Intérêts et attentes légitimes : le mandat de protection, un contrat de choix
In the late 1980s, the legislator introduced an institution allowing an individual of full age and able to exercise his civil rights to entrust, in the event of his inability, his well-being, the administration of his patrimony and, in general, his protection to a trusty person. This institution is called the mandate given in anticipation of the mandator’s incapacity.  However, the onset of the mandator’s inability is a precondition to an accurate evaluation of his needs. This situation has led a certain doctrine, in order to safeguard the residual autonomy of the mandator, to invoke the principles governing the protective supervision of a person of full age. Unfortunately, without a specific provision to that effect, it appears that this pathway cannot be adopted.  Accordingly, this text attempts to demonstrate that the principles brought up by the Charter of human rights and freedoms and the general provisions governing contractual agreements under the Civil Code of Québec allows to ensure the protection of the mandator in respect of his interests and his legitimate expectations. This approach also reconciles the respect of the mandator’s residual autonomy, his wishes and his need of protection and ensures the effectiveness of the institution.
Mandat Protection Mandate Mandator Mandatary Protection Inability Incapacity Autonomy Interests Legitimate expectations