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A Paradigm Shift in the Protection and Representation of Persons in Vulnerable Situations

On November 1, 2022, the Act to amend the Civil Code, the Code of Civil Procedure, the Public Curator Act and various provisions as regards the protection of persons, Bill 18, SQ 2020, c 11, entered into force. The Quebec legislature and the Public Curator have hailed the Act as a much needed “paradigm shift” in the protection and representation of vulnerable persons.

The main features of the Act, which was adopted in June 2020, are well known: in addition to important procedural changes relating to the implementation of regimes of protective supervision, which are of concern primary to legal practitioners, the public should be cognizant of critical developments in the representation of minors and incapable adults.

By way of example, two of the regimes of protective supervision previously available in Quebec, that is, curatorships and advisors, have been eliminated. Tutorships is now the only protective regime available, albeit with certain adjustments intended to favour the preferences and needs of each individual. The Act has also created a new system of temporary representation for persons requiring assistance in the performance of particular acts, and has redesigned certain responsibilities of mandataries acting pursuant to homologated protection mandates.

If an individual is presently acting as a tutor, a curator, a mandatary or an advisor to a person with functional or cognitive limitations, or if guidance is being sought regarding a situation involving a vulnerable person, the following key aspects of the Act should be noted.

The Reform of Tutorships for Minors

Tutorships of persons under the age of eighteen entail a strict legal framework which parents are expected to follow, regardless of whether they are married or unmarried, or form part of a nuclear or blended family.

Under the Act, the control mechanisms in place with respect to the administration of a minor’s patrimony now apply only in cases where the minor has assets in excess of $40,000. The legislature increased the threshold, which was previously set at $25,000, in order to reflect indexation. Consequently, a minor’s tutor will only be required to seek the advice of the tutorship council and/or the authorization of the Court when dealing with property under their administration worth more than $40,000.

Moreover, any person (or succession) required to remit property worth more than $40,000 to a minor must now submit a declaration to the Public Curator to this effect, at least fifteen days prior to the remittance of the property. In the case of a tutor to a minor who is called to inherit from a succession, he or she can no longer act as liquidator of the succession unless the testator’s will has expressly permitted this. For those practising in estate planning, this aspect of the Act could have an impact on advising clients.

The Reform of Tutorships for Adults

As previously noted, the legislature has decided to prioritize one single regime of protective supervision for adults with cognitive or functional limitations, namely, the tutorship. However, tutorships created under the Act must necessarily be “modulated” in order to adapt to the particular preferences and needs of each individual requiring representation.

For example, if a person’s incapacity is temporary in nature, and prevents him or her only from performing a specific act during the anticipated period of incapacity, then the Court will now be expected to favour alternative protective measures that are proportional to the person’s circumstances. In such a situation, rather than opening a tutorship for the person, the Court will be inclined to order a less drastic and short-term means of protection, such as a temporary assistance.

Indeed, doctors and social workers have already been provided with new guidelines to change the way that they assess vulnerable persons, to ensure that protective measures properly reflect their needs. The Act will also allow the Courts to intervene to modify judicial measures or order reassessments in view of guaranteeing that changes in a person’s functional or cognitive limitations result in the attenuation or escalation of measures that were previously in place.

Another key feature of the Act, particularly in the wake of the well-known Quebec documentaries “Autistic, soon to be of age” and “Autistic, now of age”, is the possibility for both parents to now act jointly in the administration of their child’s well-being and care, regardless of his or her age. Now, parents, even if they are divorced, will have the possibility of acting together in the representation of their child’s person and can easily delegate powers to one another in the event of an emergency or an inability of one of them to act.

An additional change brought by the Act, which will have important consequences for persons currently acting as curators of incapable persons, is that, as of today, curatorships will automatically transform into tutorships. This transformation entails a loss of powers of full administration over the property of the incapable person, which will be now restricted to powers of simple administration.

In practice, this means that any loan, mortgage, alienation of property (such as the sale of an immovable) or other property transaction requiring in the administration of an incapable adult’s patrimony will now require the creation and authorization of the tutorship council, and, for transactions implicating assets worth over $40,000, the authorization of the Court. A tutor who formerly occupied the office of curator will also now no longer be empowered to act alone in deciding the investment policy applicable to the incapable adult’s assets.

If an individual was, until now, acting as a curator for an incapable adult, or served as a member of a tutorship council created for a curatorship, it is important to consult a legal advisor to determine the implications of the Act on any investments or forthcoming transactions relating to the incapable adult’s patrimony. It may also be appropriate, as contemplated by the legislature, to return to Court in order to apply for a modulated tutorship under the new legislation, so that the scope of the legal representative’s administrative powers is appropriate under the current circumstances.

Finally, it should be noted that the legislative provisions applicable to tutorships of minors who are called to inherit from successions, and the appointment of liquidators to represent said successions, also apply to incapable adults who were previously under curatorship. As such, this change should also be accounted for in a person’s estate planning if she or he intends to bequeath assets to an adult under curatorship.

The Creation of a “Temporary Assistance” Regime for Adults

As previously noted, the Act has eliminated the possibility of appointing “advisors” to assist adults in decision making regarding the administration of their property. This measure has now been replaced with a regime of “temporary assistance”, whereby adults with certain cognitive or functional limitations may appoint one or two third parties, such as legal professionals or trusted relatives, to assist them in taking care of themselves, in administering their property and, in general, in exercising their civil rights.

Such “assistants” are to be selected by the vulnerable person him or herself, and for their role to have any legal force or effect, the Public Curator must authorize and recognize their appointment. Once the assisted adult has obtained the approval of the Public Curator, the name(s) of his or her assistant(s) will be recorded in a public register, so that third parties can ensure that they are dealing with the appropriate intermediary.

Temporary assistants will be the privileged intermediaries between vulnerable adults and third parties, such that they will be able to give and receive information on behalf of the persons they represent, especially when dealing with professionals, and will even be able to communicate with third parties regarding decisions that vulnerable adults made prior to their appointment.

The procedure for appointing temporary assistants may be done privately or with the assistance of a notary or a lawyer. At least two persons who are close to the vulnerable adult must be implicated in the process, but the decision as to the suitability of the appointment will ultimately be left to the discretion of the Public Curator.

An assistant’s appointment and powers will automatically terminate in the event that a Court decides that a regime of protective supervision should be opened for the benefit of the vulnerable adult or that a protection mandate previously executed by the vulnerable adult should be homologated.

The Redesign of Protection Mandates

The most notable change in the Act’s redesign of protection mandates is that a mandatary acting pursuant to a homologated protection mandate will now be obligated to render an account of his or her administration to a third party over the course of their administration. This will be the case regardless of whether the duty was expressly stipulated in the protection mandate. In the event that a protection mandate is silent with respect to this obligation, the Court will order the parameters of the mandatary’s rendering of account in the judgment homologating the protection mandate.

Going forward, in the context of incapacity planning, a mandator should identify, in his or her protection mandate, the individual who he or she would like to verify the accounts rendered by a mandatary over the course of their administration. If this person is not identified in a protection mandate, then the Court will be tasked with his or her appointment. The Public Curator could also be designated, by default, as the entity responsible for verifying the mandatary’s accounts.

If a person’s incapacity planning has been completed prior to the coming into force of the amendments, and has not identified the person to be responsible for reviewing the mandatary’s accounting over the course of her or his administration, the terms of the protection mandate should be revised to include the designation of the recipient of the accounting.

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