Requesting the institution of a tutorship for a person of full age

The institution of a tutorship can be requested when a person has been declared incapable and needs to be represented to exercise their rights.

The institution of a tutorship can be requested by one of the following persons:

• the person concerned or their spouse;
• a family member;
• a friend or someone who shows an interest in them, e.g., an informal caregiver;
• the Curateur public, following a report by the executive director of a health and social services institution, including a Centre intégré de santé et de services sociaux (CISSS) or a Centre intégré universitaire de santé et de services sociaux (CIUSSS).

The institution of a tutorship can be a complicated affair. You will need to consult a lawyer or a notary to guide you through this legal process.

The institution of a tutorship entails costs (court and bailiff fees, notary’s or lawyer’s fees, etc.). Depending on the financial situation of the person concerned, these costs may be charged to their patrimony, unless the court decides otherwise. They may also be covered in whole or in part by legal aid .

The Curateur public also bills fees when it initiates the tutorship itself.

The institution of a tutorship is a multi-step process.

Step 1: Obtaining medical and psychosocial assessments

Medical and psychosocial assessments are required for any application to institute a tutorship for the person concerned. They demonstrate the person’s incapacity and need for representation. The assessments are done by professionals in the public or community health and social services network, or in private practice (for a fee).

The medical assessment is done by a physician. The psychosocial assessment is done by a social worker or by a person authorized by the Professional Code. 

Step 2: Drawing up and file the application to institute a tutorship with the court

An application is filed with the court of the judicial district where the person resides . It can also be filed with a notary.

The application must be accompanied by the medical and psychosocial assessments.

A copy of the application must also be sent to the person concerned.

Step 3: Interviewing the person concerned by the application

The person concerned is interviewed by the judge, the special clerk or the notary. The purpose of this meeting is to determine the person’s incapacity and to obtain their opinion on the institution of the tutorship and on the person who will act as their tutor. At this point, the person can contest the application to institute a tutorship, if they believe they do not need it. They can also hire a lawyer to contest it, if necessary.

If the application is contested, a hearing will be held before a judge. When the time comes, the person concerned can attend the hearing or be represented by their lawyer, if necessary.

Step 4: Calling a meeting of relatives, persons connected by marriage or civil union, or friends

The meeting of relatives, persons connected by marriage or civil union, or friends is a meeting of the immediate family and people close to the person concerned by the application. It is held at the office of a notary or at the court where the application for tutorship was filed.

The purpose of this meeting, which is called by the special clerk or the notary, is to inform the immediate family and people close to the person of the application to institute a tutorship. This is an opportunity for them to express their views on the institution of a tutorship, the choice of tutor(s), and the members of the tutorship council.

The person concerned can attend the meeting or be represented by a lawyer.

Designating the members of the tutorship council

The tutorship council usually consists of three people chosen from among the family members and people close to the person concerned. A secretary is also chosen, along with substitutes, in the event a member has to withdraw from the council.

When the situation warrants it, the tutorship council may consist of only one person, in which case, that person will also act as secretary.

The Curateur public may also be appointed as the tutorship council, if necessary.

Designating a tutor

A tutor is a person appointed by the court to ensure the protection of the person or the administration of their patrimony and, in general, the exercise of their civil rights. Priority is given to the people close to the represented person.

As a last resort, the Curateur public may also be appointed as tutor.

Designating a substitute tutor

A substitute tutor may be designated at this stage. If the first tutor dies, resigns or becomes incapable themselves, the substitute tutor will take over. To do so, they will have to file an acceptance of their duties as tutor with the court.

Designating a substitute tutor at the time the tutorship is instituted avoids the need for these extra steps.

Step 5: Judgment (court decision)

The final step in the application to institute a tutorship is the court judgment. If the court grants the application, it will institute the tutorship and appoint the tutor, the substitute tutor, and the members of the tutorship council. The following are then informed of the judgment: the person now under representation, the tutor, and the Curateur public.

In rendering the judgment, the judge or the special clerk takes into account:

• the medical and psychosocial assessments;
• the interview with the person;
• the opinions heard during the meeting of relatives, relatives by marriage, and friends;
• any other relevant information.

The tutorship is adapted to the situation of the person concerned. This is known as personalization of the tutorship, and includes the nature of the tutorship, the time limits for the reassessments, and the modulation of the tutorship.

Nature of the tutorship

The court determines the nature of the tutorship, i.e., to the person, to the property, or both. The court usually appoints just one tutor to take care of the person and their property. When the situation requires it, multiple tutors can be appointed, including:

• a tutor to the person to look after the person concerned’s well-being, ensure the exercise of their civil rights, and defend their rights; and
• one or more tutors to the property to manage their patrimony, i.e., their assets (buildings, cars, land, etc.) and finances (income, investments, expenses), and to exercise the related rights.

The court can also appoint both parents of the person concerned as tutors to the person. It will base its decision on the person’s best interests, wishes and preferences.

When the Curateur public is the tutor, the tutorship is said to be public. In all other cases, it is private.

Time limits for reassessment

The court sets time limits for the medical and psychosocial reassessments, based on the recommendations of the physician and social worker, the opinion of the represented person, and their circumstances and needs. The time limits for both reassessments may be different, but they cannot exceed five years. However, where it is clear that the represented person’s condition will not change, the time limit for the medical reassessment may be longer than five (5) years, but no more than ten (10) years.

However, the represented person may request a reassessment at any time. The tutor may also make the request.

Modulation of the tutorship

The law stipulates which acts a represented person may or may not perform. The court may modify or specify these acts based on the person’s faculties (capacities) and on: 

• the person’s medical and psychosocial assessments; 
• the interview with the person; 
• the opinions heard during the meeting of relatives, relatives by marriage, and friends.

The court may do so for the following six acts:

• Voting
  A person under tutorship retains their right to vote in provincial, municipal, and school board elections. However, this right could be taken away. In all circumstances, the represented person retains their right to vote in federal elections.
• Guardianship
  The court may determine that the person does not need a guardian and can therefore decide on their own where they want to live and with whom they choose to associate.
• The power to make purchases to meet their usual and customary needs
  The court could specify whether the represented person has or does not have the right to make purchases to meet their usual and customary needs, such as food, clothing, dental care, education and recreation.
• Signing a lease
  The person could be allowed to sign a lease on their own.
• Acts relating to the person’s work, art, or profession
  The court could specify whether the person can perform acts on their own that relate to their work, for example, signing an employment contract. This does not apply to managing their salary.
• Managing employment earnings
  The court could specify whether the represented person has the right to manage their own income or benefits. This could include, for example, Employment Insurance (EI) benefits.

This is called modulation of the tutorship.

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).

When instituting or reassessing a tutorship, the court could determine other modulations depending on the represented person’s situation.

Upon receipt of the judgment, the Curateur public enters certain information about the represented person and their tutor in its Public registry of representation measures, specifically in the Register of tutorships to the person of full age.

A person under tutorship remains a full-fledged citizen, generally with the same civil rights as any other adult. However, the exercise of some of their rights is entrusted to their tutor.

The represented person has certain specific rights:

• 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 live in the same economic conditions as prior to the institution of the tutorship and reflective of their financial situation;
• the right to a reassessment of their incapacity and need for representation, to ensure the tutorship is adapt to their situation or terminated when it is no longer justified;
• the right to have their tutor replaced, if the latter neglects their responsibilities.