Should you renew your protection mandate?

Your mandate of protection was signed several years ago, and you're wondering whether it's still valid. What's more, a new law has just come into force. Is it time to review your mandate?

It's important to know that, in general, a power of attorney is valid for an unlimited period of time, unless this was your wish at the time you signed the document and it was clearly stated in the document.

That's why it's a good idea to review your power of attorney every three to five years, to make sure it still reflects your wishes, your personal situation and assets, and those of your attorney.

Here are a few cases where it would be preferable to redo your mandate:

  • separation: the appointment of a spouse as mandatary does not automatically cease to apply because you are separated, so you must appoint another mandatary if you wish;
  • the appointed mandatary is not available: this may be the case of a child who is already caring for a spouse or an incapacitated child;
  • a dispute between the children: whether they are appointed to act together or not, this could make managing the mandate difficult;
  • a new spouse: even if you don't necessarily want to choose him or her as mandatary, you may have bought a property together. You'll need to plan how the mandatary will manage the co-ownership should you become incapacitated.

Obligation of the mandatary to carry out an inventory

Rest assured, the new law on the protection of persons losing their autonomy does not invalidate mandates already signed. However, it will oblige the mandatary to draw up an inventory of the assets to be administered within 60 days of homologation of the mandate, if this takes place after November1, 2022. This is an obligation, even if the mandate stipulated that there would be no inventory. Check with your notary to see what impact this change will have on your mandate.

New legislation

For the other changes introduced by the law, it is not mandatory to redo or modify your mandate, but you may be interested in incorporating one of the following elements. These changes can be summarized as follows:

  • The mandatary will have to report on his management at least every three years from the date of homologation. This change applies to all mandates signed after November1, 2022. If the mandate is silent about the rendering of accounts or the person to whom the mandatary will submit his or her report, the court will decide;
  • The Curateur public du Québec may be appointed as the person to whom the mandatary is accountable;
  • The mandate may stipulate that the mandatary must ensure that the state of health of the person of full age is periodically reassessed to ensure that his or her needs are adequately met and that his or her wishes are respected;
  • When a mandatary changes, for example following the death of the first mandatary appointed, a notice must be sent to the Curateur public with the new mandatary's contact information;
  • It will no longer be possible for two people to sign a joint mandate on the same document;
  • You can record your end-of-life wishes in a mandate. However, if they conflict with advance medical directives (AMDs), the latter will prevail.

Remember: a mandate is only valid once the incapacity has occurred and the court has ratified it. If it is ill-suited to the mandator's reality, or no longer represents his or her wishes, the judge cannot modify it. In this type of situation, he will have to set it aside and open a guardianship for the adult. You yourself will probably no longer be in a position to modify it at that point. So don't leave your mandate at the bottom of a drawer, and take the time to reread it to make sure it still represents your wishes.