The Quebec Public Curator updates its services
For the current Quebec Public Curator, Denis Marsolais, the new law is much more than just a necessary update to a legislation already in its thirties. It represents a paradigm shift. Thirty years ago, the protection of a person who was deemed to be “unfit” at that time was necessarily through the appointment of a guardian or curator to exercise all the rights of that individual in their stead.
“The new law instead puts the vulnerable person at the center of the protection process and aims in each case to allow them to exercise as many of their rights as possible for the longest possible time,” he explains.
This vision reflects an international trend. It is detailed in article 12 of the Convention on the Rights of Persons with Disabilities, adopted by the United Nations in December 2006. The article stipulates that people with disabilities have the right to own property, to have control over their finances and to take part in all decisions that affect them. Quebec and Canada support this vision, while noting that in some cases, the use of a disability protection mandate - in which an individual exercises rights on behalf of a vulnerable person - remains necessary.
“We wanted there to be other options than the institution of a guardianship or curatorship,” continues Marsolais. “Currently, it’s a bit of an all or nothing situation. However, we see cases where the scope of these mandates is exaggerated in relation to the real needs of the vulnerable persons.”
“The new law instead puts the vulnerable person at the center of the protection process and aims in each case to allow them to exercise as many of their rights as possible for the longest possible time.”
A new role: the assistant
The new law therefore proposes several innovations to achieve this objective. One of the most important is the introduction of an assistance measure. This measure already exists in other Canadian provinces like British Columbia, but it is mainly the model applied in Sweden that inspired Quebec legislators. “A vulnerable person will be able to officially designate an assistant to help them make decisions or manage their property, but without giving up any of their rights,” explains Marsolais.
Any adult with certain difficulties will be able to use this measure for their benefit. However, they must be able to demonstrate that they understand the scope and significance of this measure and that they are still able to express their wishes and preferences. The assistant must be of legal age and show a particular interest for the person who chooses them, which is the case, for example, of a close relative, a family member, or a close caregiver.
The Public Curator specifies that a professional financial advisor should not accept to become an assistant to his clients, except in cases where they are close to him or members of his family. “This creates the appearance of a conflict of interest, so it is better to keep the two separate,” he says. Those who wish to act as an assistant to a close friend or relative should hand over the management of that person’s finances to a third party.
“A vulnerable person will be able to formally designate an assistant to help him or her assist him/her in making decisions the management of its but without relinquishing any of his rights.”
Section 19 of the Chambre’s Code of Ethics already stipulates that the representative “may not enter into any transaction, agreement or agreement or contract with a client of whom he is the dative tutor, curator or advisor within the meaning of the Civil Code”.
However, Denis Marsolais adds that these professionals are still very well placed to talk to their clients when they begin to experience some difficulties.
A voluntary process
Unlike protective measures, the appointment of an assistant is not a judicial process and does not require any medical or psychosocial assessment. The vulnerable person can apply free of charge online or with a paper form directly to the Quebec Public Curator or by using the services of a lawyer or a notary (in the latter case, fees will be charged).
A list of five next of kin must accompany the application, signed by the assisted person as well as the assistant. The assistant must also guarantee that they are not in conflict of interest with the assisted person. Finally, the application must give an idea of the scale and size of the estate of the assisted person but does not require a complete financial statement.
In the end, it is the Quebec Public Curator who decides whether to accept the appointment of the assistant. He first performs background checks for any judicial antecedents of the potential assistant. He will contact also at least two people close to the assisted person to ask them if they have any have any major objections with the appointment. The process continues with two interviews. One of them is conducted only with the assisted person, particularly to ensure that their choice of assistant is voluntary, and they understand the significance of the appointment. The second interview includes the assistant and is designed to explain what the assistant can and cannot do.
In Quebec, 35,524 adults were covered by a protection mandate as of March 31, 2021 including 13,005 people under a public mandate, 9,410 under a private mandate, 11,398 under a certified mandate.
Source: Public Curator of Quebec, 2021.
The assistant’s role is well defined. The assistant can:
- Act as an intermediary.
- Advise the assisted person.
- Communicate with third parties to obtain, transmit or share information, or to inform them of the nature of the decisions made by the assisted person.
