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Protection mandate

A protection mandate, formerly called a mandate in case of incapacity, lets you name in advance the person who would care for you and administer your property if you became incapable. Without one, a protective supervision regime opened by the court applies instead.

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Choosing who will act for you if you become incapable

A protection mandate, formerly called a mandate in case of incapacity, lets you name in advance the person who would care for you and administer your property if you became incapable. Without one, a protective supervision regime opened by the court applies instead.

This is the most widespread confusion of the three, and it is expensive because people discover it too late. The documents do not substitute for one another: each covers a different moment of your life, and none does the others' work.

A power of attorney works while you are capable. You hand someone the management of your affairs because you are travelling, because you will be in hospital for a few weeks, because it is simply more convenient. According to Éducaloi, it automatically ceases to have effect the day you are declared incapable, precisely the day you would need it most.

The protection mandate takes over at that point, but not on its own: it must first be homologated. A will, for its part, opens only on your death. A mandate says nothing about your estate, and a will gives no one any power while you are alive.

In short: the power of attorney covers ordinary life, the mandate covers incapacity, the will covers death. Most people need two of them, often all three.

Power of attorney: effective immediately, ends on incapacity or death. Protection mandate: no effect while you are capable, effective once homologated, ends on death. Will: no effect during your lifetime, effective on death only.

What you should know

  • Who it is for

    You want to choose for yourself who would represent you. You live alone, or your family is outside Québec. You want to spare your relatives lengthy court proceedings. You are preparing your will and want to complete your planning.

  • The notary’s role

    An explanation of how a protection mandate, a power of attorney and protective supervision differ. Choosing the mandatary and, where appropriate, a replacement. Drafting the powers granted, both for the person and for the property. Safekeeping of the original and entry in the register of mandates.

  • A mandate activated by homologation

    A protection mandate takes effect only after a medical assessment, a psychosocial assessment and homologation, which can be done before a notary rather than in court. While you remain capable, it changes nothing about your autonomy.

Useful questions

The answers that matter before you start

What exactly is homologation?

It is the procedure that makes the mandate usable. It requires a medical assessment, a psychosocial assessment, the filing of the application with the court together with search certificates from the registers, and an interview with you unless your condition prevents it. The court then declares the incapacity and homologates the mandate. Where the process is uncontested, a notary can carry it through from start to finish.

How long does homologation take?

Several months, according to the Gouvernement du Québec. The timeline depends on obtaining the two assessments and on the court’s availability. That is one reason a mandate is prepared well ahead of time: it cannot be done in a hurry.

What happens if I have no protection mandate?

Your relatives have to apply to the court to open a tutorship to a person of full age. Since 1 November 2022 curatorship has been abolished and tutorship is modulated to your actual abilities. The court appoints the tutor, a tutorship council oversees them, and the situation is normally reassessed every five years. If no one around you can take the role on, the Curateur public represents you.

Is a power of attorney enough if I become incapable?

No, and this is the most common misunderstanding. A power of attorney ceases to have effect once you are declared incapable. It does not take over: it stops. The two documents complement each other, they are not interchangeable.

Can I appoint two different people?

Yes. You can name a mandatary to the person, who looks after your care and living arrangements, and a mandatary to the property, who administers your patrimony. You can also name replacements, which is strongly advised: without one, if the named mandatary cannot take the role on, a tutorship may open despite your mandate.

Will my mandatary have to account for what they do?

Yes. Depending on the date of the mandate and of its homologation, they must draw up an inventory of your property within 60 days and render an account of their administration. You can state in the mandate who those accounts are to be rendered to.

Is this the same as advance medical directives?

No. Advance medical directives are a separate document, filed in the register kept by the Régie de l’assurance maladie du Québec, by which you accept or refuse specific care in specific clinical situations. The mandate appoints a person to decide; the directives decide by themselves, for that care. The two can coexist.

How will my relatives know I have a mandate?

If the mandate is notarial, its existence is entered in the Register of testamentary dispositions and mandates of the Chambre des notaires du Québec. A search of the Chambre’s and the Barreau’s registers will tell them a mandate exists and which notary keeps it. A mandate made before witnesses stays at your home: if it is not found, it will serve no purpose.

Can I change or cancel my mandate?

Yes, as long as you are capable. You may revoke it or sign a new one, which replaces the previous one. It is worth reviewing after a separation, a new relationship, a significant move, or if the named mandatary is no longer in a position to take the role on.

