Instituting protective supervision
Instituting protective supervision is a legal mechanism that protects the interest of a person who has become vulnerable due to his or her mental or physical state. Cases of decreasing autonomy or protective supervision concerning a loved one are often difficult situations that cause stress and tension for a family, especially when the situation is urgent or when no protection mandate was ever signed. Your notary will not only be able to offer you legal counsel but can also help you with the steps required for instituting protective supervision to look after your loved one.
The classic cases requiring the institution of protective supervision are as follows: when a mentally disabled minor reaches adulthood or when the mental faculties of a person of full age are decreasing and no protection mandate (protection mandate section) was ever executed.
There exist three forms of protective supervision. The appropriate form will be instituted according to the degree of the person’s incapacity:
- Curatorship
- Tutorship
- Adviser to a person of full age
Curatorship
This form of supervision applies to adults who are incapable of caring for themselves or administering their property. Due to the significant decrease in autonomy, the incapacity shall have to be total and permanent to the extent that no improvement is foreseeable. The curator is charged with full administration and appointed according the recommendation made following a meeting of relatives, persons connected by marriage or a civil union, or friends.
Tutorship
Tutorship is established when the person’s incapacity is partial or temporary. This form of supervision implies a greater degree of autonomy compared to curatorship because the person is able to accomplish certain acts alone or with assistance (example: pay public utility bills or small expenses for personal needs). Tutorship can be applicable to the person (incapable of caring for themselves) or to property (incapable of managing their property) or to both aspects. The court shall determine the extent of the protection instituted according to the degree of the person’s incapacity.
Adviser to a person of full age
This form of supervision is established when a person is slightly incapable of administering his or her property, for example in cases of a mild mental disability or a temporary incapacity caused by an illness or accident. The person’s degree of autonomy is higher than that in other forms of protective supervision and an adviser will therefore be appointed to assist the person in managing his or her patrimony. This form of supervision only applies to the administration of the person’s property and such person remains in full control of his or her civil rights.
WHO MAY APPLY FOR THE INSTITUTION OF PROTECTIVE SUPERVISION?
Any person showing a special interest in the person may apply for the institution of protective supervision. This includes the Public Curator. Persons of full age may apply for the institution of protective supervision for their own benefit when they realize that they require a certain level of protection.
The application for the institution of protective supervision is presented at any time before a Quebec court with the jurisdiction to grant such a request and before a notary in cases where the institution of the supervision is not contested. In fact, the person of full age who is the subject of the application always has the right to express his or her disagreement before the court, with or without the assistance of a lawyer.
It is imperative that the person be accompanied by a legal adviser in order to comply with Quebec laws in such matters and to avoid lengthy delays. Please contact us for additional details.