When power of attorney is not enough

Question: In your Gazette column of March 13, you state that the PA is no longer valid in Quebec. Several years ago, I obtained the PA for my aging mother, thinking that this was sufficient to allow me to manage her affairs when she became unable to do so herself. Can you explain when and why the PA became invalid? Also, how do I obtain a Mandate in case of Incapacity and who can provide it? Who can activate it and how?

A. Dear A, Thank you for this follow-up question regarding Powers of Attorney and the Mandate in case of Incapacity in Quebec. Your question allows me to expand on this very important development in how custodial care arrangements are now documented and executed in Quebec.

Unlike the common law instrument called the Enduring Power of Attorney used in other Canadian provinces, a Quebec notarized power of attorney is not intended to be used as a custodial care instrument and is only valid as long as the granter is mentally competent. The Quebec Civil Code allows individuals to grant a PA to take care of financial affairs while out of the country for example, or to delegate the running of a business to a family member or a professional for a specified time. Prepared by a lawyer, notary or specific financial institution, a well-executed PA will limit delegated powers to those decisions and tasks that serve the interests of the granter, and the granter may withdraw the PA at any time.

The correct Quebec document to be used to name one’s financial representative in anticipation of not being able to act for oneself is therefore the Mandate in case of Incapacity. Also serving as a “living will,” the mandate allows you to name your personal health representative who may or may not be the same person as your financial representative. Before any mandate is activated by the named representatives, it must be vetted or “homologated” in court in order to verify that the mandator is indeed legally incapable as demonstrated by an independent medical report and psycho-social assessment.

You can prepare a mandate at home with a template from the Quebec Curator’s website curateur.gouv.qc.ca outlining the typical duties of each representative (or mandatory) as well as provision for requiring an annual accounting of the mandator’s affairs to a family council. This mandate will be enforceable as long as the signature is witnessed by two disinterested parties. In my experience however, it is preferable to have your mandate drawn up by a notary at the same time as your will so that there is consistency between the instructions in both documents and both are registered with the Chambre des Notaires for easy retrieval in case of need.

There are some practical issues in working with the mandate, such as the length of time it takes to get a mandate homologated (up to six months) which can hamper critical financial decisions such as the sale of a property to finance long term care. The overriding principle for any mandatory in avoiding a possible conflict of interest is to ensure one is acting in the best interests of the vulnerable person and to document any and all financial steps taken on their behalf. Email your questions to shanab@ yourfinancialcounsellor.ca or by mail to “Let’s Talk Money,” The Gazette, Business Section, 1010 Ste. Catherine St. W., Suite 200, Montreal, H3B 5L1. Brenda Shanahan offers private financial counselling at yourfinancialcounsellor.ca or by appointment at the Sedona Counselling Centre of Montreal at 514-4872828.