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2nd Session, 40th Legislature

This version is based on the printed bill that was distributed in the Legislature after First Reading.   It is not the official version.   If accuracy is critical, you can obtain a copy of the printed bill from Statutory Publications or view the online bilingual version (PDF).

Bill 36

THE PUBLIC GUARDIAN AND TRUSTEE ACT


Table of Contents Bilingual version (PDF) Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

DEFINITIONS

Definitions

1           The following definitions apply in this Act.

"committee" means a committee appointed under The Mental Health Act. (« curateur »)

"common fund" means a common fund referred to in subsection 22(1). (« fonds commun »)

"court" means the Court of Queen's Bench of Manitoba. (« tribunal »)

"financial institution" means a bank, credit union, trust company or loan corporation. (« établissement financier »)

"incapable" means mentally incapable. (« incapable »)

"minister" means the Minister of Justice. (« ministre »)

"prescribed" means prescribed by regulation.

"property" means real or personal property and includes money. (« bien »)

"Public Guardian and Trustee" means the person appointed by the Lieutenant Governor in Council under section 3 to be the Public Guardian and Trustee. (« tuteur et curateur public »)

"regional health authority" means a regional health authority established or continued under The Regional Health Authorities Act. (« office régional de la santé »)

"substitute decision maker" and "substitute decision maker for property" have the same meaning as defined in The Vulnerable Persons Living with a Mental Disability Act. (« subrogé » et « subrogé à l'égard des biens »)

PART 2

THE PUBLIC GUARDIAN AND TRUSTEE

Corporation sole continued

2            The Public Trustee of Manitoba is continued as a corporation sole under the name "Public Guardian and Trustee".

Appointment of Public Guardian and Trustee

3           The Lieutenant Governor in Council may appoint as Public Guardian and Trustee a person who is a practising member of The Law Society of Manitoba in good standing.

Employees may be appointed

4           Employees required to carry out the functions of the Public Guardian and Trustee may be appointed in accordance with The Civil Service Act.

PART 3

FUNCTIONS OF

THE PUBLIC GUARDIAN AND TRUSTEE

DIVISION 1

GENERAL

Ways in which the Public Guardian and Trustee may act

5(1)        The Public Guardian and Trustee may act

(a) as a personal representative of an estate, including as an executor under a will or an administrator of an estate;

(b) as a trustee if the Public Guardian and Trustee agrees to act as a trustee or is appointed as a trustee

(i) in a will, settlement or other instrument creating a trust,

(ii) by the court,

(iii) by an Act, or

(iv) by an agreement entered into by the Public Guardian and Trustee;

(c) as attorney of a person in accordance with the terms of the power of attorney;

(d) subject to subsection 6(1), as the litigation guardian for an incapable adult or for a minor;

(e) subject to subsections 6(2) and (3), as the litigation administrator for an estate of a deceased person;

(f) as a guardian for property, including as a guardian of the estate appointed under The Infants' Estates Act;

(g) as committee or substitute decision maker; and

(h) in any other capacity in which the Public Guardian and Trustee is authorized or appointed to act under this or any other Act or by court order.

Additional ways in which the Public Guardian and Trustee may act

5(2)        The Public Guardian and Trustee may also

(a) represent the interests of a minor in a court proceeding;

(b) protect the property or estate of one or more minors or one or more classes of unborn persons;

(c) represent an incapable adult or minor who has no other legal representative;

(d) make inquiries on behalf of the estate of a deceased person; and

(e) at the request of the court, perform any function that is similar to a function provided for in this section.

Public Guardian and Trustee may agree to act

5(3)        The Public Guardian and Trustee may, by agreement, agree to perform any function that is similar to a function provided for in this section.

Public Guardian and Trustee as trustee

5(4)        Except as otherwise expressly provided by this Act, the Public Guardian and Trustee has all the powers and is subject to all the duties and obligations of a trustee under The Trustee Act or at common law or in equity.