Am I too young for a protection mandate?

Incapacity is not reserved for old age: an accident or a stroke can happen at any time. Anyone of full age and capable can make a protection mandate, and it is often between 30 and 50 that its absence is felt most harshly, when there is a mortgage, young children and income to protect.

See all questions
A hand resting on an older person’s hand at a meeting table.

Homologation: how the mandate is activated, step by step

As long as you are capable, the mandate lies dormant. It only takes effect after homologation. Incapacity must first be established by two assessments: medical, by a physician, and psychosocial, by a social worker.

The mandatary then files the application with the mandate (original or authentic copy), both assessments and the search certificates from the registers of the Chambre des notaires and the Barreau; for a mandate made before witnesses, a sworn statement by one witness is also needed. You are met by the judge, the special clerk or the notary, unless your condition prevents it, then the mandate is homologated and the Public Curator enters the measure in the public register.

The process takes several months, at the expense of your patrimony. The notary can handle it from start to finish if it is not contested.

Before a notary or before witnesses: the difference shows at homologation

Both forms are valid; the difference shows on the day it has to be used. A notarial mandate is an authentic act: the original stays with the notary and its existence is entered in the register of the Chambre des notaires, which your family finds with a simple search.

A mandate made before witnesses stays at your home: if it is not found, it does not exist, and if it is, one of the witnesses must be traced to declare under oath that they attended the signing. The notary also checks your identity and that you understand what you sign, free of pressure.

Understanding more

The key aspects of your file

What happens if you have no protection mandate

Nothing happens automatically: neither your spouse nor your children inherit the right to decide for you. Frozen accounts, a house that cannot be sold, care decided by someone with no authority: your family has to go to court.

Since 1 November 2022, curatorship has been abolished and tutorship to a person of full age applies, tailored to your actual abilities. The court chooses the tutor, a tutorship council oversees them and the situation is normally reviewed every five years; if no one can take it on, the Public Curator acts. With a mandate, you chose in advance.

  • Tutorship to a person of full age: a representation measure opened by the court, modulated to your actual abilities and reassessed periodically.
  • Temporary representation: a one-off appointment for a single specific act (selling a property, signing a lease, cashing a sum) without opening a tutorship.
  • Assistance measure: official recognition by the Curateur public of one or two assistants; they help you with your dealings, but they do not decide for you and do not sign on your behalf.

What you can actually write into your mandate

You can name a mandatary for the person (well-being, care, living environment) and a mandatary for property, the same person or two different ones, and appoint replacements: without a replacement, the mandate may not be able to be homologated.

Above all, you can write instructions: where to live, which care to accept or refuse, how your money is to be managed, what requires authorisation, and to whom accounts must be rendered. Depending on the dates of the mandate and of homologation, the mandatary must draw up an inventory of your property within 60 days and account for their management.

Choosing your mandatary: the decision that matters most

The mandatary must be of full age and capable; beyond that, the choice is entirely yours. Talk to them first: the role is real (caregivers, accounts, inventory) and can last for years.

Choose someone who can decide under pressure, keep files in order and respect what you wrote. A mandatary for property can be a trust company; a mandatary for the person, never.

What a protection mandate is not

It does not replace advance medical directives, a separate document filed in the register of the Régie de l’assurance maladie du Québec to accept or refuse specific care in advance.

It takes nothing away from you while you are capable: you can revoke or redo it at any time. It is not only for older people, since incapacity can strike at 30, and it should be updated after a separation, a new relationship or a change in circumstances.

General process

  1. Meeting

    We discuss your wishes and the people you trust.

  2. Draft

    The draft mandate is presented and explained.

  3. Signing

    The mandate is signed before the notary and entered in the register.

  4. Later

    In the event of incapacity, the mandate must be homologated, by the court or before a notary, after a medical and a psychosocial assessment.

Before the meeting

Documents to prepare

Depending on your situation, other elements may be useful. This list is indicative.

What to bring to a first meeting
  1. Valid identification.
  2. Contact details for the person or people you wish to appoint.
  3. A summary list of your property.
  4. Your wishes regarding care and living arrangements, if you have any.

Official sources

This page provides general information and does not constitute legal advice. Each situation must be assessed individually.

Next step

A question about your file?

Write to us or call the office. We will tell you which steps to follow and which documents to prepare.

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