Obligations of tutors and the tutorship council

Upon the institution of a tutorship and throughout its duration, the tutors and the tutorship council have specific obligations they need to fulfill.

When you are appointed as a tutor to the person, you become responsible for ensuring the well-being of the represented person.

You must encourage them to participate in decisions that concern them, insofar as possible. You must act in their best interest at all times, while making sure their rights and autonomy are respected, and taking into account their wishes and preferences.

More specifically, you will need to:

• ensure their moral well-being;
• defend their rights;
• assist or represent them in making decisions, where applicable;
• maintain a personal relationship with them, whenever possible;
• consent to or refuse care on their behalf, if they are incapable of doing so;
• have the represented person be reassessed.

You are also responsible for their care, unless the court determines that the represented person does not need a guardian. This responsibility includes your involvement in:

• deciding where the person concerned will live;
• choosing their friends and associates, so as to limit contact with people who could cause them harm, e.g., maltreatment or financial abuse.

As part of your duties, you must submit a rendering of accounts to the tutorship council and the Curateur public of your actions toward the represented person.

Ensuring the represented person’s moral well-being

Depending on their financial means and situation, you must ensure, for example, that the represented person’s living conditions are adequate, that their needs are met (housing, food, clothing), and that they have access to enjoyable recreational activities and outings.

To help you, you can list some of these things on the Report regarding the representation of the person form (PDF 44 Kb).

You must also encourage the person to continue doing the things they are still capable of doing for themselves.

Defending the represented person’s rights

You must advocate for the represented person’s rights by ensuring:

• that the people who interact with them ask for their opinion and take their wishes and preferences into account;
• that third parties meet their obligations toward them;
• that you intervene when their rights are violated.

Representing the person in the exercise of their civil rights

When the situation requires it, you must make decisions on the represented person’s behalf while still involving them in the process. These decisions must take into account their wishes and preferences and be based on the following principles:

• their sole interest;
• respect for their rights;
• the preservation of their autonomy.

Among other things, you are also responsible for:

• protecting the represented person’s personal information;
• authorizing access to their medical record;
• authorizing the taking of their photo and the recording of their voice.

Consenting to care

When the represented person is unable to consent to care offered to them, and if they do not have an advance medical directive (AMD) or if the AMD does not cover the care in question, the medical staff will ask you to consent on their behalf.

You must then try to determine what the represented person might have wanted in the past, prior to the incapacity. In consenting to or refusing care on their behalf, whenever possible, you must honour the decision they might have made themselves. See the Consent to care page for more details. 

Having the represented person reassessed

You must have the represented person reassessed. These reassessments help determine if the tutorship is still appropriate for their needs. If changes are needed, the assessment reports will be filed with the court to allow for any adjustments to be made.

The reassessments may also find that the person has become capable again or no longer needs representation, which will result in the tutorship being terminated.

In the absence of a tutor to the person, the tutor to the property must arrange for the reassessments in a timely manner.

See the document Protecting a person under tutorship – Guide for the tutor and the tutorship (PDF 3.15 Mb) council for more information on the reassessments.

Submitting a rendering of accounts on your representation of the person

As the tutor to the person, you must report on the actions taken to ensure their well-being. This involves providing the tutorship council and the Curateur public with various information about their well-being, as needed. You can use the Report regarding the representation of the person form (PDF 44 Kb) available from the Curateur public.

As the tutor to the property, you must manage the represented person’s patrimony and ensure its value is maintained. You must also represent them in court in any lawsuit involving their assets.

You must inform the represented person or the tutor to the person (where applicable) about your administration of their patrimony and involve them in any decisions to be made.

At all times, you must act with caution, diligence, honesty and loyalty. In other words, you must be transparent and perform your tasks expeditiously and in good faith. In administering the represented person’s patrimony, you must act in accordance with your legal obligations and the precisions set out in the judgment appointing you as tutor to the property. These obligations include:

• making an inventory of the person’s patrimony within 60 days of the institution of the tutorship and submitting it to the tutorship council and the Curateur public;
• providing a security, i.e., a guarantee that protects the represented person’s patrimony, if the value of the patrimony under your administration exceeds $40,000;
• keeping your personal assets and income separate from those of the represented person (you cannot use your personal accounts to manage their patrimony);
• submitting an annual rendering of accounts on your administration.

In your role as tutor to the property, you have the power of simple administration. Simple administration requires that you obtain authorization from the tutorship council or the court to perform certain acts.

As such, you need authorization from the tutorship council to:

• renounce a succession left to the represented person;
• accept a donation with a charge on behalf of the represented person, i.e., a donation with obligations attached. For example, if the represented person is gifted a building with an outstanding mortgage balance;
• sell any furniture or valuables belonging to the person;
• modify the security.

The court’s authorization is required to:

• sell a building worth more than $40,000;
• take out a mortgage worth more than $40,000.

To help make its decision, the court will consult with the tutorship council before issuing the judgment authorizing you to perform the act.

In the absence of a tutor to the person, it is your responsibility to arrange for the represented person’s reassessments in a timely manner.

