Aging comes with many challenges, and one of the most difficult is losing the ability to make informed decisions. When a loved one is no longer capable of managing their finances, property, or personal care, families are often left scrambling. The process of taking over decision-making—through a legal step called homologation—can be overwhelming, especially when it's urgent.

What Is Mental Incapacity?

Mental incapacity happens when a person no longer understands the consequences of their decisions due to conditions like:

• Dementia (Alzheimer's, vascular dementia, Lewy body dementia, etc.)
• Stroke or brain injury
• Cognitive decline due to aging

At first, the signs may seem harmless—forgetting names, repeating questions, or confusion about time. Over time, these symptoms worsen, making it difficult for the person to pay bills, manage property, or even recognize loved ones.

If they haven't legally assigned someone to manage their affairs before reaching this stage, it can lead to major financial and legal headaches for the family.

The Difference Between a Power of Attorney and a Protection Mandate

These terms are often confused, but they serve different purposes:

Power of Attorney

• Used when a person is still mentally capable but needs someone to act on their behalf.
• Example: A snowbird asks their child to pay their property taxes while they're in Florida.
• The person can revoke it at any time.

Protection Mandate (formerly called a Mandate in Case of Incapacity)

• Signed when a person is still capable but is meant to take effect if they become incapacitated.
• Covers financial matters, medical decisions, and personal care.
• Unlike a power of attorney, it must be homologated by the courts before it becomes legally valid.

Key takeaway: A power of attorney is useful for convenience, but a protection mandate is crucial for long-term planning.

What Happens If There's No Mandate?

If someone becomes incapacitated and there's no mandate in place, the family must apply for a court-appointed protective regime. This process takes longer, is more complex, and involves more legal oversight. It's much easier to put a mandate in place ahead of time.

What Is Homologation, and Why Does It Matter?

Even if a protection mandate exists, it's not automatically valid. It must go through homologation, a legal process where the courts confirm that the person is truly incapable and that the mandate should take effect. 

Without homologation, a family member or spouse cannot legally sell a house, withdraw funds, or make medical decisions on behalf of the person.

 What Does the Homologation Process Look Like?

1. Consult a notary – Not all notaries handle homologations, so choose one with experience.
2. Obtain a doctor's evaluation – A doctor must confirm that the person is no longer capable.
3. Get a social worker's assessment – A social worker conducts interviews and provides a full report.
4. Submit the application to the court – A court clerk reviews the case and issues a judgment.

This process takes anywhere from 6 months to over a year, depending on court backlogs.

Why Timing Is Critical

Many families assume they can “wait and see” before starting homologation. The reality? Waiting too long can cause major financial and legal roadblocks.

Example:

• A family decides to sell their aging father's home to pay for private senior care.
• The father, who has dementia, still owns the property.
• They reach the notary's office, only to learn the sale cannot go through without a homologated mandate.
• The process takes months, delaying access to funds and creating unnecessary stress.

Don't wait until it's too late. If you suspect a loved one is losing their capacity to make decisions, start the homologation process as soon as possible.

How to Choose the Right Professionals

Homologation requires help from three key professionals:

• Notary – Must specialize in homologations and have experience navigating court procedures.
• Doctor – Any general physician can conduct an evaluation, but some may refer the person to a specialist.
• Social Worker – Plays a critical role in assessing the person's abilities and family dynamics.

Pro Tip: Ask about timelines upfront. Some professionals prioritize these cases, while others may take longer.

Common Family Challenges During the Process

• Homologation is not just a legal process—it's an emotional one. Families often deal with:
• Guilt – Taking away a loved one's independence is never easy.
• Disagreements – Siblings may not agree on what's best for their parent.Old conflicts resurfacing – 
• Unresolved family tensions often come up during this time.
• Caregiver burnout – Family members managing care often feel exhausted and overwhelmed.

Solution: Seek outside support. Organizations like the Alzheimer Society offer resources to help families navigate these challenges.

How to Prepare Before It's Too Late

If your loved one is still mentally capable, take these steps now:

✔ Meet with a notary – Get a protection mandate in place ASAP.
 ✔ Have an open conversation – Make sure family members understand their roles.
 ✔ Keep documents in a safe place – Ensure easy access when the time comes.
 ✔ Educate yourself on the process – Knowing what to expect reduces stress down the road.

Final Thoughts

Homologation is not something you want to handle in a crisis. By planning ahead, you can protect your loved one's dignity, assets, and well-being—while also avoiding unnecessary delays and legal hurdles.

If you're unsure where to start, consulting a notary or social worker who specializes in incapacity assessments is the best first step.