Supporting and protecting someone close to you who is vulnerable
Ways to help someone close to you depending on their situation
Someone close to you is living with a difficulty and wants help
Depending on their situation, there is a way you can help.
The assistance measure
The assistance measure allows your loved one to be accompanied and provided advice when taking decisions, managing his property and exercising his rights. All that’s needed is the official recognition of one or two people as assistants. They will then be able to act as intermediaries between the assisted person and third parties (government agencies and departments, service providers, professionals, etc.).
Unlike a power of attorney, under the assistance measure, the assistant cannot sign on behalf of the assisted person or make decisions for them. A power of attorney is a contract whereby your capable loved one authorizes you to represent him and act on his behalf with regard to certain actions concerning his property.
Your incapable loved one is well taken care of
Administration by a third party
Administration by a third party allows you to be designated by government departments and agencies as responsible for managing your loved one’s pension or allowances.
Solutions for spouses who are married or living in a civil union
These solutions are intended for people who are married or living in a civil union. They do not apply to common-law spouses.
A domestic mandate is the power of representation that automatically exists between legally married or civil-union spouses. It allows, for example, a wife to take care of routine family needs when her husband cannot express his wishes (food, clothing, housing, etc.).
The court may authorize a person who is married or living in a civil union to perform an act alone that would normally require the spouse’s agreement, such as selling a car.
The court may give one spouse the power to manage the other spouse’s property or the property under their management pursuant to the matrimonial regime, when the other spouse is unable to express their wishes because of an incapacity. This authorization ceases to be valid when the court revokes it, upon the institution of a tutorship or upon the homologation of a protection mandate.
Someone close to you who is incapable needs a representation measure
When a loved one’s situation requires applying to the court for their legal representation, here are the solutions provided by law.
Temporary representation allows your loved one to be represented for a specific act only. For example, the court may authorize you to renounce a succession or to sell property, if your loved one can manage the proceeds of the sale. You must then act in their best interest, ensuring their rights are upheld while taking into account their wishes and preferences. This temporary representation allows them to continue exercising their rights, except for the one related to the act in question. It ends once the act has been completed. An application to the court is needed to benefit from temporary representation.
Homologation of the protection mandate
If your loved one needs to be represented for several acts, make sure they have drawn up their protection mandate. The court will have to authorize the entry into force of the protection mandate. This is known as homologation.
Until it is homologated or ratified, a protection mandate has no power and does not allow the mandatary to act on behalf of another person.
When an incapable person needs representation and there is no protection mandate or the mandate cannot be homologated, the law provides for the institution of a tutorship to the person of full age.
Tutorship is a representation measure that allows your loved one to be represented by another person for the protection of their person or the management of their property.
The person appointed by the court is called the tutor.
When the tutor is someone other than the Curateur public (parent, family, friend, etc.), this is called a private tutorship.
When no one in your loved one’s life can act as tutor, the court may appoint the Curateur public to take on this role. This is called a public tutorship.
The responsibilities of the tutorship may also be shared between the Curateur public and someone close to the person concerned. For example, a loved one could be appointed as tutor to the person and the Curateur public as tutor to the property. The tutor to the person will ensure the person’s well-being and the exercise of their rights. For their part, the tutor to the property will administer the person’s patrimony, exercise their rights in relation to their property, and represent them in court in any lawsuit involving their property. This is called a mixed tutorship.
Intervening in emergency situations
The steps involved in the homologation of a protection mandate or the onset of a tutorship take a certain amount of time (in other words, the process is not something that can be completed in a day). In the meantime, the law contains provisions in the event an emergency situation arises. These provisions shield your loved one from damages that could result in serious consequences to their property or personal life.
Administration of affairs
Administration of affairs refers to acts required to preserve the property of a person who is unable to act for themselves. For example, you can have your loved one’s roof repaired if it’s leaking or have emergency plumbing work done on a building they own. Expenses you incur in the administration of their affairs will be reimbursed from their patrimony.
Interim protection measures
Interim protection measures can be put in place to prevent serious harm to an incapable person in urgent need of protection. The court may appoint someone to:
- manage their property;
- protect their person; or
- represent them in exercising their rights.
To do so, an application must be filed with the court before or at the same time as the application to institute a tutorship for them. The same goes for applying for the homologation of their protection mandate. This means you could collect the rent for your loved one’s building or hire someone to take care of them at home, for example.
Last update: February 28, 2023