Public Guardian and Trustee's consent required to act as joint trustee

5(5)        Despite any other provision in this Act, the Public Guardian and Trustee may be appointed as a joint trustee only with his or her consent.

Public Guardian and Trustee not required to act

5(6)        Except if authorized or appointed to act by court order, the Public Guardian and Trustee is not required to act or accept an appointment only because he or she is empowered or authorized to do so.

When Public Guardian and Trustee may not act as litigation guardian

6(1)        The Public Guardian and Trustee may not act as the litigation guardian for an incapable adult or for a minor if

(a) another person is acting as the litigation guardian in accordance with the Queen's Bench Rules; or

(b) the adult or minor has retained and instructed counsel when permitted to do so under an Act.

When Public Guardian and Trustee may be appointed litigation administrator

6(2)        The court may appoint the Public Guardian and Trustee as the litigation administrator of a deceased person's estate if

(a) there is no executor, beneficiary, heir or other appropriate person who is willing and suitable to act; and

(b) the Public Guardian and Trustee is provided with an opportunity, before being appointed, to make representations to the court with respect to the appointment.

Public Guardian and Trustee not to oppose application

6(3)        When

(a) the Public Guardian and Trustee has been appointed as the litigation administrator of a deceased person's estate under subsection (2); and

(b) all persons with an interest in the estate are capable adults and they

(i) give their consent to the appointment of one or more appropriate persons who are willing and suitable to act as the personal representative in place of the Public Guardian and Trustee, and

(ii) bring an application to remove the Public Guardian and Trustee as the litigation administrator;

the Public Guardian and Trustee must not oppose that application.

DIVISION 2

ESTATES OF DECEASED PERSONS

Public Guardian and Trustee may administer estate

7(1)        When a deceased person leaves property in Manitoba and a grant of probate or letters of administration of the estate have not been issued in Manitoba, the court may appoint the Public Guardian and Trustee as administrator of the estate on the Public Guardian and Trustee's application.

When application may be made

7(2)        Unless the court orders otherwise, an application under this section may not be made until

(a) 120 days after the date of death, if the deceased person left a will; or

(b) 30 days after the date of death, if the deceased person did not leave a will.

Public Guardian and Trustee may notify others

7(3)        The Public Guardian and Trustee may notify any person he or she considers appropriate about an application under this section.

Renunciation not required

7(4)        The Public Guardian and Trustee is not required to obtain a renunciation from any person who would be entitled to a grant of probate or letters of administration of the estate in priority to the Public Guardian and Trustee.

When this section applies

7(5)        This section applies despite any other enactment.

Revoking the grant

8(1)        On application, the court may revoke the letters of administration of the estate granted to the Public Guardian and Trustee under subsection 7(1) and grant probate or letters of administration to another person if the court is satisfied that

(a) the other person is eligible to receive the grant; and

(b) it would be appropriate to do so.

Public Guardian and Trustee not to oppose application

8(2)        If all persons with an interest in the estate are capable adults and give their consent to the application under subsection (1) and the conditions in clauses (1)(a) and (b) are met, the Public Guardian and Trustee must not oppose the application.

Notice

8(3)        Notice of the application must be served on the Public Guardian and Trustee at least 10 days before the application is heard.

Public Guardian and Trustee as executor or administrator of estate

9           When

(a) the Public Guardian and Trustee acts for a person as committee, attorney under a power of attorney or trustee; and

(b) that person dies leaving an estate valued at more than the prescribed amount;

the Public Guardian and Trustee has all the powers of an executor or administrator of the deceased person's estate (other than the power to distribute the estate) until the Public Guardian and Trustee is given written notice of a grant of probate or letters of administration of the estate.

