Alzheimer’s – access to assets
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Q: I have a friend whose father is diagnosed with Alzheimer’s and his partner cannot access any assets because they are in his name. Can you please explain what would need to be done to make sure that no assets are frozen for people in this situation? Is it true that all of this must be put in place previous to an official diagnosis by a doctor?
A: Generally, anyone of sound mind can give a mandate or power of attorney to someone to perform specific acts related to financial matters such as giving someone the power to pay bills or cash cheques. A domestic mandate also exists legally between married couples to take care of one another. In certain cases governments and insurers are allowed to make arrangements with a third party for the cashing of cheques in cases of inaptitude but they do not give powers to manage all of the assets.
There are factual questions, including the degree of incapacitation that must be verified, to see if the above can apply along with verifying whether a protection mandate was signed. This is when people who are not incapacitated write a protection mandate covering the situation where they do become incapacitated.
However to validate a signed protection mandate one must go to court in the judicial district in which the incapable person resides and file an application. You have to include a copy of the medical and psychosocial assessments establishing the mandator’s state of incapacity. The court judgment then allows for the applicant, when all criteria are met, to take care of property, money or debts.
If none of the above applies and there is confirmed Alzheimer’s, your friend may have to take further steps.
In those cases when a person is no longer in full possession of their mental faculties and if that person has not prepared a protection mandate and other legal forms of representation do not apply, and their financial situation needs a legal representative, you must file a different court application.
You must obtain medical and psychosocial assessments confirming the person’s incapacity and need for protection. You may contact for help the integrated health and social services centre (CISSS) in the territory in which the person resides.
Once the medical condition is confirmed, there is a choice to be made (excluding the nomination of a temporary advisor for a temporary condition which is not your case). The choice depends on the degree of illness and other legal criteria to determine whether you ask the court for a tutor or a curator.
Tutorship is proposed for a person who is partially or temporarily incapacitated. An incapable person benefiting from tutorship can perform certain actions on their own or be assisted by their tutor. The scope of a tutor’s responsibility is determined by the court, sometimes following the recommendation of any intervening family and friends.
More serious is the curatorship choice when a person is totally and permanently incapable of caring for themselves and managing their affairs. Again the court decides the scope of the curator’s responsibilities.
Based on your question that refers to an irreversible medical condition, with access seemingly already denied to financial assets, it may be appropriate to explore the application for a court-named representative. Access to property would then necessarily have to go through the courts for management and protection of the assets.
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