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The power of attorney is a document in which a person has given another person the power to act on their behalf. In most of North America there is also an Enduring Power of Attorney, that is to say, a Power of Attorney that lasts from when it is signed until the person’s death, whether the person becomes incapable of handling their affairs or not. In Quebec, the Enduring Power of Attorney called a Power of Attorney with Incapacity Clause or more modernly a Protection Mandate is treated differently than in most of the rest of North America.
In Quebec, once a bank or investment advisor is made aware of the incapacity of their client they frequently stop honouring the power of attorney on file even if it has an incapacity clause. A notary selling the property of an incapable person will not honour it either. Where before all seemed to be working properly, all of a sudden the person named in the power of attorney is blocked from acting. This is because, although it is not completely clear in the law, for all practical purposes, once a person residing in Quebec becomes incapable it is necessary to pass through a court process to approve the appointment of the person named for the period of incapacity. This process is called “homologation”.
What to do? Your best course of action is to contact a notary. The notary will be able to help you to determine if an incapacity clause in the existing power of attorney can be homologated through the court or if a separate Protection Mandate exists. If the document can be homologated then, to begin the process, a special doctor’s report stating that the individual is incapable is required. After this, a social worker must draw up a psychosocial report of the incapable individual and his social environment. From here, the process can be set in motion by the notary. In all, once the medical and psychosocial reports are available and there are no complications, it can take two to six months depending on whether the notary is accredited to go through the process himself or if it is done through the deputy clerk of the Superior Court.
During the process of homologation the existing power of attorney should be able to be used by the person named in it. That said, many financial institutions prefer not to honour them unless the acts being performed are strictly to protect the incapable person’s assets or they are being used to pay the ordinary bills of the incapable person.
In short, if you are unable to use your power of attorney, a notary can help you to navigate through the system so that there is someone who can act on behalf of the incapable individual even if there is no incapacity clause in the power of attorney and no Protection Mandate. If it is important to find a notary accredited to proceed using the accelerated process.
This article was written by Mtre. Kim Isings, accredited notary at Spiegel Sohmer Inc. , 514-875-8952, [email protected]. Should you have questions, she can help you figure out the best course of action in your specific circumstances.