Administration of small estates

10(1)       When a person for whom the Public Guardian and Trustee acted as committee, attorney under a power of attorney or trustee dies leaving an estate valued at or less than the prescribed amount, and

(a) probate of the will or administration of the estate has not been granted in Manitoba; and

(b) administration of the estate under section 47 of The Court of Queen's Bench Surrogate Practice Act has not been ordered;

the Public Guardian and Trustee may file a notice of administration of the estate with the court registrar. As of the filing date of the notice, the Public Guardian and Trustee has the powers and duties of an administrator of a deceased person's estate appointed under section 47 of The Court of Queen's Bench Surrogate Practice Act and may administer the estate.

Evidence of Public Guardian and Trustee's administration

10(2)       A statement in a lease, mortgage, conveyance or other document that the Public Guardian and Trustee is the administrator of the estate under this section is evidence of the fact stated.

No fee is payable

10(3)       No fee is payable for filing the notice of administration of the estate.

Minimal property left

11          When a person dies leaving property with a value at or less than the prescribed amount, instead of filing a notice of administration in the circumstances set out in section 10, the Public Guardian and Trustee may, without obtaining a grant of probate, letters of administration or an administration order under section 47 of The Court of Queen's Bench Surrogate Practice Act,

(a) give or distribute personal articles to members of the deceased person's family;

(b) sell any other property and apply the proceeds toward payment of the deceased person's debts and funeral expenses; and

(c) distribute the remaining proceeds among the deceased person's next of kin or, if applicable, the beneficiary or beneficiaries under the will or, if there is no next of kin, or if none can be conveniently found, paying over the balance to the Minister of Finance to be credited to the Consolidated Fund.

Costs recoverable from estate

12          The cost to the Public Guardian and Trustee of administering and otherwise dealing with the property under section 10 or 11, including fees and disbursements, is recoverable from the estate and is a first charge against the estate's property.

Public Guardian and Trustee deemed to be executor or administrator during committeeship

13          If

(a) the Public Guardian and Trustee is appointed committee for a person; and

(b) that person was an executor or administrator of a deceased person's estate before the Public Guardian and Trustee was appointed committee;

the Public Guardian and Trustee is deemed to be the executor or administrator of that estate during the committeeship, unless the court appoints another executor or administrator.

DIVISION 3

MINORS

Settlement on behalf of minor

14(1)       If the litigation guardian for a minor has agreed on the minor's behalf to settlement terms for a claim or action, the litigation guardian, or the person against whom the claim or action is made or brought, must apply to the court for an order confirming the settlement.

Who must be served

14(2)       The party who applies to the court for an order confirming the settlement must, at least 10 days before the hearing, serve a notice of application or motion, as the case may be, on

(a) the Public Guardian and Trustee, unless it is the Public Guardian and Trustee who is applying for the order; and

(b) the opposing party.

Order binding

14(3)       An order made by the court confirming the settlement is binding on the minor.

Payment of settlement proceeds

14(4)       The court may order that the minor's settlement proceeds be paid to any person that the court considers appropriate, including

(a) the Public Guardian and Trustee;

(b) another trustee; or

(c) the guardian of the minor's estate to be held in trust until the minor reaches the age of majority.

Public Guardian and Trustee may appeal

14(5)       On the minor's behalf, the Public Guardian and Trustee has a right of appeal against an order.

Public Guardian and Trustee's costs

14(6)       The court may award costs to the Public Guardian and Trustee on a solicitor-client basis to be paid out of the minor's estate or by any other party to the proceeding.

Public Guardian and Trustee holds property in trust for minor

15(1)       This section applies with respect to a minor for whom the Public Guardian and Trustee holds property in trust.

Instrument prevails

15(2)       If the property is held under a will or trust, the will or the document creating the trust prevails.

Using property for minor's benefit

15(3)       Despite sections 29 and 30 of The Trustee Act, the Public Guardian and Trustee may, if the Public Guardian and Trustee is of the opinion that it would be in the minor's best interest to do so,

(a) use all or any portion of the property held by the Public Guardian and Trustee for the minor's benefit; or

(b) transfer property to a parent or guardian but only if the value of the entire property held by the Public Guardian and Trustee does not exceed the prescribed amount.

