The mandate in case of incapacity or protection mandate is a document, executed before a notary or signed in the presence of two witnesses, in which a person, the mandator, appoints the people in charge of taking care of his or her person following an accident or disease and where the mandator no longer has the mental faculties to express his or her wishes, namely in cases such as Alzheimer’s disease, a coma or dementia.
The protection mandate is not valid upon signature, it must be homologated, either before a notary or by the court before coming into full force and effect. Indeed, since the protection mandate authorizes the substitution of the mandator by the mandatary for all purposes, whether it be to close the bank account, change the personal identification number or other, it is imperative that the court or a notary authorize the process in order to prevent fraud. The principle of protecting a person in a position of weakness takes precedence here.
The protection mandate executed before a notary allows, among other things, the mandator to have a serious discussion with the notary concerning the manner in which the mandatary will perform his or her duties. The notary can assist the mandator in finding the person best-suited for taking care of his or her property, person, or both.
Furthermore, the protection mandate may contain living will clauses in order to spare loved ones of having to decide, when the time comes, whether or not to pull the plug. This takes away some of the stress in an already quite unpleasant situation.
While the protection mandate before witnesses must also go through the homologation process, a protection mandate executed before a notary presents a real advantage: it attests to the capacity and wishes of the mandator at the time of signature, therefore ensuring that our wishes are respected when we can no longer express them for ourselves.