A Loved One Becomes Incapable: The New Regime Since Bill 18

Since November 1, 2022, curatorship and the adviser to a person of full age are gone, replaced by a court-tailored tutelle, temporary representation and a new assistance measure.

Marc’s father is seventy-nine and lives alone in Aylmer. For the past year, bills have been piling up on the counter, the fridge is empty and he has paid the same insurance premium twice. Yet he refuses to let anyone meddle in his affairs: he is still capable, he says, and most of the time he is right. Marc’s sister talks about “putting Dad under curatorship.” A pamphlet picked up at the pharmacy mentions an “adviser to a person of full age.” Marc searches online and finds three different answers, two of them out of date.

No surprise there: the vocabulary changed from top to bottom on November 1, 2022, when Bill 18 came into force.

What disappeared, and what remains

Before 2022, the Civil Code provided three “protective regimes,” graded according to the degree of incapacity: the adviser to a person of full age, tutorship and curatorship. Curatorship for adults and the adviser to a person of full age no longer exist.

The Code now recognizes only one judicial representation measure: tutelle for a person of full age — tutorship, the court-ordered regime designed to ensure the protection of the person, the administration of their patrimony and the exercise of their civil rights (art. 256 C.c.Q.). The expression “protective regime” itself has disappeared from the Code, even though it survives in everyday speech.

Watch out for the terminology trap: it is not the Public Curator that was abolished. The institution still exists and still bears that name; it simply never acts as a “curator” anymore: when appointed, it acts as tutor. It also keeps the public registers of representation measures and of assistants to persons of full age.

The tutelle for adults, now tailored by the court

A tutelle is instituted where the court is satisfied that the adult is incapable of caring for themselves or of administering their property and needs to be represented in the exercise of their civil rights (art. 268 C.c.Q.). Both conditions count.

The great novelty is modulation. The court is not bound by what it is asked for: it may appoint a tutor to the person and to property, or to only one of the two, appoint a replacement tutor, or set up a tutelle whose nature and terms differ from those requested. The guiding idea is to take away from the adult only what must be taken away. Every decision must be made in the person’s interest, with respect for their rights and the safeguarding of their autonomy, taking their wishes and preferences into account (art. 257 C.c.Q.). That reference to wishes and preferences, new in 2022, is not cosmetic.

Opening a tutelle requires a medical assessment and a psychosocial assessment. The court also considers the opinion of the persons called upon to form the tutorship council, the adult’s wishes — including those expressed in a protection mandate that was never homologated — and their degree of autonomy (art. 276 C.c.Q.). The adult must have the opportunity to be heard, and the Public Curator must be notified of the application.

The tutor takes on serious obligations, modelled on those of the tutor to a minor (art. 266 C.c.Q.): an inventory of the property, security where required, a tutorship council and annual accounting. This is not a favour you do on a Sunday afternoon.

The frequent trap: assuming that reassessment happens automatically every three or five years, as before. It is now the court that sets the timelines when the tutelle is opened. They may not exceed five years, except for the medical reassessment, which can extend to ten years where it is clear the situation will remain unchanged. And the adult may ask to be reassessed at any time (art. 278 C.c.Q.).

A single act to perform: temporary representation

This is the least-known measure, and often the most useful. The court may authorize a person to perform a specific act in the name of an adult whose incapacity is such that they need to be represented temporarily for that act (art. 297.1 C.c.Q.).

Think of selling the family home to pay for long-term care, or cashing in an investment that has come to term: no need to open a full tutelle for a single transaction. The resulting incapacity is temporary and covers only that act; the measure ends as soon as the act is performed. Here again, the medical and psychosocial assessments are required and the adult must be able to be heard.

The frequent trap: launching a full tutelle — long, costly, intrusive — when only one act needed to be performed.

The assistance measure: before incapacity

Here is the true innovation of 2022, the one that would probably have suited Marc’s father a year ago. An adult who, because of a difficulty, wishes to be assisted in caring for themselves, administering their patrimony or exercising their rights may ask the Public Curator to recognize a person who agrees to assist them (art. 297.10 C.c.Q.). The recognition is entered in a public register.

This is where the line runs between incapacity and mere frailty. A tutelle presupposes an incapacity established by two assessments. The assistance measure requires no medical assessment at all: a difficulty is enough. The assisted adult retains full capacity to exercise their civil rights, and the assistant may not sign in the adult’s name or become a party to their acts (art. 297.13 C.c.Q.).

The assistant acts as an intermediary: they receive and pass on information, including from people bound by professional secrecy, and communicate the adult’s decisions. Above all, a third party — bank, hospital, insurer — cannot refuse to let them act in that capacity. No more “sorry, I can only speak to the account holder.”

A few practical markers: the application is made to the Public Curator by the adult personally, jointly with the proposed assistant, or through a lawyer or an accredited notary. The adult is met without the assistant present, and the assistant’s judicial record is checked. The application is notified to at least two people in the adult’s circle, who have thirty days to object. The assistant is not paid, and the recognition ends after three years.

The debate is real, and openly acknowledged: the Public Curator runs campaigns to publicize the measure and is piloting a project to let non-profit organizations act as assistants for isolated populations, since the law currently admits only natural persons. The public nature of the registers also raises privacy questions, which the administration justifies by the security of transactions.

The protection mandate: the best plan is to have planned

The protection mandate — which many still call a “mandate in case of incapacity” — is given by an adult in anticipation of their incapacity. It is made before a notary or before two witnesses, and can no longer be made jointly by two people (art. 2166 C.c.Q.).

Its taking effect depends on two things: the onset of incapacity, established by medical and psychosocial assessment reports, and homologation by the court, that is, judicial recognition that the mandate takes effect. The application is made by the mandatary named in the deed; being non-contentious, it may also be presented before a notary (art. 312 C.p.c.).

Since 2022, the mandate must state to whom the mandatary will render account and how often, at intervals that cannot exceed three years (art. 2166.1 C.c.Q.). It may also record your wishes regarding care and living environment, with advance medical directives taking precedence in case of conflict.

The frequent trap: believing that a signed mandate settles everything. Without homologation, it produces no effect. And if it does not cover the whole situation, a tutelle can be opened to complete it.

Key takeaways

Curatorship for adults and the adviser to a person of full age have not existed since November 1, 2022; all that remains is the tutelle for adults, tailored by the court.
The Public Curator, for its part, still exists and keeps the public registers of representation measures and of assistants to persons of full age.
For frailty without incapacity, think of the assistance measure: no medical assessment, the adult keeps full capacity, and the recognition lasts three years.
For a single act to perform, temporary representation avoids opening a full tutelle.
Every tutelle requires a medical assessment and a psychosocial assessment, and the court itself sets the reassessment timelines, up to five years.
A protection mandate produces effects only once homologated. Make one while you are still capable.