Converting property

15(4)       The Public Guardian and Trustee may convert all or any portion of the property into money, by sale or otherwise, in order to administer the property or take any action referred to in subsection (3).

Acknowledgment of responsibility

15(5)       Before transferring the property under clause (3)(b), the Public Guardian and Trustee must obtain from the parent or guardian an acknowledgement of responsibility for the property held in trust.

Public Guardian and Trustee's responsibility discharged

15(6)       If property is used or transferred to the minor's parent or guardian in accordance with this section, the Public Guardian and Trustee's obligation to the minor in respect of that property is discharged.

Parent or guardian holds property in trust

15(7)       A parent or guardian to whom property is transferred under clause (3)(b) holds the property in trust for the minor and may pay out that property only for the minor's benefit.

Application to court

15(8)       If the Public Guardian and Trustee declines to act under subsection (3), the court, on application, may direct the Public Guardian and Trustee to take any action referred to in subsection (3) that, in the court's opinion, is in the minor's best interest.

Court order to transfer property to another jurisdiction

16(1)       On application, if the court is of the opinion that

(a) an equivalent entity is willing to accept property that is held in trust by the Public Guardian and Trustee for a minor; and

(b) it would be in the minor's best interest to do so;

the court may, by order,

(c) direct the Public Guardian and Trustee to transfer the property to the equivalent entity;

(d) approve the Public Guardian and Trustee's accounts and discharge the Public Guardian and Trustee from his or her duties under the trust; and

(e) impose any condition or give any direction that the court considers appropriate.

Meaning of "equivalent entity"

16(2)       In this section, "equivalent entity" means a person, office or body that is situated in a jurisdiction outside Manitoba and has functions under that jurisdiction's laws relating to the protection of a minor's property that, in the court's opinion, are similar to the functions of the Public Guardian and Trustee under the laws of Manitoba.

DIVISION 4

MISCELLANEOUS MATTERS

Public Guardian and Trustee's priority for administration in certain cases

17          Despite any other enactment, when

(a) a deceased person leaves property in Manitoba;

(b) the Public Guardian and Trustee is acting for a minor or as committee or substitute decision maker; and

(c) the minor or person for whom the Public Guardian and Trustee is acting has an interest in the deceased person's estate;

the Public Guardian and Trustee has the same priority to apply for letters of administration of the deceased person's estate that the minor or person for whom the Public Guardian and Trustee acts would have if he or she were of the age of majority or a capable adult.

Registered owner of land or interest in land

18(1)       This section applies when

(a) the Public Guardian and Trustee is acting as the litigation guardian of a minor, committee or substitute decision maker for property; and

(b) the minor or person for whom the Public Guardian and Trustee is acting is the registered owner of land or an interest in land.

Notice to be submitted

18(2)       The Public Guardian and Trustee may submit for registration in the appropriate land titles office a notice prohibiting any subsequent filing or registration or other dealing in the land titles office in respect of that land or interest unless it is stated to be subject to that notice.

Other instruments, etc., subject to notice

18(3)       When a notice is registered under subsection (2), the district registrar must not accept for registration any instrument or other document in respect of the affected land unless that instrument or document states that the registration is subject to that notice.

Registered notice may be discharged

18(4)       The Public Guardian and Trustee may submit to the district registrar a discharge of the registered notice.

Notice or discharge requirements

18(5)       A notice or discharge under this section must

(a) be in a form acceptable to the district registrar; and

(b) be signed by the Public Guardian and Trustee.

Requirement to provide information

19(1)       The Public Guardian and Trustee may require a person, public body, trustee or other organization or entity to provide any personal information or personal health information in their custody or under their control that the Public Guardian and Trustee considers necessary to properly assess or carry out his or her duties, responsibilities and powers under this Act.

Duty to comply

19(2)       A person, public body, trustee or other organization or entity required to provide personal information or personal health information to the Public Guardian and Trustee under subsection (1) must do so.

