Better support for a loved one: discover the assistance measure

The protection mechanisms

Power of attorney, protection mandate, assistance measure... are they all the same?

Several protection mechanisms exist. Each one requires a different level of autonomy for the person who needs it.

Let's take a quick look at these mechanisms before going any further.

The power of attorney

• When a person is under 18 years of age, their parents represent them and are responsible for them. Once a person reaches the age of majority, they can act on their own behalf and exercise their rights, but they can also delegate certain tasks to another person. This is called a power of attorney. A fairly common type of power of attorney is a banking power of attorney. It allows you to carry out transactions on behalf of a loved one who has difficulty getting around, for example.
• The power of attorney does not cause the person to lose their rights, so they can continue to carry out their banking transactions themselves.
   

The protection mandate

• Formerly known as a mandate in case of incapacity, a mandate for protection is drawn up in adulthood in anticipation of mental incapacity (e.g., Alzheimer's disease, coma).
• When it is in effect, the person concerned can no longer exercise their rights or make decisions for themselves. It is therefore the representative who makes decisions for them concerning their person or property.

To learn more about the types of powers of attorney and the protection mandate, contact our notary.
 

What about the assistance measure?

This measure has been in effect since November 2022 and aims to:

• Preserving a person's independence and ability to make their own decisions, even if they may encounter certain difficulties.
• Breaking down barriers to access information that the person receiving assistance asks their assistant to collect or transmit on their behalf. This means that the assistant, i.e., the person providing assistance (e.g., family caregiver, friend), is now legally recognized and cannot be denied access to certain places, appointments, or information.

The person receiving assistance retains all of their rights.

Who is this measure intended for?

A person may request assistance regardless of their difficulty, age, or health condition. 

Two concrete examples:

• Julie wants to contact her mother Ginette's phone company to discuss different cell phone plans so that Ginette can make an informed decision, or to discuss a billing error. The company refuses to give Julie the information. Employees insist on dealing only with Ginette for reasons of confidentiality. Julie is also unable to communicate Ginette's decision to change plans to her service provider. With the assistance measure, Julie will be able to make requests for information and communicate her mother's decision. However, the service provider may still ask to speak to Ginette to ask her if they can communicate with Julie. Ginette will still be required to sign the contracts.
• Julie cannot accompany her mother to her appointments with her financial advisor and doctor, as these professionals want the meetings to remain confidential. With the assistance measure, Julie will not be denied access to these meetings and will therefore be able to support her mother.

Although these two examples reflect situations experienced by a daughter and her mother, it is important to remember that assistance measures can be useful in a variety of circumstances, regardless of age, health status, or the type of difficulty encountered.

• I feel anxious in certain situations and would like to have support when one of these situations arises.
• I live with a minor intellectual disability or autism spectrum disorder.
• I have difficulty reading and writing.
• I live with an addiction.
• I live with hearing, visual, or motor impairments.
• I am a newly arrived immigrant who would like support during my transition period.

Of course, both parties must still meet certain criteria for the assistance measure to be recognized and used. 

Criteria and requirements

• The person receiving assistance must be able to understand what their assistant can do for them and be able to express what they want.
• The assistant, i.e., the person providing assistance, must be a physical person. In addition, the assistant must be of legal age and must be capable of making their own decisions. For example, their protection mandate must not have come into effect. 

The assistant must also comply with the following obligations:

• Respect the privacy of the person being helped;
• Respect the limits of their role. The wishes and preferences of the person being helped must remain their primary concern;
• Act free of charge;
• Avoid placing themselves in a conflict of interest, i.e., a situation where they might be inclined to favor their personal preferences or those of their loved ones.

The overall process

The process for obtaining assistance is supervised by the Curateur public. The person requesting assistance can complete the process alone (at no cost) or request the assistance of a notary or lawyer who offers this service. Although there are costs involved in hiring an expert, this option has the advantage of providing guidance throughout the process. The expert will take the time to get to know you and understand your situation. Keep in mind that hiring a notary or lawyer will not speed up the process.

Good to know: The Curateur public is the provincial government agency responsible for protecting vulnerable persons. You can contact this agency if you are concerned about the physical, psychological, or financial safety of a vulnerable person. 

The steps in the process

1. The person receiving assistance chooses one or two people they trust to help them when they encounter difficulties. They submit the request themselves to the Curateur public OR they hire a lawyer or notary to help them complete the process.
2. The Curateur public checks the criminal record of the proposed assistant. The process with the Sûreté du Québec takes approximately 30 days. There are no fees involved. The costs of this check are borne by the Curateur public.
3. The loved ones of the person receiving assistance will be notified of the process that is underway. They have 30 days to object to the procedure or share their comments.
4. The Curateur public's employee or chosen professional (notary or lawyer) will hold two meetings:
   1. A meeting with the person receiving assistance, alone, or with another person who is not the assistant.
   2. A meeting with the person receiving assistance and the assistant.
   3. The purpose of these meetings is to confirm that both parties understand the process, including the obligations and role of the assistant.
5. The Curateur public's employee or selected professional will record their observations and recommendations and forward them to the Curateur public. The Curateur public will make the decision on whether or not to recognize the assistant.
6. The assistant is entered in the Public register of assistants. The assistant receives a letter by mail containing a general code for the assistance measure. In order to accompany the person receiving assistance, the assistant must first request a security code from the Curateur public online. This code is valid for 72 hours. The assistant therefore has two codes: one code for the measure in general and one code for the specific action requested. The purpose of this double validation is to ensure the security and confidentiality of the person being assisted at the precise moment when assistance is requested.

The process duration

The total duration of the recognition process is 3 to 6 months, and must be repeated every 3 years. The process in place for recognizing an assistant and the fact that the assistance measure has an end date ensures that the person receiving assistance is not vulnerable, that they are not subjected to abuse or pressure from their assistant, and that the assistance measure is still the appropriate mechanism for them.

To learn more about the assistance measure, contact us!