Did you know that if you haven't drawn up a mandate of protection, your wishes may not be respected if you become incapacitated? Here are some tips on how to prepare your own and why you should opt for a notarial mandate.
A mandate of protection allows you to name the person or persons who will make decisions on your behalf should you become incapacitated. This essential legal document ensures the proper administration of your property and your protection in the event of incapacity.
There are two ways of drawing up a mandate of protection: witnessed or notarized. Although perfectly legal, a mandate signed in the presence of witnesses involves more risks than a notarized mandate.
If your mandate is not notarized, it may not be valid because it does not meet certain conditions imposed by law, or it may contain provisions that are illegible, incomprehensible or incompatible with the law, or it may be incomplete. It may also be lost, altered or destroyed.
What's more, if you become incapacitated, you'll have to prove the validity of a non-notarized mandate before a court will agree to homologate it. You'll need to find the original version of the mandate and summon a witness who was present when it was signed.
However, a number of difficulties can arise. For example, if you signed your mandate in the presence of two neighbors, but in the meantime you or your neighbours have moved several times, will it be possible to trace them when the time comes?
What's more, in many cases, only the witnesses' signatures appear on the non-notarized mandate, and they are not identified. How can you be sure who they are? It may therefore be difficult, if not impossible, to prove the validity of the mandate and have it probated.
Please note that the probate procedure also applies to notarized mandates, but in this case the validity of the mandate does not need to be verified, so the process is often less lengthy and complex.
Remember that a notarized mandate is a totally reliable and secure legal document, for several reasons. Firstly, it is more difficult to contest than a non-notarized mandate, because the notary must ensure its authenticity. The notary will verify your identity and prepare a mandate that complies with the law and your wishes. The notary must also explain the contents of the mandate and certify that you have understood and signed it freely.
Another important point is that your notarized mandate will always be protected since the notary must keep the original in a safe place, as required by law. You can be sure that this document will not be lost, altered or destroyed. The notary will also provide you with a copy of the original.
Finally, the existence of your mandate is recorded in the Register of Mandates of the Chambre des notaires. In the event of your incapacity, it will be possible for any person with an interest in protecting you to verify whether you have made a notarial mandate, by submitting a search request to the Chambre des notaires. Please note that this register only lists the existence of notarial mandates in Quebec, and does not contain copies of mandates.
Finally, the notary also has a duty to advise, and will make recommendations that take into account your personal situation. For example, if you live in a common-law relationship with your spouse, he or she may suggest that you add special clauses to your mandate to protect your partner, since the law does not recognize any obligation of support between you.
A notary will not only inform you about the various elements to be included in your mandate, but will also answer your questions, explain the consequences of your choices and clearly express your wishes in writing.
Here are a few things to think about before the meeting:
Consult a notary (Find a notary in Quebec | Chambre des notaires du Québec (cnq.org)or use the free or low-cost legal resources available in Quebec (Legal resources | Chambre des notaires du Québec (cnq.org).
