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What is a Mandate and do you need one?

17 October 2008
Bonnie Sandler, S.W., The Senior Times - October 2008

In my assessments of families dealing with Alzheimer’s, I will ask whether there is a mandate. Some families are not clear on what a mandate is and often confuse “mandate” with “power of attorney.”

I explain to the best of my ability and advise people to contact their notary or attorney for further details. But knowing the importance of accurate information, I turned to Joyce Blond Frank, attorney from Elder Aide, who provi­ded me with the following information.

Joyce says it’s important to know that in the Civil Code the mandate is the same as a power of attorney and the Mandate Given in the Event of Incapacity has its own chapter.

A Mandate Given in the Event of Incapacity is a document that is prepared while you are fully capable of making decisions. You can designate someone to provide needed care and protection with regard to health and property, instructing chosen people to carry out your wishes when you are no longer capable of doing so. You can assign one person to handle all these matters, or divide the responsibilities of financial and health care between two people.

If a mandate is not in place, then should the time come when decisions need to be made, and you are deemed incapable of making these decisions, then someone will be named for you. When there is no mandate, the court may decide that you need “protective supervision.”

In this case, if there is nobody to care for you, the Public Curator will become responsible for your assets. The care of the person, except in very rare cases, is left to a relative, friend, or the facility where the person resides. To avoid this, it is best to have a mandate and choose the person or people you trust to carry out your wishes.

Joyce goes on to explain that the Mandate Given in the Event of Incapacity should not be confused with a will, which takes effect only after death, nor should it be confused with a power of attorney, which allows someone to act for us in activities that we may be perfectly able to do on our own, such as banking.

A mandate can only take effect after a representative of the court decides you are no longer able to care for yourself or manage your own affairs. This is called the homologation of a mandate. The judge or clerk will study reports of both a physician and a social worker’s psycho-social evaluation before arriving at a decision, and may also listen to what you have to say. This means that as long as you are capable, your mandate will not be put into place.

I am often called upon to provide these psycho-social reports for the homologation of a mandate. At times the situation is urgent and the lawyer will take the proper steps to speed up the process. In general, the homologation of a mandate could take a few months.

In order to protect yourself for a possible time when you are not able to protect yourself, a mandate is strongly advisable. I have a mandate and encourage my family and friends to do the same. My daughter often reminds me that should I become incapacitated she will be making the decisions regarding my care. It is a gentle reminder, or not so gentle depending on the day, that I had better be nice to her. As the bumper sticker that I often see on cars reads: “Be nice to your children, they will be choosing your nursing home.”

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Bonnie Sandler

Residential Real Estate Broker, Housing Consultant for Seniors

514 497-3775