Many families think a mandate has to be homologated as soon as a parent gets older or receives a diagnosis. It does not. Homologation does one thing. It puts the mandate into effect once the person has become incapable. Here are the situations where it is not required, and the ones where it is.
I am a social worker, not a notary or a lawyer. This page is general information. For advice on your own situation, speak with a notary or lawyer.
The short answer
Homologation of a protection mandate (once called a mandate in case of incapacity) is not required while the person is still capable. It is also not required when simpler solutions meet the person's needs. It becomes necessary when the person is incapable and has to be represented for several decisions. Without homologation, the mandate has no effect.
Looking for the homologation of a will?
That is a different process. In Quebec, it is called probate of a will.
- A notarial will does not need to be probated.
- A holograph will and a will made in the presence of witnesses must be probated after the death, by a notary or by the Superior Court.
I do not handle estates. A notary can guide you, and Québec.ca explains probating a will. The rest of this page is about the protection mandate.
When homologation is not required
1. Your loved one is still capable
A protection mandate is made for incapacity. As long as your loved one understands their decisions and can express them, the mandate stays dormant. A diagnosis of Alzheimer's or dementia does not make a person incapable on its own. I cover this in can a parent with dementia still sign a protection mandate?
At this stage, a power of attorney may be enough to help with their affairs. See power of attorney vs. protection mandate.
2. Your loved one is well supported and simpler solutions are enough
The Quebec government recognizes this. When a person is well supported, their situation does not always call for homologating the mandate or opening a tutorship. Some simpler solutions:
- The assistance measure. One or two recognized assistants support the person and act as go-betweens. They do not decide for the person. See the assistance measure in Quebec.
- Administration by a third party. Some government departments and agencies can designate someone to manage a pension or a benefit.
- A power of attorney, if it was signed while the person was capable. Be careful, because it is not built for incapacity. See power of attorney for a parent with dementia.
3. Only one specific act is needed
If your loved one is incapable but needs to be represented for a single act, temporary representation may be enough. One example is renouncing a succession. You apply to the court for it. The representation ends once the act is done, and the person keeps all their other rights.
4. You are the person's husband or wife
Married and civil union spouses have a few tools of their own. One spouse can act for the other for the family's everyday needs. The court can also authorize a spouse to carry out alone an act that normally needs the other's consent. These tools do not apply to common-law partners.
5. The decision is about consent to care
For health care, the law allows a close relative to consent for a person who cannot, even without a homologated mandate. The care team will guide you. Québec.ca explains consent to care in the event of incapacity.
When homologation becomes necessary
Homologation becomes necessary when your loved one is incapable and needs to be represented for several decisions. Some common signs:
- The bank or caisse refuses to let you act.
- The house has to be sold, or a lease in a residence has to be signed.
- The decisions are piling up, about care and about property.
- Your loved one is at risk of financial exploitation.
- The family does not agree on what to do.
Once incapacity has been established, the process can begin. Only the mandatary named in the mandate can apply. See the 7 steps of homologation.
What if there is no mandate?
Without a mandate, there is nothing to homologate. If your loved one is incapable and needs to be represented, the family can apply to open a tutorship. See what happens if there is no protection mandate.
How do you know where your loved one stands?
The family does not have to decide this alone. Two evaluations inform the decision. A doctor does the medical evaluation, and a social worker does the psychosocial evaluation. The psychosocial evaluation looks at exactly this question, the need for protection. It covers what the person can still do, who is around them, and whether a simpler solution would be enough. See do you need a psychosocial assessment to homologate a mandate?
Where I fit in
I am a social worker and a member of the OTSTCFQ. I prepare the psychosocial evaluation required to homologate a protection mandate or to open a tutorship to a person of full age. I meet your loved one where they live, across Greater Montreal, on and off the island.
Common questions
Does a protection mandate always have to be homologated?
No. Homologation is required only once the person has become incapable and needs to be represented. While the person is still capable, the mandate stays dormant and there is nothing to do.
Can we use a protection mandate without homologating it?
No. Until it is homologated, a protection mandate has no effect. The mandatary cannot act in the person's name, for example to access their bank accounts.
When should I apply for homologation?
Once incapacity has been established and your loved one needs to be represented for several decisions. Only the mandatary named in the mandate can apply.
Does a will have to be homologated in Quebec?
In Quebec, the process for a will is called probate. A notarial will does not need to be probated. A holograph will and a will made in the presence of witnesses must be probated after the death, by a notary or by the Superior Court.
My parent has an Alzheimer's diagnosis. Do we have to homologate the mandate right away?
Not necessarily. A diagnosis alone does not make a person incapable. Homologation becomes necessary when the person can no longer take care of themselves or manage their property, and needs to be represented.
Ready to take the next step? I prepare the psychosocial assessment for both homologation of a mandate of protection and tutorship to a person of full age. Each page explains how the process works with me.