Definitions

19(3)       The following definitions apply in this section.

"personal health information" and "trustee" have the same meaning as in The Personal Health Information Act. (« dépositaire » et « renseignements médicaux personnels »)

"personal information" and "public body" have the same meaning as in The Freedom of Information and Protection of Privacy Act. (« organisme public » et « renseignements personnels »)

Delegation of authority

20          The Public Guardian and Trustee may, in writing, authorize an employee or class of employees of a government department, government agency or regional health authority, or any person that the Public Guardian and Trustee considers to be appropriate, to perform or carry out any function that may be specified either generally or specifically in the authorization that the Public Guardian and Trustee is authorized to perform or carry out under this or any other Act.

Power to make advances

21(1)       For the purpose of preserving or protecting an asset of a person's estate or trust that is administered by the Public Guardian and Trustee, the Public Guardian and Trustee may make a short-term advance to the estate or person.

Priority over unsecured creditors

21(2)       When an advance is made to a person under subsection (1), the Public Guardian and Trustee has a lien against the assets of the person's estate or trust for the repayment of the advance. The lien has priority over all claims of unsecured creditors of the estate or trust, whether made before or after the date of the advance by the Public Guardian and Trustee.

PART 4

INVESTMENTS

Common fund established

22(1)       The Public Guardian and Trustee may establish and maintain one or more common funds for the investment of property held by the Public Guardian and Trustee.

Property may be converted and paid into common fund

22(2)       Property received by the Public Guardian and Trustee on behalf of an estate or person may be converted and paid into a common fund.

Exception

22(3)       Subsection (2) does not apply to property that is the subject of an express trust or direction regarding its investment.

Fees and expenses of Public Guardian and Trustee

22(4)       The Public Guardian and Trustee may charge and deduct fair and reasonable fees and expenses for the operation and maintenance of a common fund from the income earned by the fund.

Allotting income

22(5)       After making allowances for any premiums or discounts and for any charges properly deducted under subsection (4), the income earned by a common fund

(a) is to be calculated as interest earned on the closing daily balances in each of the accounts that form the common fund; and

(b) is to be credited to those accounts at least once every six months.

Investment with Minister of Finance

23          The Public Guardian and Trustee may invest property held in a common fund with the Minister of Finance on the terms and conditions that the Public Guardian and Trustee considers appropriate.

Investment in common

24(1)       An investment of property in a common fund

(a) is not made on account of or for the benefit of a particular estate or person; and

(b) does not belong to a particular estate or person.

Interests in common

24(2)       The interest of an estate or person entitled to a share or interest in a common fund is in common with the interest of all other estates and persons entitled to a share or interest in the common fund.

Separate investments

25          The Public Guardian and Trustee may make investments separate from the common fund in the name of an estate or person for whom the Public Guardian and Trustee holds money if

(a) the money is subject to an express trust or direction for investment; or

(b) the Public Guardian and Trustee is of the opinion that it is in the best interest of the estate or person to do so.

Deposits pending investment

26          Until money is invested in a common fund, the Public Guardian and Trustee may deposit the money with

(a) a financial institution;

(b) any other corporation empowered under the laws of Manitoba to accept money for deposit and that has been approved for that purpose by the Lieutenant Governor in Council; or

(c) the Minister of Finance.

PART 5

SECURITY, COMPENSATION,

FEES, COSTS AND LIABILITY

Security not required

27          Despite any other enactment, the Public Guardian and Trustee is not required to give security for the due performance of the Public Guardian and Trustee as an administrator, executor or trustee or under a court order or under this or any other Act.

Public Guardian and Trustee may charge fee as compensation

28          The Public Guardian and Trustee is entitled to charge a fee as compensation for administering an estate, trust or other property.

Fee charged for employee services performed for a specific estate

29          In addition to the fee chargeable under section 28, the Public Guardian and Trustee may charge a fee for a specific service performed in respect of a specific estate or trust by an employee of the Public Guardian and Trustee (such as legal and inspection services) if such a fee would be allowed to be charged by a private trustee in respect of that estate or trust.

