What to Do When a Parent Becomes Incapacitated

Update: 2025-09-30

Description

This episode explores why families must start planning for incapacity before a crisis hits. Scott and Nada walk through the legal consequences of waiting too long — especially when it comes to selling a home, managing finances, or accessing medical records for an incapacitated loved one.

Legal inaction can lead to delays, stress, and costly consequences during already emotional moments.

📝 Wills, Mandates & Power of Attorney: What’s the Difference?

Nada explains the major distinctions between the three documents:

Will: Comes into effect after death. Outlines asset distribution and guardianship for minors.
Power of Attorney: Grants someone the authority to manage your finances while you're still of sound mind.
Mandate of Protection: Activates only after incapacity and includes authority over both financial and medical decisions.

Pro Tip: Having a will doesn't protect you during incapacity. You need a separate mandate.

🧠 What Is Incapacity and How Is It Declared?

Nada breaks down the definition of incapacity, which often involves cognitive decline (e.g., Alzheimer’s or dementia).

To officially declare someone incapacitated, two assessments are required:

A medical evaluation from a doctor
A psychosocial report from a licensed social worker

Only after these can a mandate of protection be homologated and put into effect.

🔒 Homologation: The Step Everyone Misses

Homologation is the legal process of activating a mandate. Without it, even a valid mandate won't be accepted for selling a home or managing bank accounts.

Real estate impact:

If a parent is incapacitated and the mandate isn’t homologated, notaries will not sign off on a property sale — causing long delays.

⚠️ What Happens Without a Mandate?

If no mandate is in place, the court must intervene and assign a legal representative through a tutorship. This is a more complex, time-consuming process and requires:

Formation of a tutorship council (3 members + 2 substitutes)
Court approval for any financial transactions over $40,000
Additional reporting and verification steps

Result: More red tape, more stress, and longer delays.

👨‍👩‍👧‍👦 Who Should Be on Your Advisory Team?

Nada recommends building a trusted support network early. This may include:

A notary who specializes in mandates and homologations
A family doctor or geriatric physician
A social worker for assessments
A financial advisor or wealth manager
Your real estate broker
An accountant or estate lawyer

Best practice: Get everyone on the same page before a crisis occurs.

💡 Real-Life Examples & Lessons Learned

Scott shares personal and professional stories where lack of preparation led to:

Frozen bank accounts
Property sales blocked for over a year
Family members scrambling to establish tutorship
Loss of healthcare benefits due to inability to file taxes

Nada shares how even a simple mandate could have prevented these outcomes.

✅ Bottom Line: Plan Early, Plan Smart

Have open conversations with parents and loved ones while they are still of sound mind
Draft a will and mandate of protection
Homologate the mandate as soon as incapacity begins
Build a support team of professionals to help guide the process