Role and responsibilities of a mandatary
The protection mandate contains the mandator’s wishes in relation to their personal well-being (housing, care, etc.) and material well-being (management of their patrimony, bank accounts, real estate, etc.).
Their wishes and preferences will guide you in making decisions about them. As their mandatary, you must always act in their best interests and consult with them before taking any action or making any decisions that affect them. You should also maintain a personal relationship with them, whenever possible.
Obligations of a mandatary
Here are your obligations as a mandatary:
- Follow the instructions in the protection mandate and faithfully execute it;
- Make decisions in the best interests of the mandator, while making sure their rights and autonomy are respected, and taking into account their wishes and preferences;
- Involve the mandator in decisions that concern them and keep them informed of what’s happening, whenever possible;
- Ensure the mandator’s moral and material well-being;
- Maintain a personal relationship with the mandator, whenever possible;
- Manage their property with prudence and diligence, honesty and loyalty; in other words, be transparent and fair;
- Conduct an inventory of their property within 60 days of homologation of the protection mandate;
- Arrange for your replacement if you decide to resign;
- Notify the Curateur public of the mandator’s death.
Rendering of accounts
The rendering of accounts is a report submitted by the mandatary on the management of the mandator’s property at a frequency determined in the protection mandate or by the court, where applicable.
Any protection mandate signed on or after November 1, 2022, must include a clause on the rendering of accounts that all acting mandataries to the property must submit and specify the terms (frequency of rendering of accounts, identity of the person who will receive it). The Curateur public may be designated to receive this periodic rendering of accounts. If the mandator has not appointed a person to receive the rendering of accounts, and the mandate was signed after November 1, 2022, the mandate will not be rendered invalid. The court will decide on the terms of the periodic rendering of accounts.
A mandatary is presumed to act free of charge. However, the mandator can specify in their protection mandate if they would like their mandatary to be paid; they can also indicate the amount. If there is no mention of payment in the protection mandate, the mandatary will not be entitled to compensation. However, a mandatary is entitled to be reimbursed for expenses incurred in the course of their duties, when acting on behalf of the mandator.
Mandatary to the person
As mandatary to the person, your role is to ensure the well-being of the mandator. Since mandators’ wishes can vary widely with respect to the protection of their person, please see the protection mandate and the homologation for details.
Mandatary(ies) to the property
As mandatary to the property, your role is to manage the mandator’s property according to the powers given to you by the mandator. Since mandators’ wishes can vary widely with respect to the management of their property, please see the protection mandate and the homologation for details.
In case of difficult decisions
As mandatary, if you are faced with a difficult situation and the mandator is unable to express their wishes on a particular matter, before making a decision, you can consult:
- the people named in the protection mandate;
- the people appointed as substitute mandataries;
- the people close to the mandator.
Their opinions could help reassure you that your decisions are in fact in the mandator’s best interests and reflect their wishes and preferences.
Before making any decision, you should always consult the mandator and ask for their opinion, whenever possible.
If the mandator dies
A homologated protection mandate comes to an end upon the mandator’s death. At that point, as mandatary, you must product a final rendering of accounts of your management to the mandator’s heirs. You must notify the Curateur public of the mandator’s death as soon as possible.
As substitute mandatary, you must:
- be aware of the conditions that would require you to replace the main mandatary;
- apply for homologation of the protection mandate if the main mandatary is unable to do so;
- request the replacement of the acting mandatary if they are not faithfully executing their duties;
- inform the Curateur public of the main mandatary’s death or incapacity;
- take over in accordance with the terms of substitution in the mandate;
- notify the Curateur public as soon as you take over.
If the protection mandate does not list a substitute mandatary, a tutorship will have to be instituted.
Last update: November 27, 2022