Fees may be reduced or waived

30          The Public Guardian and Trustee may reduce the amount of any fee chargeable in respect of a specific estate or waive its payment.

Interim deductions

31          The Public Guardian and Trustee may, from time to time, deduct compensation, fees, expenses and disbursements from and out of an estate or trust for work completed and expenses and disbursements incurred in administering it.

Public Guardian and Trustee may be awarded costs

32(1)       The court may, by order,

(a) award costs to the Public Guardian and Trustee in any action, proceeding or other matter taken by or against or involving the Public Guardian and Trustee in which the court considers the Public Guardian and Trustee's attendance to be necessary or advisable; and

(b) direct the costs be paid to the Public Guardian and Trustee on a solicitor-client basis.

Public Guardian and Trustee not liable for costs

32(2)       The court must not award costs against the Public Guardian and Trustee, if

(a) an application, claim or defence conducted by the Public Guardian and Trustee as the litigation guardian or litigation administrator is not successful; and

(b) the court finds that the Public Guardian and Trustee acted reasonably and in good faith.

Fees — application appointing Public Guardian and Trustee

33          A person who brings an application to appoint the Public Guardian and Trustee as the litigation guardian must pay the costs and disbursements incurred by the Public Guardian and Trustee resulting from the appointment.

Money required to discharge liability

34          Any money required to discharge a liability that the Public Guardian and Trustee, if he or she were a private trustee, would be personally liable to discharge is to be paid out of the Consolidated Fund.

PART 6

GENERAL PROVISIONS

Audit

35(1)       Each fiscal year, the Auditor General must audit the records, accounts and financial statements of the Public Guardian and Trustee and incorporate the findings in the report on the Public Accounts of the government.

Annual audit of estates or trusts

35(2)       Each fiscal year, the Auditor General may audit any accounts, records and financial statements relating to selected estates or trusts.

Tabling reports in the Assembly

35(3)       The Minister of Finance must table each auditor's report received under this section in the Assembly within 15 days after receiving it if the Assembly is sitting or, if it is not, within 15 days after the next sitting begins.

Annual report

36(1)       Within 60 days after receiving the Auditor General's report on the audit of the records, accounts and financial statements of the Public Guardian and Trustee for a fiscal year, the Public Guardian and Trustee must make a report on the performance of the functions of the Public Guardian and Trustee to the minister for that year.

Requirements for report

36(2)       The report must contain an audited balance sheet and an audited statement of receipts and expenditures for the fiscal year.

Tabling report in the Assembly

36(3)       The minister must table a copy of the report in the Assembly within 15 days after receiving it if the Assembly is sitting or, if it is not, within 15 days after the next sitting begins.

Protection from liability

37          No action or proceeding may be brought against the Public Guardian and Trustee or any other person acting under the authority of this Act for anything done or omitted to be done, in good faith, in the exercise or intended exercise of a power, duty or function under this Act.

Regulations

38(1)       The Lieutenant Governor in Council may make regulations

(a) respecting the records, accounts and financial statements to be kept by the Public Guardian and Trustee;

(b) respecting the calculation and allocation of interest when funds of two or more estates or trusts are commingled;

(c) prescribing fees (other than fees mentioned in sections 28 and 29) to be charged by the Public Guardian and Trustee or a scale of those fees or a manner in which those fees are to be calculated;

(d) prescribing anything referred to in this Act as being prescribed;

(e) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purpose of this Act.

Regulation may establish classes

38(2)       A regulation made under this Act may be general or particular in its application and may apply to one or more classes of persons, estates or trusts.

PART 7

SUCCESSOR AND TRANSITIONAL

PROVISIONS AND

RELATED AND CONSEQUENTIAL

AMENDMENTS

Appointment continued

39          The person who immediately before the coming into force of this Act was appointed the Public Trustee under The Public Trustee Act continues to be the Public Guardian and Trustee as if that person had been appointed under this Act on the same terms and conditions.

