with the court. If the assessors recommend the institution of a public protective supervision regime, the reports are sent to the Curateur public along with the report from the institution’s executive director.

Upon receipt of the reports and if it agrees with the assessments, the Curateur public will file its recommendation with the court and submit the application to institute a tutorship. It will follow up until a judgment is rendered.

If the Curateur public has any concerns, it will investigate further and contact all parties involved.