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Mandate in case of incapacity


Estate law, Notarial services

A reader from Laval has asked us if there is a way that he can name a person to take care of his affairs in case he loses his autonomy.

The Role and the Responsibility of the Mandatary

In fact, our laws indicate that any person may sign a mandate in case of incapacity, which designates the person that they chose to take care of their affairs at the time that they may become incapable.

This mandate will detail the tasks and the obligations that the mandatary (the person designated in the mandate) has to respect during his administration.

The mandate in case of incapacity can be made either by a notarial deed or in the presence of two witnesses.

The mandate will be applicable and in force when the mandator (the person who has given the mandate) is recognized incapable by his medical doctor and social worker.

The mandatary will have to request to the courts the homologation of the mandate in case of incapacity in order to begin his administration.

The mandate is valid until:

the death of the mandator or the mandatary; or
the revocation by the mandator; or
the renunciation by the mandatary, ;
in the case of mismanagement or misuse; or
the institution of protective supervision for either the mandator or the mandatary.

It is important to speak to a professional when preparing a mandate in case of incapacity in order to understand the scope and the legal implication of such a document.

Gianina Fuschini, Attorney-at-Law
Alepin Gauthier avocats inc.

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