Vesting of property

40          Property vested in the Public Trustee vests in the Public Guardian and Trustee.

Proceedings, etc., continued

41          The Public Guardian and Trustee may continue any action, proceeding or other matter that was commenced by the Public Trustee but not finally disposed of before the coming into force of this section.

References

42          A reference to the Public Trustee in an agreement, contract, licence, order or other document made or issued before the coming into force of this section is deemed to be a reference to the Public Guardian and Trustee.

Common fund continued

43          The common fund established and maintained under The Public Trustee Act is continued under this Act.

C.C.S.M. c. C290 amended

44          Sections 56 and 57 of The Court of Queen's Bench Surrogate Practice Act are repealed.

C.C.S.M. c. M110 amended

45(1)       The Mental Health Act is amended by this section.

45(2)       Subsection 61(5) is amended by striking out "section 62" and substituting "section 62 or 62.1".

45(3)       The following is added after section 62:

Public Guardian and Trustee may apply to court to cancel order

62.1(1)     If the Public Guardian and Trustee has been appointed as the committee under section 61, the Public Guardian and Trustee may apply to the court for an order

(a) cancelling the order; or

(b) appointing a person other than the Public Guardian and Trustee as the committee under Part 9.

Notice to the director

62.1(2)     Notice of the application must be served on the director at least 10 days before the application is heard.

Order

62.1(3)     On hearing the application, the court may make any order under this Act that it considers appropriate.

45(4)       The following is added after subsection 67(5):

More than one attorney

67(5.1)     For the purpose of subclause (5)(b)(i), if the power of attorney names more than one attorney as joint attorneys or alternate attorneys, and the Public Trustee and Guardian wishes to terminate the power with respect to one of the attorneys ("former attorney") and the other attorney wishes to act under the power, the other attorney may do so and the power with respect to the former attorney is terminated.

45(5)       The following is added after subsection 67(8):

Objection, application to court

67(9)       A person to whom a notice is given under subsection (5) may object to the Public Guardian and Trustee's decision under clause (3)(b) if the person does so in writing and within 30 days after receiving the notice (which is deemed to have been received five days after it has been sent if sent by regular mail). The Public Guardian and Trustee must then apply to the court for an order seeking direction as to whether the person's best interests would be better served by the Public Guardian and Trustee continuing to act as the committee or by the attorney acting under the valid enduring power of attorney.

45(6)       The centred heading before section 107 and sections 107 to 110 are repealed.

45(7)       Subsection 111(1) is amended by striking out "Lieutenant-Governor in Council" and substituting "the court, upon application by the Public Guardian and Trustee,".

Consequential amendments

46          The Acts listed in the Schedule are amended as described in the Schedule.

PART 8

REPEAL, C.C.S.M. REFERENCE

AND COMING INTO FORCE

Repeal

47          The Public Trustee Act, R.S.M. 1987, c. P275, is repealed.

C.C.S.M. reference

48          This Act may be referred to as chapter P205 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

49          This Act comes into force on a day to be fixed by proclamation.

SCHEDULE

The following Acts are amended in the provisions listed opposite to the name of the Act:

(a) by striking out "The Public Trustee Act" and substituting "The Public Guardian and Trustee Act":

Name of Act Provision(s) amended
The Mental Health Act 1 — "Public Trustee"
The Powers of Attorney Act 1(1) — "Public Trustee"

(b) by striking out "Public Trustee" wherever it occurs (including in the section heading) and substituting "Public Guardian and Trustee", with necessary grammatical changes:

