Case information

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Mandate – Mandate in anticipation of incapacity – Homologation – Rendering of account – Whether mandate in anticipation of incapacity could be homologated in this case – Whether court could order mandatary to render account even though no such obligation created by mandate.

In 2008, before a notary, M.G.T. signed a mandate in anticipation of incapacity in which she appointed her daughter, the respondent L.T., mandatary in respect of her property and person. M.G.T. now has Alzheimer’s disease. As a result of a family disagreement, particularly concerning M.G.T.’s health, L.T. applied to the Superior Court for the homologation of the mandate. Her brother D.T., the applicant, countered with a motion to annul the mandate and institute protective supervision.

The Superior Court homologated the mandate but found that, in the circumstances, an obligation should be imposed on the mandatary, L.T, to render an account to her three brothers of her financial management and management of her mother’s needs. The judge also ordered L.T. not to prevent her brothers from having access to their mother and to consult them prior to any important decision about the care to be provided to M.G.T.

The Court of Appeal allowed the Public Curator’s appeal and dismissed the appeal by L.T. and D.T. It found that the trial judge had to examine M.G.T. in the circumstances and to consider instituting protective supervision as an alternative to homologating the mandate in anticipation of incapacity. Finally, the trial judge could not impose an obligation to render an account on the mandatary because no such obligation was created by the mandate in anticipation of incapacity.