See the document Protecting a person under tutorship – Guide for the tutor and the tutorship council (PDF 3.15 Mb) for more information.

Making an inventory of the person’s patrimony

You must make an inventory consisting of a list of all possessions belonging to the represented person worth $100 or more, as well as their debts. The inventory will help you determine the represented person’s budget and help the tutorship council set the amount of the security. It will act as a reference when it comes time to submitting a rendering of accounts on your administration at the end of the tutorship.

Providing the security

The security is a guarantee that the tutor must provide when the value of the represented person’s patrimony exceeds $40,000. The amount and type of the security, and the deadline for providing it, are determined by the tutorship council, which has six months following the institution of the tutorship in which to do so, failing which the Curateur public may step in. This will ensure that the represented person’s patrimony is protected.

Managing the represented person’s finances and property

Depending on the responsibilities entrusted to you, you must follow certain rules to ensure the sound management of the represented person’s finances and property. You must, for example:

• establish a separate patrimony, by changing the status of the person’s investments and bank accounts to “as tutor” or “in the capacity of tutor”, hence the term “in the capacity of”;
• establish and receive the person’s income and benefits, where applicable. You must also take the necessary steps to ensure they receive all government and other benefits to which they are entitled;
• establish a budget for the represented person, based on their income and expenses (housing, food, debts, etc.). If they have any financial obligations, these must be factored into the budget. You must also include the costs associated with the responsibilities of the tutorship, i.e., expenses directly related to the administration, protection and conservation of the patrimony. These include, for example, an accountant’s fees for preparing the annual reports, where applicable, or the cost of purchasing an insurance policy.

You must use an accounting sheet to keep track of income and expenses. It can be electronic or handwritten and must include one section for income and another for expenses. Keeping this sheet up to date will allow you to report more easily on your administration at the end of each year.

You will find more information in the document Protecting a person under tutorship – Guide for the tutor and the tutorship council (PDF 3.15 Mb).

Making investments presumed sound

If the represented person’s money needs to be invested, you must do so in presumed sound investments in order to protect their money from a possible loss in value. If you fail to do so, you will be held responsible for any losses. Ask a financial advisor about presumed sound investments.

Submitting a rendering of accounts on your administration

By accepting the role of tutor to the property, you agree to submit an annual rendering of accounts on your administration to:

• the represented person;
• the tutorship council;
• the tutor to the person (where applicable); and
• the Curateur public.

The rendering of accounts is a report on your administration and a justification of all expenses incurred and actions taken on behalf of the represented person.

You must also produce a final administration report at the end of your term as tutor to the property and submit it to:

• the person concerned, when the tutorship ends;
• their heirs, if they are deceased;
• your replacement (where applicable);
• the tutorship council; and
• the Curateur public.

The Curateur public provides tools and forms to help you with your administration reports.

As the tutorship council, your role is primarily to:

• act in the interest of the represented person, while making sure their rights and autonomy are respected, and taking into account their wishes and preferences;
• monitor the tutor’s administration of the represented person’s patrimony (income, expenses, investments, etc.);
• ensure that the tutor is acting in the represented person’s best interests, by making decisions that reflect their wishes and preferences;
• ensure that the tutor is looking after the represented person’s well-being and taking actions to defend their rights, where applicable.

You are also responsible for:

• determining the type and amount of the security that the tutor must provide, if the value of the represented person’s patrimony exceeds $40,000. You must do so within six months following the institution of the tutorship, failing which the Curateur public may step in. You must also set a time limit for the tutor to provide the security;
• verifying the documents that the tutor must produce and give to you. This includes:
  • the inventory of the represented person's property;
  • the annual management reports and all supporting documents and materials;
  • the final administration report;
• encouraging conflict resolution between the tutors;
• asking the court to appoint an ad hoc tutor to protect the represented person’s interests when they find themselves in a potential legal conflict with their tutor;
• keeping all documents related to the tutorship;
• ensuring the tutor is replaced if they are no longer able to perform their duties, if they die, or if they fail to fulfill their obligations.

Since the tutor has the power of simple administration, they will need your permission or the permission of the court to perform certain acts.

They will need to get your permission, for example, to:

• renounce a succession left to the represented person;
• accept a donation with a charge on behalf of the represented person, i.e., a donation with obligations attached;
• sell any furniture or valuables belonging to the person;
• modify the security.

Your opinion will be sought by the court, in particular, to authorize:

• the sale by the tutor of a building worth more than $40,000;
• compensation for the tutor;
• a mortgage loan taken out by the tutor for more than $40,000;

See the document Protecting a person under tutorship – Guide for the tutor and the tutorship council (PDF 3.15 Mb).

The secretary of the tutorship council is appointed when the tutorship is instituted. They may or may not be a member of the tutorship council. They are responsible for taking the minutes of the tutorship council meetings and for keeping all associated documents.

At the end of the tutorship, these documents must be given to:

• the person who was under tutorship; or
• their heirs (if they are deceased).

The secretary can receive compensation set by the tutorship council and authorized by the court.