This post was written by Diana Leopardi
Consider this question: would you carry an umbrella on a sunny day?
A Mandate in the event of incapacity is like carrying an umbrella on a sunny day, with no intention of using it but grateful to have the umbrella in the event it starts to rain. Think of your umbrella as your Mandate in the event of incapacity; you will be sheltered and protected from potentially coercive treatments or decisions on behalf of the state (government) and unintentionally from your friends and family who may or may not know your desired medical wishes. You may be wondering, what’s the big deal, I’ll just tell my friends and family what I want. That may be an option but known that in some jurisdictions, such as British Columbia, compulsory treatment will be administered if the person (being involuntarily detained) can not consent.
Now that I have your attention I will further explain.
The term Mandate is used in Quebec whereas Ontario will commonly refer to Guardianship with substitute decision making powers; ultimately, it is a protective legal document that appoints a substitute person to act and make decisions on one’s behalf. Over 50, 000 people living in Canada are under some type of protective care, guardianship or mandate; approximately 21, 000 in Quebec and 18, 000 in Ontario.
Traditionally speaking, most mandates in case of incapacity are generally sought for long term mandates and irreversible mental decline such as Alzheimer’s and/or Dementia mostly seen in aging populations. Through research, education and awareness, we now understand the important role of such protective documents when dealing with other types of mental health illnesses such as bi-polar disorder, schizophrenia or depression to name a few. All Canadians can benefit from this type of legal protection as everyone is directly or indirectly affected by mental illness in some way. In fact, 1 in 5 Canadians experience mental illness in their lives and this figure increases to 1 in 2 by the age of 40. Whether a person perceives themselves to be healthy, physically and mentally, is almost irrelevant since mental illness can occur at any moment’s notice, without warning and will not discriminate based on age.
The objective of having a mandate in the event of incapacity (temporary or permanent) is to formally dictate your wishes in the event you are not able to do so and appoint a spokesperson on your behalf. A mandate is generally comprised of two parts; the first part deals with managing the person’s property and the second part addresses the person’s medical concerns. A complete mandate would also include provisions for psychiatric advance directives as well as advanced medical directives for a more comprehensive understanding of the individual’s medical record, state of mind and desired treatment options. Protective legal documents can be prepared by legal professionals, usually notaries or lawyers, and are registered. Some provinces also offer forms that can be filled out by the concerned person themselves and registered with the health department such as RAMQ in Quebec.
While it may be beneficial to have proper legal documents prepared by a professional whereby all of a persons’ desires and wishes are stated in a single document, it is essential, at the very least, to have some sort of valid document to express your wishes in the event you can not do so. The takeaway is to plan for a rainy day while the sun is still out.
 Me Szigeti, Dhand, Law and Mental Health in Canada Cases and Materials, Toronto (Ontario) and Kamloops (British Columbia), Lexis Nexis, December 2022, page 104