Tutorship or Protection Mandate in Quebec: What’s the Difference?
The essentials: two routes exist to protect an adult who has become incapacitated. A protection mandate is the measure the person chose in advance; tutorship is the measure the court puts in place when there is no mandate. In both cases, a medical assessment and a psychosocial assessment are required — and in Quebec, the psychosocial assessment connected to protective measures is an activity reserved for social workers.
The difference in one sentence
With a protection mandate, the person decided in advance who would represent them; with tutorship, the court decides, together with the family, when protection becomes necessary.
The protection mandate: the measure chosen in advance
A protection mandate is a document the person prepares while still capable. In it, they designate one or more mandataries who will take care of them and their property in case of incapacity. Important point: the mandate has no effect until it is homologated by the court or through an accredited notary. We covered that process in detail in our article Homologating a Protection Mandate in Quebec: Steps, Timelines and the Social Worker’s Role.
Tutorship: the measure decided by the court
When a person becomes incapacitated without having prepared a protection mandate, instituting a tutorship may be necessary. Tutorship aims to ensure the protection of the person, the administration of their patrimony and the exercise of their rights. It can cover the person, their property, or both.
Since the law to better protect vulnerable persons came into force on November 1, 2022, tutorship has become the only representation measure for an incapacitated adult — curatorship no longer exists. Tutorship is now modulated: protection is no longer based on the person’s limitations, but on their abilities and faculties, which the court assesses case by case.
What the two measures have in common
- Two reports are required: a medical assessment completed by a physician, and a psychosocial assessment completed by a social worker;
- The court (or an accredited notary, for several steps) oversees the process and renders the final decision;
- The person concerned is met and their opinion is taken into account when their condition allows it;
- Every intervention must respect their wishes, preferences and autonomy as much as possible.
What changes in practice
Who chooses the representative?
With a mandate, the person chose their own mandatary in advance. With tutorship, the court appoints the tutor after consulting the family, gathered in an assembly of relatives, persons connected by marriage and friends.
Oversight of the representative
A tutor is more formally supervised: the family assembly chooses the members of a tutorship council that monitors their administration, and the Curateur public du Québec also plays a support and oversight role. A mandatary acts according to the powers set out in the mandate the person wrote.
The steps
Instituting a tutorship involves additional steps: the proposed tutor must provide a criminal record certificate and a sworn declaration, and a family assembly is convened to form the tutorship council. Homologating a mandate is generally simpler, since the person’s wishes are already set out in the document.
The steps to institute a tutorship
1. Obtain the medical and psychosocial assessments
Both reports must confirm that the person is no longer able to take care of themselves or manage their property.
2. Prepare the proposed tutor’s file
A criminal record certificate and a sworn declaration concerning civil judgments and bankruptcy.
3. File the application at the courthouse
The tutorship application is filed with the required documents. An accredited notary can accompany the family and replace the judge or special clerk in several steps.
4. Notify the person and their relatives
The application is served on the person concerned and transmitted to interested parties, including those who could take part in the family assembly.
5. Verification by the court
The court contacts the person to verify their incapacity and gather their opinion on the proposed tutor.
6. Family assembly and tutorship council
The assembly chooses the members of the tutorship council, which will monitor the tutor’s administration.
7. The judgment
The court decides whether the tutorship is warranted and sets out its terms, adapted to the person’s abilities.
And in the meantime?
During the process, the person is not left without options: measures such as temporary representation or the assistance measure may apply depending on the situation. A legal advisor can tell you what fits your file.
The social worker’s role in both processes
Whether the family moves toward homologating a mandate or instituting a tutorship, the psychosocial assessment is a required step — and it is an activity reserved by law for social workers. At Clinique Octobre, it is carried out privately by a clinical social worker who is a member of the OTSTCFQ, in Laval or by teleconsultation anywhere in Quebec, in French and English.
FAQ
What is the main difference between tutorship and a protection mandate?
A protection mandate is prepared in advance by the person themselves, who chooses their mandatary. Tutorship is put in place by the court, with the family, when a person becomes incapacitated without a mandate.
Does curatorship still exist in Quebec?
No. Since November 1, 2022, with the law to better protect vulnerable persons, tutorship has become the only representation measure for an incapacitated adult, and it is modulated according to the person's abilities.
Do both processes require the same assessments?
Yes. In both cases, a medical assessment completed by a physician and a psychosocial assessment completed by a social worker are required to establish incapacity.
Who supervises the tutor?
A tutorship council, formed by the family assembly, monitors the tutor's administration. The Curateur public du Québec also plays a support and oversight role.
Can these processes be done with a notary?
Yes. An accredited notary can accompany the family and replace the judge or special clerk in several steps, both for homologating a mandate and for instituting a tutorship.
Can the psychosocial assessment be done privately?
Yes. The reports can come from the public network or the private sector. At Clinique Octobre, the assessment is carried out by a clinical social worker, in Laval or by teleconsultation anywhere in Quebec.
A psychosocial assessment for your process
Tutorship or protection mandate: a structured process, a report prepared according to the applicable requirements, and human support in French and English. Contact us for pricing and additional information.
Discover our psychosocial assessment serviceSources: Gouvernement du Québec, Someone close to you becomes incapable · JuridiQC, Opening of a tutorship. See also our Psychosocial assessment page and our FAQ. This article is informational and does not replace professional or legal advice.
