Protected adults
Unlike for minors, there are many circumstances that can lead to incapacity for a person of full age. The legislator recognizes that adults have legal capacity, unless certain factors such as illness, deficiency or debility due to age impair their mental faculties or physical abilities, or both.1 Such incapacity may prevent adults from caring for themselves, administering their property, or both. Since there are numerous potential situations, the legislator has provided a variety of protective regimes in order to adapt to the actual needs of an incapacitated adult.
Only in exceptional cases will an incapacitated adult be represented by the Public Curator. This will be the case when it is impossible to find a member of the adult’s entourage to assume this responsibility.
However, the Public Curator will only have simple administration powers over the property of the protected adult, even if acting as curator. Consequently, the Public Curator will be governed by the rules applicable to tutors.
The legislator has provided that if the protected adult acts alone, the acts thus performed may be annulled, or the obligations arising therefrom reduced, without having to prove that any prejudice was suffered. However, for acts performed before the curatorship was established, it will be possible to have them annulled or to reduce the obligations arising therefrom as long as proof can be provided of the obvious existence of the incapacity of the person, or of the knowledge by the contracting party of such incapacity. Thus, if a broker signs a brokerage contract and then acts as an intermediary in a promise to purchase (PP), he could be held liable if he was negligent with respect to his client’s condition.
1 Art. 258 C.C.Q.
► DUTIES AND OBLIGATIONS OF THE BROKER
How to identify the seller or buyer on a brokerage contract (sale or purchase), a promise to purchase, a counter-proposal, etc.?
Enter the name of the protected adult, followed by: “Represented by” (name and contact information of the curator).
Complete section 1.1 and verify the identity of the curator. In 1.2, enter the information on the protected adult and the nature of the relationship (curator).
Who signs the forms?
Only the curator signs.
What document must the broker obtain and keep in the record?
- Ownership titles of the protected adult (if the seller)
- Judgment on appointment of curator
What forms must the broker use?
Since April 3, 2018, six mandatory forms, as applicable, must be used for transactions involving the Public Curator:
- Promise to purchase – Public Curator
- Annex – Divided co-ownership – Public Curator
- Annex – Undivided co-ownership – Public Curator
- Enhancements prior to acceptance – Public Curator
- Counter-proposal to a promise to purchase – Public Curator
- Amendments – Public Curator
For more information: Mandatory forms for any transaction with the Public Curator
Mandate
What impact does a mandate have on a real estate broker’s work?
If a person has to be away on vacation or business, or if it is difficult for him to travel, he can assign someone to take care of routine administrative tasks, such as bill payments, banking, etc., or more important tasks such as the sale or purchase of an immovable.
Article 2130 of the Civil Code of Québec defines mandate as follows:
“Mandate is a contract by which a person, the mandator, confers upon another person, the mandatary, the power to represent him in the performance of a juridical act with a third person, and the mandatary, by his acceptance, binds himself to exercise the power. That power and, where applicable, the writing evidencing it are also called power of attorney.”
The parties
Mandator: person conferring the mandate
Mandatary: person to whom the mandate is conferred
Powers of administration
The mandatary represents the mandator, acting as administrator of the property of others, just like the tutor does for the property of a minor. Unlike the tutor, whose powers of administration are set out in the Civil Code of Québec, the mandatary exercises only those powers assigned in the mandate.2
► DUTIES AND OBLIGATIONS OF THE BROKER
The mandator may confer a very general mandate with simple administration or full administration of his property. He can also choose to confer a mandated limited to a single act, such as the sale of his immovable.3
In cases where it is unclear if the mandator has conferred full administration, simple administration rules shall apply. This means that the mandatary may sell or mortgage the immovable as long as he has obtained one of these documents:
- Authorization by the mandator;
- Authorization by the court.
In either case, authorization will be granted only if it is necessary to pay debts or maintain the value of the property.
In cases where such a document is provided, the broker must keep a copy in the brokerage contract record.
2 Art. 2131 C.C.Q.
3 Art. 2135(1) C.C.Q.
Form
The mandate is also commonly referred to as a power of attorney, in reference to the writing evidencing it.4 The mandate or power of attorney does not have to take a particular form in order to be valid. In the execution of the mandate, the mandatary must act with prudence, diligence, honesty and loyalty. He must avoid placing himself in a conflict of interest.5 He must report to the mandator at the end of his mandate. Throughout his mandate, he must respect the limits set by the mandator, failing which he may be exposed to liability.
4 Art. 2130 C.C.Q.
5 Art. 2138 C.C.Q.
► DUTIES AND OBLIGATIONS OF THE BROKER
The broker must keep the following documents in the record:
|
Seller Ownership documents establishing the mandator’s right of ownership as seller A copy of the mandatary’s mandate or power of attorney Where the mandate does not provide for the right to sell the immovable, a copy of the mandator’s authorization or judgment authorizing the sale |
Buyer A copy of the mandatary’s mandate or power of attorney Where the mandate does not provide for the right to mortgage the immovable to be purchased and such mortgage is necessary, a copy of the mandator’s authorization to this effect or of the judgment authorizing such mortgage |
Who signs the form? The mandatary signs the forms on behalf of the seller or the buyer, as applicable However, the name of the seller or the buyer will appear in the section identifying the parties (clause 1.1 of the BCS, BCD or BCU and section 1 of the PP, PPD or PPI) and the name of the mandatary will be entered in clause 1.2 of the BCS, BCD or BCU and section 1 of the PP, PPD or PPI |
Mandate given in anticipation of incapacity
Article 2166 of the Civil Code of Québec states:
“A protection mandate is a mandate given by a person of full age in anticipation of his incapacity to take care of himself or to administer his property; it is made by a notarial act en minute or in the presence of witnesses.
The performance of the mandate is conditional upon the occurrence of the incapacity and homologation by the court upon application by the mandatary designated in the act.”
Obligatory form
To be valid, the mandate in anticipation of incapacity of the mandator must be made in one of these two obligatory forms:
- notarial act en minute;
- private writing signed before two witnesses.
► DUTIES AND OBLIGATIONS OF THE BROKER
What documents must the broker obtain and keep in the record?
If selling an immovable owned by the mandator:
- ownership documents confirming the mandator’s right of ownership.
Regardless of whether the mandatary wishes to buy or sell a property, the broker must:
- verify whether the mandate has been homologated* by requesting a copy of the judgment to this effect;
- request a copy of the mandate to ensure that the mandatary has the power to sell, purchase or mortgage the property in question.
*The homologation process provides a judgment that makes the mandate “official.” The judgment of homologation confirms first the mandator’s incapacity, and second the coming into force of the mandate.
For more information: Client incapacity in the course of the brokerage contract
