Tax & Estate planning

Legislative changes coming to Quebec regarding protection measures

Legislative changes coming to Quebec regarding protection measures

There are upcoming changes to the legislative provisions related to the protective supervision of incapable persons in the province of Quebec. Bill 18, also known as an Act to amend the Civil Code, the Code of Civil Procedure, the Public Curator Act and various provisions as regards the protection of persons will come into force on November 1, 2022. The aim of the new law is to better protect vulnerable persons. The changes will result in a major reform of the current protection measures available in Quebec as well as impacting the lives of thousands of vulnerable people and those that support them.

In Quebec, if you are ill or experience a condition that renders you incapable of caring for yourself or managing your property and you have not made a protection mandate,1 you will need to have someone appointed to legally act on your behalf to deal with third parties. The form of protective supervision depends on both the degree of the person’s incapacity to care for themselves or administer their property and whether the incapacity is permanent or temporary. 

According to the Curateur public website2, the law will “be adaptable to each situation and will safeguard the autonomy of these individuals (while taking into account their wishes and preferences), and will preserve individuals’ ability to exercise their civil rights insofar as possible.” 

There are currently approximately 36,0003 Quebec adults represented by a third party as part of a private or public protection measure and homologated protection mandate. Approximately 20% of Quebecers were 65 or over in 2021,4 and this percentage is expected to grow due to increased life expectancies. The changes to the law demonstrate the importance of maintaining the autonomy of incapable persons for as long as possible and provides protection measures that will be adaptable to the situation of the incapable person that may have become more vulnerable due to age, illness or temporary disability, while respecting their wishes and preferences. 

Current forms of protective supervision for adults

There are currently three forms of protective supervision for adults who have become vulnerable because of their incapacity in Quebec: adviser, tutorship, and curatorship. An adviser to an adult provides the adult with the most independence and decision-making while a curatorship offers the least.

An adult who is generally capable of caring for themselves and of administering their property but needs to be assisted for certain acts or for a certain time may have an adviser appointed. The role of the adviser for an adult is not to represent the adult but rather to advise and help the adult manage their property. For example, an adult with a slight intellectual disability who is otherwise independent and able to care for themselves but may have a difficult time managing their money. 

Where an adult suffers from a temporary or partial incapacity, a tutorship for an adult can be put into place. For example, this situation may arise where an adult requires a lengthy hospitalization following a serious skiing accident. The person under tutorship may still perform certain acts alone but others may require the tutor to represent them.

Lastly, a curatorship is the form of protective supervision involving a person suffering from a total incapacity from a degenerative disease like Alzheimer’s. The curator represents the incapable person in many aspects for the incapable person’s life so this form of protective supervision is the most restrictive as the acts that the incapacitated person may perform are very limited.

Where both tutorship and curatorship are concerned either one or two individuals may be involved: one looks after the protected person’s physical and mental well-being and the other manages the person’s property. It is possible for one person to do both roles.

The opening of protective supervision involves a compulsory court process with formalities which include the requirement to obtain both a medical and a psychosocial assessment. Depending on the form of protective supervision as well as the varying degrees of incapacity, a person may only be allowed to perform various judicial acts while others may require authorization. The form of protective supervision will impact the protected person’s civil rights such as the right to vote or sign a lease. 

New regime

The new law will replace all existing forms of protective supervision with one regime: modulated tutorship. Adviser and curatorship will be eliminated. The modulation of tutorship means that the court will determine and specify in its judgement which decisions or acts can be performed by the incapable person on their own, and those that require the assistance from their tutor. As such, the tutorship will be tailored to the realities of the person and their abilities and more respectful of their autonomy. 

New protection measures: Temporary representation and assistance measure

Under the new law, there will be two new protection measures: temporary representation and the assistance measure.

The temporary representation measure will allow an individual to fulfil a specific act on behalf of a person that is unable to deal with a specific situation. For example, a temporary representative may be designated to assist with the sale of a house where the seller is currently in no state to deal with the sale. Although this measure involves a court process, the measure is put in place without having to institute a tutorship nor by limiting the rights of the represented person. The temporary representation ceases upon the completion of the specified act.

As for the assistance measure, it will enable a person to name one or two assistants to help the person with their personal care, administration of their assets, or making and communicating certain decisions to third parties. It is available to a person who may be living with a difficulty, for example, an adult experiencing vision or hearing impairment.

The assistance measure does not authorize the assistant to sign on behalf of the assisted person and is limited to a period of three years after which it is revaluated. The recognition of an assistant involves the person seeking assistance to submit an application to the Curateur public or initiating the process through a notary or lawyer.

The Curateur public will keep a register of all assistants so that third parties can check the register in real time. The register is updated daily, so it will be prudent for third parties approached by an assistant to consult the register at each interaction since the measure may be withdrawn by the assisted person at any time prior to the three-year period. The Curateur public will attempt to protect the individual who wants assistance by implementing various measures, including conducting criminal background checks on prospective assistants before approving the appointment, and retaining investigative and termination power while overseeing the assistants’ actions. 

Consider this example:

Your Mom wants to get options on some cell phone packages offered by her internet service provider to select the one that is suitable for her. She is overwhelmed by the various options available and simply needs someone to assist her. With an assistant in place, the assistant can call the internet service provider and relay the information to your Mom in plain language so she can make an informed decision.  

Protection mandate

While the above measures pertain to situations where either a power of attorney (mandate) or a protection mandate is not in place, it is noteworthy to mention that Quebec is also making updates to the protection mandate. The updated provisions aim to enhance protection of incapacitated persons and their property against abuse by providing transparency of the administration carried out by the mandatary.

For example, the mandatary will be obligated to conduct an inventory within 60 days of homologation and submit it to a designated recipient named in the protection mandate. Also, the mandate must prepare an accounting of their administration (the frequency of reporting is not to exceed three years) to the designated recipient.