A family member becomes incapable: what to do?

What does it mean to be incapable?

People who are incapable are often described as being “not all there.” They become unable to make informed decisions, take care of themselves or manage their assets.

Before being declared incapable, a person must be assessed by a physician and a social worker. The incapacity may be:

partial or total, depending on the assessed person’s degree of autonomy.
temporary or permanent, depending on whether the person’s condition improves or not.

A need for protection

Because they are vulnerable, incapable persons need to be protected. They must be helped with what they do and with their decisions, while allowing them the most autonomy possible. The kind of protection is determined based on the clinical assessment.

People can be taken in charge by their family without involving the legal system. This solution is possible if the person has a solid network and management of his or her assets is simple. If not, you must turn to the court, which will appoint a legal representative.

The legal representative’s role

The legal representative acts on the incapable person’s behalf and in his or her best interest. The legal representative makes decisions and reports on actions concerning the person’s:

well-being (consent to care, where the person lives, service requests, everyday purchases, etc.);
assets (income management, bill payment, investments, etc.).

The steps for protecting someone with reduced autonomy

1. Assemble the family and work together to decide on the steps to take.

2. Request a clinical incapacity assessment of the person with reduced autonomy. To do this, contact the integrated health and social services centre (a CISSS or a CIUSSS). It must be the centre responsible for the services offered in the region where the person lives.

3. If necessary, check whether there is a protection mandate (formerly called a mandate in case of incapacity).

4. If there is one, have it validated (also referred to as homologated) by a court. We suggest you get a notary or lawyer to help you with this step.

5. If there is no protection mandate, or if it is incomplete, ask the court to institute protective supervision:

Tutorship in cases of partial or temporary incapacity;
Curatorship in cases of total and permanent incapacity.

The tutor or curator named by the court becomes the person’s legal representative. If no family member can be designated, the Curateur public takes on this role. A legal expert or the Curateur public can provide further details about instituting protective supervision.

Important note: By June 2022, the Act to amend the Civil Code, the Code of Civil Procedure, the Public Curator Act and various provisions as regards the protection of persons will have come into force. This Act will simplify protective supervision. For more information, see the Curateur public website.

Make sure choices are respected

So long as someone is competent, they can specify their choices in case of incapacity ahead of time. They can draft the following with a notary or in the presence of witnesses:

Their medical directives for accepting or refusing certain care or treatment in cases of incapacity;
A protection mandate to designate the person who will oversee their well-being and assets.