THE PROBLEM:
Should illness or accident leave you incapable/incompetent under law to care for yourself, be it regarding your property or your person, then what? Someone would do so, but who.. a stanger? If you neglect to anticipate this eventuality, then there would be the establishment of a form of Protective Supervision. This is done through the bringing of legal procedures. It could be commenced by a family member, etc. or by the authorities. It must be accompanied by medical/psychological assessments. The petitioner must prove his allegations, and the court will then call a family council, or in other words, a family meeting of at least five (5) close relatives, friends, etc. The opinions expressed are an important factor in the process. The Public Curator, being a governmental department that plays a supplemental role in society, would be greatly involved. It is significant that this is possible without your beliefs and wishes coming into play.
In some jurisdictions, one has the right to address the possibility of incapacity/incompetency. In Quebec, one may do so by making a document called a MANDATE. It is permitted as a result of changes to Quebec’s Civil Code.
PARTICULARS OF A MANDATE:
In a MANDATE, you, (being the Mandator) name one or more representatives/ agents (called a Mandatary(-ies) to take care of one or both of your PROPERTY and PERSON. If you name more than one Mandatary, you should explain how a tie is to be broken. You can also name a replacement for the Mandatary, who prodeceases you, refuses and/or is unable to act. The MANDATE may be general (all inclusive) or for a specific limited purpose. The basic elements include the date, your name, the name of your Mandatary(ies) and the object mandated acts.
The first and essential requirement is that you must be capable/competent, when you make the MANDATE. You must sign before two (2) witnesses. It should be noted that you may change your MANDATE as needed. However, it is obligatory that you are still capable/competent under law and you execute the new MANDATE as per the above rules. As well, it must be said that a MANDATE is without effect, save unless and until, you become incapable/incompetent, and only once a legal proceeding is brought and the MANDATE has been homologated (verified and upheld) by the Court. This petition must also be supported by medical/psychological assessments. The Court would rule as regards your then condition and the veracity of the MANDATE. If a court does indeed homologate the MANDATE, your Mandatary(-ies) would thereupon commence to act.
REGARDING YOUR PROPERTY:
One can appoint Mandatary(-ies) for an asset or for all your property. The Mandatary(-ies) may be mandated only for simple administration, i.e. to pay the bills, etc., or they can be given full power to sell and/or grant a mortgage, etc.
REGARDING YOUR PERSON:
One may also include in a MANDATE, the provisions of an ADVANCE MEDICAL FIRECTIVE (also commonly known as a Living Will).
WHAT IS THIS ADVANCE DIRECTIVE?
An Advance medical directive (or Living Will) is a legally sanctioned document, by which one may express his/her desires respecting medical care or in certain circumstances, the refusal, discontinuation or withdrawal of all forms of life sustaining treatment (including artificial nutrition). One may thus set personal limits an advance. It must be stated that the directions thus expressed shall only be carried out to the extent permitted by law. In any event, one may be conformed by the fact that those to whom this MANDATE is given, may nevertheless, regard themselves as morally bound by these provisions.
WHAT ARE THE OBJECTIVES?
By such a directive, the writer does,
express his wishes for future reference;
attempt to make the hard decisions and not leave this burden to the family; and
lessen the legal and ethical dilemmas of doctors.
WHEN ARE THESE DIRECTIVES NEEDED?
An advance directive is needed when incapacity-competence has arisen and can speak for a person, when he/she no longer can speak for himself/herself.
ARE THERE ANY SUPPLEMENTARY WRITTINGS?
Yes, there is a Personal Values Statement. This is to assist the health care providers and care-givers in their task of understanding the patient’s intentions. The writer thus given a snapshot of the writer’s unique life experiences and an affirmation of his/her value judgments on such topics as society, religion, philosophy, morality, etc. Additionally, one can make an Organ Donation Statement.
AVOID CONFUSION:
One should not confuse this MANDATE with a Power of Attorney. A Power of Attorney would not be of any help should you be declared incapable/incompetent, as it would then be without legal effect. As well, yur Last Will and Testament won’t be applicable. As you know, your will only comes into force upon your decease, AND NOT YOUR BECOMING INCAPABLE/INCOMPETENT. The only document that covers incapacity/incompetency is a MANDATE.
CONCLUSION:
Don’t put off, what you can do today. As yu know, loose-ends should be avoided as much as possible; and in order to minimize the legal problems arising from the possibility of your becoming incapable/incompetent, you are well-advised to make a MANDATE.
CAUTION/DISCLAIMER: The foregoing article is only for informational purposes and is not meant as legal advice. Seek out legal counsel for your particular needs.
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