- Access to the personal information of the assisted person consent of the individual being assisted and if the information is relevant to help them.
However, the assistant cannot sign documents on behalf of the assisted person or make decisions for them. They cannot act in situations that place him in a conflict of interest or get paid for their help. It should be noted that the assistant may, if necessary, request information from other professionals whose relations with clients are covered by professional-client privilege. Lawyers and notaries, for example, will have to assume that the consent of the assisted person was given when the assistant communicates with them.
The same applies to financial advisors. However, all assistants will be listed on a public register. Advisors must therefore ensure that the Public Curator authorizes the person who speaks with them to act as an assistant for their client. This is especially important because the assisted person can dismiss the assistant at any time. In addition, once granted, assistance lasts for three years before it must be renewed. It will therefore be crucial to perform this verification every time.
The new curator
Given his recent appointment as president and CEO of the Société de l’assurance automobile of Quebec, Denis Marsolais stepped down from his functions as Quebec Public Curator on January 16, 2022. He has been replaced by Julie Baillargeon-Lavergne, who will act as as interim Public Curator. Until now, Ms. Baillargeon-Lavergne held the positions of secretary general and head of the of the Office of the Quebec Public Curator.
Mr. Denis Marsolais, the old Quebec Public Curator, and Ms. Julie Baillargeon-Lavergne, who succeeded him on January 16, 2022, on an interim basis. The photo has been retouched and the session took place while respecting the sanitary measures in place
A single protection mandate
The new law also introduces temporary representation. This allows a relative to perform a specific act on behalf of an incapacitated person, without having to resort to the opening of a tutorship. Marsolais gives the example of a person who is incapacitated and beneficiary of a deficit estate. A chosen person will be able to renounce the estate in the incapacitated person’s name. This is the only act that she will be allowed to perform on his behalf. “Today, it is necessary to open a protection mandate for that,” deplores Marsolais. “This will no longer be the case. Protection mandates should remain last resorts.”
The new law goes even further by simplifying the protection mandate. Previously, there were three, namely tutorship, curatorship and advisership to the person of legal age. Henceforth, only tutorship will remain, and its duties will be flexible. This will allow to better adapt to the needs of each person.
Thus, the court will now determine the degree of autonomy of the vulnerable person as well as the acts that they can perform alone, compared to those assumed by the guardian. The court also prescribes the time limits within which medical and psychosocial evaluations must be carried out. The guardian must consider the wishes and preferences of the incapacitated person and involve them as much as possible in the decisions made about them.
Another major change is that full administration has been removed from protection mandates. The legal representative will no longer be able, for example, to sell a building without authorization. This act will have to be provided for in a mandate or will have to be approved by the court.
The objective will always be to secure as many rights as possible to the assisted persons while ensuring their safety and protection.”
Protecting people and their freedom
The protection mandate has also been improved. In Quebec in 2020, 64% of Quebecers had prepared a protection mandate, as did 53% of people aged 55 to 64. Just over one-third of 35- to 54-year-olds and just over one in ten of those aged 18-34 had one. CSF members should not hesitate to recommend this tool to their clients, regardless of their age.
These mandates will now include two additional requirements, which are intended to improve the transparency of the management of the representative and to strengthen accountability. The mandatary will now be required to make an opening inventory of the incapacitated person as soon as they take office. The mandate must also provide for periodic rendering of accounts to a third party.
“This secures the management of the principal’s assets and prevents representatives from doing whatever they want without supervision,” adds Marsolais. “This is important because the Quebec Public Curator has no supervisory authority over mandates, unlike tutorship.”
The Public Curator shall also supervise the administration of the property of a minor by the parents or by a substitute guardian when the property is worth more than $40,000. This supervision shall be exercised over guardians of property (i.e., those who are not one of the parents or a person exercising parental authority), regardless of the value of the property.
“The objective will always be to secure as many rights as possible to the assisted persons, while ensuring their safety and protection,” summarizes Denis Marsolais.
The main causes of incapacity in people under a public protection mandate:
— 41% intellectual deficiencies
— 30 % mental health problems
— 21 % degenerative diseases
— 8 % head trauma and other.
Source: Public Curator of Quebec, 2021.