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WILL AND INCAPACITY MANDATE

Welcome to the new era of Succession planning, where no Quebecer is left behind.

Getting your Last Will and Testament and Mandate in the Event of Incapacity has never been easier.

DO YOU NEED A WILL?

Your will is like an instruction manual for your loved ones that becomes activated upon your passing.

If you pass away without a legal will, these decisions are often left to the discretion of the court or public curator. Instead of carrying out your wishes, your loved ones may be left in conflicts which often lead to complex and costly legal proceedings. Completing your Will offers you the peace of mind that comes from knowing your wishes will be followed and your loved ones protected when you pass.

A will is a legal document that sets in writing your wishes regarding the division of your personal property and assets after your death. It allows you to provide information concerning issues such as: The distribution of your property and your assets The appointment of the person who will carry out the terms of your estate (the liquidator) and his or her successor, if any The remuneration of the liquidator, if applicable The choice of guardian for your minor children Funeral and burial arrangements

Any person sound of mind can prepare a will. However, with regard to minors, only low-value goods can be included in a will.

No, a will is an individual document, even if you are married. Under Quebec law, a will must be able to changed by one person only. In other words, if several people prepare a will and want to change it later, one person cannot make decisions on his or her own, a state of affairs the law aims to prevent. However, an exception exists: marriage contracts prepared by a notary authorize a joint will.

If you wish for all of your property and assets to be transferred to your spouse should you pass away before him or her, you are not required to write a will. WARNING: such a clause is only valid if the marriage contract is notarized. However, it may be advisable to prepare a will. In addition to recording your wishes as to the division of your property and your assets, a will serves to appoint a trusted person as liquidator as well as communicate your wishes regarding your funeral and burial arrangements, and custody of your minor children, as the case may be. Also, should you want to leave property or assets to your children, other family members or friends, you must draw up a will. A will allows you to elect various heirs and deem what portion of various assets you wish to bequeath to each, which a marriage contract cannot do.

Three types of wills that exist in Quebec. Holographic Will: A holographic will is a document written entirely by hand and signed by the Testator. The advantage of such a will is that it is simple to complete and costs nothing. However, with this kind of will, you expose yourself several risks. Since it is not signed before witnesses, this type of will is the most common to be contested and may then not be validated by the court. Will signed before witnesses: A will signed before witnesses is a document prepared by a lawyer and signed by the you, the Testator, and two witnesses (who must not be heirs). One advantage of this type of will is that witnesses can authenticate your wishes. On the other hand, a will signed before witnesses must be homologated upon your passing as it is not considered a priori as authentic.

Dying without a will leaves numerous questions unanswered regarding your funeral and burial arrangements, division of your assets and guardianship of your minor children, as the case may be. If you pass away without a will, it is up to the court to choose a liquidator for your estate and determine how your belongings and assets will be distributed. In many cases, family conflicts can emerge, resulting in lengthly and costly court battles. We recommend that each person complete a will to record their wishes and update it regularly to ensure that in the event of their death, their wishes will be respected and their family will be spared conflict and litigation that may result.

DO YOU NEED A MANDATE IN CASE OF INCAPACITY?

What would happen if, due to an accident or illness, you were not able to manage your business or your property? Who would take care of your property and your finances or retain custody of your children? Be it for yourself, a family member or friend,a mandate of protection would guarantee that your wishes are respected in case you – knock on wood- become incapable.

It is not pleasant to contemplate such physical or mental incapacity. Yet, by contemplating such scenarios, you can lighten the burden of worry. With a incapacity mandate, you will guarantee yourself peace of mind by knowing that your property is in good hands.

A mandate in case of incapacity is created by a person in possession of his full mental capacities, authorizing another to act on his or her behalf if he or she becomes incapacitated, which, In the legal sense of the term, means he or she is unable to be autonomous or manage his or her own affairs. In the context of this contract, a Mandatary is appointed to care for the physical and mental well-being or property and assets of the Mandator when that person can no longer do so himself.

If you or your property need to be protected and you have not given a mandate in anticipation of incapacity, anyone in your entourage (spouse(s), family member(s), friend(s), etc.) can ask the court to proceed with the opening of protective supervision in your favor. Depending on the situation, a counselor, guardian or trustee may be appointed to ensure your well-being and manage your property.

A mandate in case of incapacity does not take effect automatically if you become incapacitated. The court must first evaluate your state and confirm that you are, in fact, incapacitated. If the court deems that you are no longer capable of managing your own affairs, the Mandate in case of incapacity mandate enters into In a process called probation. The Mandatary can then begin to play carry out his or her duties in accordance with the powers granted by the Mandator.

Anyone can act as Mandatary – a family member, friend or even a stranger. However, since you grant this person powers of representation allowing him or her to act on your behalf, be sure to choose a person you trust.

A Mandate in case of incapacity is a legal contract between the Mandator and the Mandatary that requires the latter to fulfill certain obligations. The Mandatary must, for example:

  • Ensure the physical and moral well-being of the individual who has become incapacitated.
  • Act with prudence and reliability on behalf of the Mandator and in their best interests.
  • Take care of the Mandator, ensure that his or her needs are met and any medical treatments are well-administered.
  • Be the one who carries out the responsibilities of the contract unless it stipulates that the Mandatary may delegate or receive assistance to complete those responsibilities.
  • Take care of the financial assets of the grantor, as well as pay bills.

You are not obligated to pay the Mandatary you elect to manage your affairs. However, since they are providing you with a service, remuneration is often a good motivator for fulfilling the designated tasks.

In principle, a mandate in case of incapacity is a contract prepared in anticipation of incapacity that resulting from an accident or illness for example. However, a Mandate in case of incapacity is conditional on the fact that the Mandator drafted the mandate when he or she was able to do, that is to say when he or she was of sound mind. Therefore, as long as you are of sound mind, you can make changes to your Mandate in capacity. Please note that it will need to be signed once again which brings additional fees.

In some cases, a Mandator regains capacity. If this occurs, a “mandate revocation request” may be submitted to the court permitting revocation of the Mandate if the court confirms that the Mandator is once again of sound mind.

A Mandate in case of incapacity is created by a person of sound mind to authorize another (to act on his or her behalf in the case that he or she becomes incapacitated, meaning he or she is unable to be autonomous or Mandate his or her own affairs. Under a Mandate in case of incapacity, a Mandatary is appointed to manager the physical and mental well-being of the Mandatary as well as their property and assets when they cannot do so on their own. A will is a legal act which contains the last wishes of a person regarding the division of his or her property and assets, custody of his or her minor children, as well as specific requests with respect to funeral or burial arrangements. In a will, one appoints a liquidator who will be responsible for executing the specifications of the will. The main difference between the two documents is the fact that a Mandate in case of incapacity is a contract between the Mandator and the Mandatary, both of whom are still living. A will, in turn, records the wishes of a Testator regarding how his or her assets will he divided among heirs, among other things, and only comes into effect upon the Testator’s passing.

A mandate in case of incapacity is created by a person of sound mind and authorizes someone else to act on their behalf in the case that he or she becomes incapacitated, meaning unable to function autonomously and manage his or her own affairs. As part of a Mandate, a Mandatary is appointed to look after the physical and mental well-being or property of the Mandator when he or she can no longer do so himself. The rules that apply to a Power of Attorney are different. A Power of Attorney is created to authorize another person to act on one’s behalf in various situations, such as paying rent, withdrawing money, receiving money or signing contracts. A Power of Attorney is not used because one has become incapacitated, but rather because an event or circumstance such as distance or a temporary handicap prevents the person from completing certain tasks on their own.

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