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Protection mandate

What is a protection mandate?

February 20, 2023

That’s a good question, isn’t it? Most of us have heard of it before, but what do we know about it?

In this article:

What is a protection mandate?

A protection mandate is a written document that recognizes the right of persons of sound mind (i.e., with full cognitive function and therefore capable of making decisions for themselves) to designate, in advance, who will take care of them and manage their property if they become incapable. The designated person is referred to as the “mandatary”. A protection mandate is written as a preventive measure while you are still mentally healthy.

How do you plan for a protection mandate?

It is important to know that a protection mandate is valid only during your lifetime. It should not be confused with a will, which will apply only after your death. Nor should a protection mandate be confused with a power of attorney, which lets you choose a person to act on your behalf and assist you in administering your property. A power of attorney is valid only while you are capable. Once you become incapable, the protection mandate prevails.

Choosing a mandatary is an important decision because this person will act on your behalf in all circumstances. Therefore, choose a person whom you can trust. Once the incapacity has been declared, the mandatary will be responsible for decisions about your health and the care required, as well as your accommodation and the administration of your property. Choose carefully. This person should be someone who knows you well and who will respect your wishes.

How is the capacity assessment conducted?

Persons become incapable when they can no longer make informed decisions, take care of themselves or manage their assets. This inability to look after themselves or their property can result from an accident, illness or ageing. It can be partial (affecting only certain aspects of your life) or total; it can be temporary (your condition can improve or you can recover) or permanent.

Since it can be difficult to determine if a person is incapable, capacity should be assessed by professionals. This assessment is necessary to put a protection regime in place or to homologate a protection mandate. The capacity assessment has two components: medical and psychosocial. Following the consultation, the professionals interviewed must complete an assessment form that indicates whether the person is incapable, the degree of the incapacity (partial or total) and the duration of the incapacity (permanent or temporary).

How do you draw up a protection mandate?

There are two ways to draw up a protection mandate: before two witnesses or before a notary. However, since this mandate is a legal document that deprives persons of their rights, it must be validated by a court in order to come into force in both cases.

The protection mandate before two witnesses (also called a mandate as a private writing) is the one that you draw up yourself. It can also be drawn up by another person of your choice or by a lawyer. There will be a charge for this service.

However, drawing up this mandate before a notary allows you to benefit from his or her advice. Notaries help you to formulate your wishes based on your needs and family situation. They will enter the document in the Register of Testamentary Dispositions and Register of Protection Mandates at the Chambre des notaires du Québec (which will facilitate traceability), retain the original and provide you with a copy. However, there is a charge for these services.

Where do you get a protection mandate?

Good news! Matcha Insurance will be soon be offering 3-in-1 Life Insurance, a product that allows you to obtain your life insurance, will and protection mandate at the same place. Feel free to contact one of our advisors for more information.


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