La Cible

Août 2018

La Cible, magazine officiel de l’IQPF, est destinée aux planificateurs financiers et leur permet d’obtenir des unités de formation continue (UFC). Chaque numéro aborde une étude de cas touchant les différents domaines de la planification financière.

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24 lacible | Août 2018 Protection Mandate This type of contract is more restrictive than a general power of attorney. It is not a private contract between two people, since the law requires the intervention of a third party, the court, which must determine whether the person is fit to exercise their own civil rights. This demands that conclusive proof of total or almost total incapacity be presented to the court by recognized professionals. The mandatary who is acting under the terms of a general power of attorney continues to have full administrative rights over the property during the interim period. It is not uncommon for the senior's assets to be seriously compromised b e fo re t h e l eve l o f i n c a p a c i t y re q u i re d to homologate the protection mandate is attained. Even if Maxime also became a mandatary during the proceedings, Anita could continue to use the unrevoked general and bank powers of attorney. When the homologation is imminent, the court can render any interim order it deems necessary to protect the adult in question. If Anita continues to empty Clément's accounts and the other parties do not take action, the public curator can intervene on request, but this process also takes time. Curatorship, Tutorship and Advisorship to a Person of Full Age Each of these regimes has been established to manage different levels of incapacity on the part of a protected adult. A curator or tutor to a person of full age is appointed to represent them and an advisor is appointed to assist them. A curator or tutor to a person of full age is responsible for their custody and maintenance, as well as their moral and material well- being, taking into account their needs and faculties. A curator is appointed for an adult who is totally and permanently unfit to carry out their own care and administer their property. Unlike the public curator, which has only the simple administration of the property of others, a curator to a person of full age has the power of full administration, with some restrictions, such as the obligation to make presumed sound investments. A tutor is appointed for an adult when it has been determined that their incapacity with regard to their care and the administration of their property is partial and temporary. A tutor exercises simple administration of the property of others. An advisor is appointed for an adult who is generally capable of their own care and the administration of their assets but who needs assistance or advice. An advisor does not administer the person's property and is not responsible for their care but must intervene in actions where the person requires assistance. An application must be made to the courts to request the opening of a protective regime. The request can be made by the adult in question, their spouse, a family member or an "interested" person, including a mandatary designated by the adult or the public curator. In all these cases, the adult must submit to a medical and psychosocial assessment that the court must consider. The protective regime comes to an end if the court pronounces a ruling to this effect or if the protected adult dies. Trusts The creation of a lifetime trust (or asset protection trust) offers certain benefits for the administration and protection of an adult's property. The settlor must be fit to exercise their civil rights when they transfer their property to the "patrimony by appropriation." Acceptance of the role of trustee seals the creation of the trust, making the property transferred to it no longer part of the settlor's patrimony and placing it under the administration of the trustees, who assume the power of full administration of the property of others. The trustees can be individuals or corporations authorized by the law. The settlor and the beneficiaries of the trust can also serve as trustees jointly with an independent trustee. From a tax perspective, the transfer of property to a trust implies disposition and, consequently, the realization of latent taxable gains in the year of transfer. Luckily, the Income Tax Act (ITA) provides an exception to this rule for an "alter ego trust" or a "joint spousal or common-law partner trust" created for someone 65 or over. It is possible to transfer assets to such a trust without triggering the immediate taxation of accrued gains. These trusts solve the problem of administering capital assets such as the principal residence, the cottage, rental properties, shares of private corporations and non-registered investment portfolios, but they are of no use for registered assets such as

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