If you are away or temporarily unable to attend to your affairs, you can grant another person the power to carry out administrative tasks on your behalf through a power of attorney. This legal document enables the “mandator” to name and authorize the “mandatary” to act on his or her behalf on all matters (general power of attorney). The power of attorney may be notarized or consist of a private written document.
The power of attorney can be revoked at any time by the mandator and applies in all circumstances, except when either party dies or the mandator becomes incapable of managing his or her affairs. It is important to understand that only a mandate in case of incapacity can authorize the mandatary to act on behalf of a person declared incapacitated.
A mandate in case of incapacity takes effect only when homologated by the Tribunal, based on proof of the mandator’s incapacity following a series of medical and psychosocial assessments, interviews and consultations. As this process of homologation can take from one to several months, there is a period of “Legal Limbo” during which no one is legally authorized to act on behalf of the mandator. To meet the mandator’s daily needs during this time, the mandatary is required to defer to the Court, which will define the manner in which the mandator’s well-being is to be managed.
No major transaction, such as the sale of a property, can be completed during this period.
If a promise to purchase was signed by the mandatary under a power of attorney while the mandator shows signs of incapacity or is in the process of assessment, the notary drawing up the transaction can refuse to complete the sale. If the sale is completed but is shown that the mandator was incapacitated at the time of the transaction, the sale may be voided a posteriori and recourse for damages and interest could be sought against the parties to the transaction.
Realtors must therefore request a copy of the power of attorney authorizing the mandatory to act on behalf of the mandator and must verify with the mandator that the power of attorney is still valid and has not been revoked. To ensure that all goes smoothly during the listing and marketing of the property until the closing of the sale, the realtor must be prudent and observe that the mandatory understands the procedures being undertaken to sell his/her property. In the event of any doubt as to the mandator’s legal capacity, the realtor should invite the mandator’s immediate family to promptly consult their legal advisor.
Ron Massad of KW Urbain Realties is located in Beaconsfield, Quebec and can be reached at http://www.ronaldmassad.com