Name of Act Provision(s) amended
The Condominium Act 15(3)(a)
15(4)
The Court of Queen's Bench Surrogate Practice Act 25(1)
43(3)(a)(ii) and (b)(iii)
55
The Dependants Relief Act 5
The Essential Services Act (Government and Child and Family Services) listing under Department of Justice in the Schedule to the Act
The Freedom of Information and Protection of Privacy Act 37(1)(l)
The Infants' Estates Act 4(2)(b)
6(2)(b)
7
10(3)
12
The Insurance Act 198
230(6)
The Insurance Amendment Act, S.M. 2012, c. 29
(unproclaimed)
198(1)
230.11(1)
The Law of Property Act 17.3(7)
The Limitation of Actions Act 7(4)
8(2)(b)(i) and (ii)
8(3)(a) and (b)
8(4) and (7)
The Mental Health Act 1 — "nearest relative"; "Public Trustee"
28(3)
40(4)(a) and (b)(iii)
41(1) and (2)
42(b) and (c)
43(2)
60(6)(a)
centred heading before section 61
61(1), (3), (5) and (7)
62(1)(b)
62(3) and (4)
centred heading before section 63
63 to 65
66(5)
67 to 69
71(4)
72(2)(c)
73
77(3)
82
85(2)
86(2)
101(2)(b)
centred heading for Part 10
106
111(2)
112
113(1)
125(1)(j)
The Mines and Minerals Act 225
228(1)
229(1)
The Municipal Board Act 38(3)
The Powers of Attorney Act 1(1) — "nearest relative"; "Public Trustee"
7(2)
7(3)(d)
12
13(b)
24(2)
24(3)(c)
The Manitoba Public Insurance Corporation Act 62
The Real Property Act 172(2)
The Trustee Act 87(6)
The Vulnerable Persons Living with a Mental Disability Act 1(1) — "committee"
32(b)
54(1)(b)
60(2)
89(1)(c)
92(5)
93(2)
97(a)
111
113(2)
152
The Wills Act 24(2)

Explanatory Note

This Bill replaces the existing Public Trustee Act. Key changes include the following:

  • The name "Public Trustee" is changed to "Public Guardian and Trustee".
  • The Public Guardian and Trustee's functions are clarified and listed. They include acting as a trustee, estate administrator, litigation guardian, substitute decision maker and committee.
  • The Public Guardian and Trustee's responsibilities as a trustee for minors' trusts are updated to reflect current practice and to reduce delay and expense to the trusts. The Public Guardian and Trustee may encroach on capital in certain circumstances, pay out small trusts to a parent or guardian, and, if the minor resides outside Manitoba, transfer the trust to an entity that is similar to Manitoba's Public Guardian and Trustee but is located where the minor resides.

h The Public Guardian and Trustee's responsibilities as an administrator of a deceased person's estate are also updated in order to reduce delay and expense to the estate.

  • Provisions in The Mental Health Act relating to the administration of estates of deceased persons for whom the Public Guardian and Trustee acted as committee are moved into the new Act.
  • Under the current Act, costs may not be awarded against the Public Trustee when it represents a defendant without success, but has acted reasonably and in good faith. In the new Act, this protection is extended to cases where the Public Guardian and Trustee represents an applicant or plaintiff.
  • The Act also provides for liability protection and permits the Public Guardian and Trustee to obtain information to properly assess and carry out his or her functions.
  • The rules for investing property held in trust by the Public Guardian and Trustee are revised to reflect current practice.

Amendments are made to The Mental Health Act to improve protection for a mentally incapable person where the person granted an enduring power of attorney before the Public Guardian and Trustee was appointed committee. In certain circumstances, the Public Guardian and Trustee must apply to the court for direction as to the best interests of that person. As well, amendments are made to allow a second named attorney to carry on under a power of attorney when the authority of the first attorney is terminated. Another amendment allows the Public Guardian and Trustee to apply to court to be removed or replaced as committee when it is in the best interests of the person in question to do so.

Provisions in The Court of Queen's Bench Surrogate Practice Act that relate to the administration of estates by the Public Trustee and are no longer used, or are provided for elsewhere, are repealed.

The Bill also includes consequential amendments to several other Manitoba Acts because of the name change to "Public Guardian and Trustee".