Tutorship: Protection Regime for Incapable Persons in Quebec
Tutorship is a legal protection regime instituted by the court for incapable adults who do not have a homologated protection mandate or whose mandate is insufficient. Since the major 2022 reform (Act to amend the Civil Code, the Code of Civil Procedure, the Public Curator Act and various provisions regarding the protection of persons), Quebec has adopted a single modulated tutorship regime replacing the former distinct tutorship and curatorship regimes. This reform aims to offer protection better adapted to each person's specific needs, by modulating the tutor's powers according to the degree of incapacity established by medical and psychosocial assessments.
The 2022 Reform: From Curatorship to Modulated Tutorship
Before the 2022 reform, Quebec had two distinct protection regimes: tutorship for partially incapable persons and curatorship for totally incapable persons. This rigid system did not always allow protection adapted to the person's actual needs. The new modulated tutorship regime offers a flexible range of protections: tutorship to property only, tutorship to the person only or full tutorship (property and person). The tutor's powers can be broadened or restricted by the court as circumstances require, allowing the protected person to retain the maximum autonomy compatible with their condition.
Limitations on Mortgage Transactions
The tutor to property of a protected person is subject to significant limitations regarding real estate and mortgage transactions, governed by articles 256 to 297 of the Civil Code of Quebec. Acts of simple administration, such as payment of the current mortgage, property maintenance and payment of property taxes and insurance, can be performed by the tutor without special authorization. However, acts of disposition, which include constituting a mortgage, refinancing, selling the immovable and any act substantially modifying the protected person's patrimony, require authorization from the tutorship council and court approval. The court will assess whether the transaction is in the protected person's best interest before granting authorization.
Authorization Process for a Mortgage Transaction
- Verify the tutorship judgment: Obtain and examine the tutorship judgment rendered by the court. Confirm the existence and scope of the tutorship, including the specific powers granted to the tutor and any particular restrictions.
- Assess the transaction's necessity: The tutor must demonstrate that the mortgage transaction is necessary and in the protected person's interest. For example, refinancing could be justified to reduce monthly payments or finance required care.
- Convene the tutorship council: The tutor presents the proposed transaction to the tutorship council (composed of family members or close persons) to obtain its approval. The council evaluates the proposal and renders an opinion.
- Court authorization application: The tutor files a motion with the court to obtain authorization to proceed with the mortgage transaction. The court examines the file, the tutorship council's opinion and assesses whether the transaction serves the protected person's interests.
- Signing at the notary with verifications: The officiating notary verifies all authorizations (tutorship judgment, tutorship council opinion, court authorization) before proceeding with signing and publication of the mortgage at the Land Register.
The Role of the Quebec Public Curator
The Quebec Public Curator plays an important role in the tutorship regime. They may be appointed tutor when there is no one else to assume this responsibility, which occurs when the incapable person has no close family or when family members are unable to assume the role. The Public Curator applies strict and rigorous management rules: any mortgage transaction must be justified by the protected person's demonstrated interest. The Public Curator also monitors the management of private tutors and may intervene in case of poor administration.
Broker Responsibilities and Best Practices
The mortgage broker must handle tutorship files with particular diligence and rigour. They must verify the validity and scope of the tutorship judgment, confirm the tutor's specific powers, ensure all required authorizations will be obtained before submitting the file to the lender and coordinate closely with the notary. Transparent and proactive communication about additional timelines and documentary requirements is essential to adequately manage the tutor's expectations and ensure the smooth progress of the transaction. The broker should also inform the lender of the tutorship situation from the beginning of the process, as financial institutions apply specific verification procedures for these files.
The 2022 reform of the tutorship regime in Quebec represents a significant modernization of the legal framework protecting incapable persons, with direct implications for mortgage professionals. The shift from the rigid dual system of tutorship and curatorship to a flexible, modulated tutorship regime better serves the needs of protected persons while maintaining robust safeguards for their property interests. Mortgage brokers who develop expertise in this reformed framework can provide essential guidance to tutors navigating the complex intersection of protection law, real estate transactions and mortgage financing, ultimately serving both the interests of the protected person and the broader goal of accessible, responsible financial services.