Homologation of a Mandate Given in Anticipation of Incapacity.
When the person having given a mandate in anticipation of his incapacity (the “mandator’) becomes incapacitated, the performance of the mandate is subordinate to the homologation of the mandate by the Court, at the request of the mandatary (the person to whom the mandate was given) designated in the mandate.
The homologation is obtained by way of a fairly simple procedure: the mandatary presents to the Court, to a Judge or to the Clerk of the Superior Court a written application requesting the homologation of the mandate. Such application must be served upon all interested parties, particularly upon the mandator, at least 10 days prior to its presentation. The Court, the Judge or the Clerk ensures that the application has been served upon all interested parties. The application is heard by a Judge or the Clerk sitting in his office. However, if the application is contested, it will be heard by the Court sitting in a courtroom.
The application must be supported by evidence that the mandatory has become incapable to take care of his person or look after his assets. Such evidence is generally constituted by the opinion of a physician on the mental or physical condition of the mandator.
An application for homologation can also be presented to a notary. The notary must notify all interested parties in writing, particularly the mandator, and provide them with a copy of the application and all information relevant to the object and the causes of the application. The application must be accompanied by a notice clearly stating the time and place at which the notarial operations are to begin as well as the object of the application and the nature of the rights of the interested persons, including their right to present observations or make any representations they see fit or to oppose the application. The evidence of the incapacity is made in the same manner as if the application was presented to a Judge or the Clerk, or, as the case may be, to the Court sitting in a courtroom.
If the application is contested, the notary must relinquish the matter and inform the interested persons. He draws up the minutes of his operations and transfers the matter to the competent Court.
The mandate ceases to have effect when the Court ascertains that the mandator has again become capable; the mandator may then revoke his mandate if he considers appropriate to do so. If the director general of the health and services establishment providing care or services to the mandator ascertains that the mandator has again become capable, he shall attest to such capacity in a report filed in the office of the Court. Such report includes the medical and psychosocial assessment. The Clerk notifies the mandatary, the mandator and all other interested parties that such a report has been filed. If no objection is made within 30 days, the Court is presumed to have found that the mandator has again become capable. The Clerk must then, without delay, transmit a notice of cessation of the effects of the mandate to the mandator, the mandatary and the Public Curator.
BOVERRY, ATTORNEYS can provide counsel to those who want to obtain the homologation of a mandate given in anticipation of incapacity or provide assistance for the proper proceedings to be made when the mandator has again become capable. The firm can prepare all proceedings and required documentation in any such cases. We propose a very competitive fee structure which is well adapted to our clients.