Natural persons
The juridical personality
Each person has a juridical personality that belongs to them alone and distinguishes them from any other person (name, parentage, sex, date of birth, marital status and property).
Capacity
Whenever a contract is involved, capacity comes into play. Capacity is the ability to enter into a valid legal act that engages one’s responsibility.
Capacity is acquired gradually. The law refers to incapacity with respect to minors and protected adults. For minors, capacity will vary depending on age, the ability to discern right from wrong, and actions. For protected adults, incapacity is often the result of illness, accident, aging, or drug or medication abuse. These individuals will need to be represented by an administrator of the property of others, who is granted powers and authorized to take certain actions.
Administration of the property of others
Generally speaking, an administrator of the property of others may be charged with two types of administrative powers:
- Simple administration
- Full administration
Simple administration
This power enables the administrator, among other things, to take all necessary action to conserve the property (movable or immovable) that constitutes the patrimony. In addition to collecting the fruits and revenues generated by the property thus administered, the administrator collects the debts and may also make investments that are presumed sound under the Civil Code of Québec.1
Examples of acts of preservation of an immovable:
- Insuring the immovable;
- Entering into a contract for repairs;
- Entering into a contract for snow removal or landscape maintenance.
Sale of an immovable
An administrator charged with simple administration of the property of others is not authorized to sell or mortgage the immovable.
Purchase of an immovable
Under article 1339 of the Civil Code of Québec, titles of ownership in an immovable are investments presumed sound if the purchase is made in cash. Thus a representative charged with simple administration could purchase an immovable on behalf of someone, with this person’s money, as long as the transaction is in the interest of the minor or protected adult (e.g. a disabled child in need of housing better suited to his needs). However, if the purchase of such an immovable requires a loan secured by an immovable hypothec, the administrator will need the authorization of the tutorship council or the court, as the case may be.
1 Art. 1304 C.C.Q.
Full administration
The person charged with the administration must perform all acts of conservation of the property (movable and immovable) that constitutes the patrimony, as well as acts that allow it to grow, in the interest of the beneficiary. In addition to the above-mentioned acts of conservation, the representative has the power to sell an immovable or to grant a mortgage.
