Major changes to plans to protect the incapacitated quietly went into effect a few days ago. On the menu: simplification of measures and increased autonomy.
Passed on June 2, 2020 and effective on November 1, the Better Protection for People in Vulnerable Situations Act (Bill 18) has as its principle the promotion of the autonomy, will and preferences of this fragile clientele. The protective measures that will henceforth be granted to them will be modulated according to their existing abilities, and not according to apparent or perceived inability.
“We really listen to their opinion,” summarizes community curator Julie Baillarde-Laverne during a webinar broadcast on November 2 in collaboration with Option consomaters.
One plan but more flexibility
Until recently, there were three types of private plans for the protection of vulnerable individuals: adult counseling, mentoring and guardianship. Each of these formulas was applied in accordance with the needs of the person in a situation of incapacity and the degree of his loss of autonomy. In extreme cases, a person recognized as incapacitated was taken over by the curatorial community.
Currently, there is only one regime – the guardianship regime. Exit adviser to major and supervise. And the guardianship formula will be adapted and modeled by the court in accordance with the position of the person to whom it will be beneficial.
Depending on the degree of incapacity and the expressed need for representation, this may be:
- guardianship of assets relating solely to the management of the assets of the person concerned;
- guardianship over a person aimed at preserving his moral well-being and civil rights;
- combinations of two measures.
After a medical and psychosocial assessment, a judge or special secretary may determine, for example, whether such a person can still manage his property independently or whether he can choose his own place of residence. Each file will be re-evaluated for a maximum period of five years.
Therefore, the guardian must always take into account the wishes and preferences of the person under guardianship before acting on his behalf.
If a caregiver does a poor job, a court-appointed board of trustees, usually made up of family members, may ask the court to replace him.
The new law also provides for the appointment of a guardian board to replace the guardian. “The Board of Trustees will also have a new role to play in resolving disputes between the guardian and the person represented,” says Ms. Bayargeon-Laverne.
Protection plans registered prior to November 1 are still in effect, but may be adjusted during their periodic re-evaluation.
Notable exception: Ex-custodians will no longer be able to sell property owned by an adult under guardianship at will. They will first need to get permission from the board of trustees if the transaction is less than $40,000, and permission from the court if the transaction is larger.
Respect for autonomy and rights is also at the heart of a new measure of protection for vulnerable people: temporary representation. This procedure will allow the court to authorize a person to take a specific action on behalf of an incapacitated person. The temporary representative could, for example, renounce the estate in his name or sell the property.
Thus, temporary representation guarantees to its beneficiary the exercise of all his rights, except those related to the act to be performed, and thus avoids the opening of guardianship. Once the action is completed, this measure ends.
Only the court can authorize a relative or any other interested person to act as a temporary representative. And this permission is also based on the assessments of the doctor and the social worker.
middle finger assistant
Another novelty that should be noted: the aid measure. It differs from others in that it is not intended for persons who have been declared legally incompetent, but for those who experience certain difficulties in making a decision or exercising their rights.
This measure is intended, in particular, for the elderly, disabled people, suffering from mild mental retardation or with functional limitations (visual, auditory, motor, etc.). It may also be useful for those who do not speak French or English. In either case, the assistant will not have signatory authority, but will be able to guide the decision-making process of the beneficiary.
Like temporary representation, the measure of assistance does not require the establishment of a protection regime. The helper may intervene only at the request of the person being assisted and only on those aspects that he has determined.
Who can become an assistant? A family member, natural guardian, friend and finally a close relative who is genuinely interested in accompanying the person. Note: The mandate of an assistant may be assigned to two people working together or separately. The mandate ends after three years or at any time at the request of the person who has been assisted.
If you would like to use this service, you must submit a request to the Curated Public, who will meet with you in the company of your designated assistant. The name of the assistant (or two assistants) will be registered in a public registry accessible by several professional organizations (doctors, pharmacists, lawyers, etc.) and service providers (banks, government agencies, telecommunications companies, etc.).
Mandate for protection
Finally, a new rule applies to the protection mandate (previously called the “incapacity mandate”).
From now on, the commissioner must draw up an inventory of the property of an incapacitated person within 60 days after the approval of the mandate. He will be required to be accountable, take into account the wishes and preferences of the principal, as well as maintain a personal relationship with the latter. He must also involve him in decisions concerning him and keep him informed.