Now that you have made preparations to write a will, even booked the appointment with your notary, it would be wise to ask the notary to also draw up for you a mandate in case of incapacity.

Why a mandate in case of incapacity?

It is hard to imagine that you would not be able to accomplish the most mundane everyday tasks like paying your bills, getting groceries, booking a doctor’s appointment. But, accidents can happen; sudden illness can strike. If you have not made provisions for such an event, and you were to become incapacitated, a protective supervision would have to be set-up for you by the court. What kind of supervision would this entail? And who would be chosen to represent or assist you? The answers depend on the nature of your needs at the time and the extent of your family situation. Problem is most people’s family situation is anything but straight forward. We live in an age where de-facto marriages and reconstituted families are common place, where spouses separate, but do not always obtain a legal divorce, where still others are estranged from their family members. More to the point, if you were to become incapacitated, wouldn’t you rather choose for yourself who would take care of you and your affairs?

This is the purpose of the mandate in case of incapacity. It allows you to appoint a mandatary who would ensure your personal well-being as well as the administration of all your property if you were no longer able to do so yourself. You can even include in the mandate “living will” provisions such as the ability to accept or refuse certain kinds of treatment or surgery. The legal document is drawn up while you, the mandator, are of sound mind. It goes into effect only if you became incapable of managing your affairs. A medical, psychological and social assessment would have to be completed to prove this. The court would then have to validate this evidence as well as the legal veracity of the mandate itself. This process is called homologation.

How to set-up the mandate

Just as you can draw up your own will, the law allows you to write your own mandate in case of incapacity, as long as you are of sound mind at the time of writing and the document is signed by two disinterested witnesses who can attest to that fact.

Nonetheless, there is little doubt that a mandate drawn up before a notary is well worth the legal fees (currently around $175- $250). First, the notarized mandate is more difficult to contest. As a result, it is more likely to go into effect as quickly as possible when it is needed. Remember that the mandate does not become effective legally until your mandatary (or the notary acting on his or her behalf), obtains a judgment of homologation from the court.

Second, a notarized mandate can never be lost since it is entered in the Register of Mandates kept by the Chambre des notaires. This is a centralized registry that ensures all mandates can be easily traced. Lastly, and perhaps most importantly, a notary will ensure you do not leave out any crucial details.

The mandate in case of incapacity allows you to decide on the full extent of the powers you wish to give to your mandatary. Normally, it should give wide-ranging powers to the mandatary and provide for the latter’s replacement should that become necessary. (Note that the mandatary cannot resign unless he or she has found an acceptable replacement or has filed for protective supervision. This entails the appointment by the court of a new representative as well as the degree of the protection required.)

If the provisions of the mandate are insufficient or unclear, an application for protective supervision may have to be filed on your behalf with all the delays and legal costs this entails. Your mandatary could even find themselves acting alongside a court-appointed representative in order to fulfill the “protection” not covered by your mandate. It could be very tedious and might entirely defeat the purpose of establishing a mandate in the first place.

In short, if you want to enjoy the peace of mind that a legal document such as this is meant to provide, you may as well do it right. That means asking a notary to draw up a mandate for you based on your individual situation and wishes. All you will need to think about is choosing the right person to act as your mandatary. It goes without saying that this person must be someone close to you whom you trust implicitly.

Who should have a mandate in case of incapacity?

Everyone, young or old, married or single, should consider setting-up a mandate in case of incapacity. It is particularly important if:

• you are in a de-facto marriage;
• you are separated from your spouse but not divorced;
• you run your own business; or,
• you have little or no contact with your family.

If you take care of putting a mandate in place at the same time as you do your will, the whole process can prove to be quite painless and even cost-effective. So don’t wait! It is the kind of thing one never regrets. And if you change your mind about some details or wish to change the mandatary, you can revoke your mandate at anytime and enact a new one.