Tutorship for an adult is a protective regime provided for by the Civil Code of Quebec. It aims to protect an adult who has become incapacitated, while respecting their autonomy. In addition, adult tutorship seeks to preserve the adult’s rights and wishes as much as possible (s. 256 C.C.Q.).

Contrary to certain common misconceptions, tutorship for an adult is not intended to deprive a person of their rights. On the contrary, it allows the adult to be assisted or represented when their situation so requires. This intervention must always be carried out in their best interest (s. 256 C.C.Q.).

What is tutorship for an adult?

Tutorship for an adult is established when the adult is incapable of taking care of themselves or of their property. This incapacity may result from an illness, a disability, or age-related impairment (s. 258 C.C.Q.).

The incapacity resulting from tutorship is established for the benefit of the adult, and not against them (s. 256 C.C.Q.). Thus, every decision must be made in their best interest and with respect for their rights. In addition, their wishes and preferences must be taken into account. Finally, the objective remains to preserve their autonomy as much as possible.

As far as possible, the adult must be informed of the process. They must also have the opportunity to be heard by the court (s. 257 C.C.Q.).

What is the purpose of tutorship?

Tutorship serves, in particular, to ensure the protection of the adult’s person. It also allows for the administration of their patrimony and the exercise of their civil rights when they are no longer able to do so alone.

The court may open a tutorship :

• To the person and property;
• To the person only;
• Or to the property only, depending on the degree of incapacity and the adult’s actual needs.

Who may apply for the opening of a tutorship?

An application to open a tutorship may be made by several persons (s. 269 C.C.Q.). This may include :

• The adult themself;
• Their spouse;
• Their close relatives or relatives by marriage;
• Any person demonstrating a particular interest in the adult;
• The mandatary designated by the adult;
• The Public Curator.

The role of the tutor for an adult

The tutor is appointed to represent the adult according to the degree of their incapacity. Thus, the tutor must ensure the adult’s care, maintenance, and moral and material well-being. In addition, the tutor must act while taking into account the adult’s condition, needs, and abilities (s. 260 C.C.Q.).

As far as possible, the tutor must :

• Maintain a personal relationship with the adult;
• Involve the adult in decisions that concern them;
• Keep the adult informed of decisions made.

The role of the Public Curator

The Public Curator exercises tutorship only if appointed by the court or when no tutor has been designated (s. 261 C.C.Q.). Thus, the Public Curator does not automatically have custody of the adult unless the court expressly so decides (s. 263 C.C.Q.)

Medical and psychosocial assessment

The opening of an adult tutorship is based on medical and psychosocial evidence. These assessments address, in particular, the nature of the incapacity, the adult’s abilities, their environment, and the extent of their needs (s. 270 C.C.Q.).

The court must also take into account (s. 276 C.C.Q.) :

• The wishes and preferences expressed by the adult;
• Their degree of autonomy;
• The opinion of the persons called upon to form the tutorship council.

A flexible and revisable tutorship

Tutorship for an adult is neither definitive nor fixed. Indeed, the judgment establishing it is always subject to review. When the incapacity ceases or the need for representation no longer exists, the tutorship may be modified or lifted by operation of law. This lifting nevertheless remains subject to the formalities provided by law.

The capacity of an adult under tutorship

The court may specify which acts the adult may perform alone. It may also determine which acts require the assistance of the tutor or full representation.

Certain important acts require prior authorization from the tutorship council or the court. Indeed, contracting a major loan, selling an immovable, or charging property with a security are included.

Why consult a lawyer?

Tutorship for an adult is a complex, human, and delicate process involving significant legal, medical, and family issues. Thus, a poor understanding of the regime or an inadequately supervised process may lead to significant consequences, both for the adult and their loved ones.

A lawyer can assist you at every stage of the process. Do not hesitate to contact our team in this regard.