|This is an unofficial archived version of The Public Trustee Act|
as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. P275
The Public Trustee Act
|Table of Contents|
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The Lieutenant Governor in Council may appoint a member of the Bar of Manitoba of not less than five years standing to be the Public Trustee for the province.
The Public Trustee is a corporation sole under the name of "The Public Trustee of Manitoba" (hereinafter referred to as the "Public Trustee") with perpetual succession and an official seal, who may sue and be sued in his corporate name.
Such officers and employees as are necessary or may be required for the office of the Public Trustee and for the purposes of this Act may be appointed as provided in The Civil Service Act.
The Public Trustee is the official guardian in the province.
The Public Trustee, in the capacity of official guardian, is the next friend or guardian ad litem of every infant except where the infant has a next friend or guardian authorized to act for him in causes and matters.
The Public Trustee, as the next friend or guardian ad litem of an infant under subsection (2), is entitled to all medical reports and other confidential information relating to the infant.
The Public Trustee, in the capacity of official guardian, shall perform such additional duties as may be assigned to the Public Trustee by the rules of the Court of Queen's Bench or as may be directed by the Court of Queen's Bench from time to time.
Where an action is maintainable on behalf of an infant in respect of an accident from which injury or damage to the infant has resulted and the next friend or guardian of the infant, acting on his behalf, has agreed, either before or after the commencement of an action, on a settlement of the claim or action, the next friend or guardian or the person against whom the claim or action is made or brought shall, on 10 days notice to the opposite party and to the Public Trustee, apply by notice of motion or originating notice of motion, as the case may require, to a judge of the Court of Queen's Bench for an order confirming the settlement, and the order when made is binding on the infant.
The Public Trustee has a right of appeal against any order made by a judge of the Court of Queen's Bench under subsection (1).
Where the Public Trustee receives notice of a matter under subsection (1), the Court of Queen's Bench, or a judge thereof, may, if deemed proper, direct that the costs on a solicitor and client basis, of any proceedings made or taken by the Public Trustee in the matter or which it is necessary or expedient for him to attend in the matter be taxed and paid either out of the estate of the infant or by any other person who is a party to the proceedings.
Money or damages recovered in an action or proceedings in The Court of Queen's Bench respecting the claim of an infant, whether by judgment, verdict, settlement, compromise or payment into court, shall be dealt with as the court orders and shall not be paid to the infant or the next friend of the infant unless the court so directs.
Where there is no legal personal representative in Manitoba of the estate of a deceased person and representation of the estate is required
(a) in any action or proceeding or proposed action or proceeding in The Court of Queen's Bench; or
(b) in any proceeding pending, or about to be commenced, upon or in respect of a mortgage on land, an agreement for sale, a tax sale certificate or an application, transmission or caveat, under The Real Property Act;
the action may be brought against, or service in the action or proceeding in respect of the estate may be effectually made if made upon, the Public Trustee and the Public Trustee shall represent the estate and has the rights, authority and responsibility of an administrator pendente lite appointed by the Court of Queen's Bench.
Subject to the appropriate rules of court or regulations under The Real Property Act, other defendants and other causes of action may be joined in any action or proceedings against the Public Trustee under this section.
At the time of service of a statement of claim or other documents on the Public Trustee, the Public Trustee shall be paid the fee prescribed by the regulations, but where separate notices instituting proceedings in respect of two or more instruments under which there is common indebtedness are being served together upon the Public Trustee, only one fee is payable under this subsection.
For the purpose of this section, sale and foreclosure proceedings under a mortgage shall be deemed to be one proceeding.
The Public Trustee is the personal representative of the estate of the deceased for the purpose of any proceeding commenced under clause (l)(a), and upon being served under subsection (1) in respect of the proceeding and, when required by this section, paid his fee, shall make inquiries for the purpose of determining whether or not the estate has any interest in the proceeding or in the land affected and shall communicate a recommendation with regard thereto to every person appearing to be entitled under The Devolution of Estates Act or under the will of the deceased, as the case may be.
The communication required under subsection (5) shall be deemed to be sufficiently made if mailed in a post office within the province in an envelope postage prepaid and registered, addressed to the person entitled, at the address for the person last known to the Public Trustee.
A person effecting service on the Public Trustee under this section shall, upon request, give all information at his disposal concerning the estate of the deceased to the Public Trustee, and if there is default in this requirement, the Public Trustee may apply to and obtain an order from the Court of Queen's Bench staying the action or proceeding until such time as the information is given.
Where, under this section, an action or proceeding in the Court of Queen's Bench is brought against the Public Trustee or the Public Trustee is served with documents in respect of an action or proceeding in the Court of Queen's Bench, the Public Trustee is entitled to costs and the plaintiff shall pay those costs to the Public Trustee and may add them to his own.
The Court of Queen's Bench may pursuant to section 47 of The Court of Queen's Bench Surrogate Practice Act, appoint the Public Trustee to administer an estate under that section and when so appointed the Public Trustee shall administer the estate in accordance with the direction of the court and the provisions of that section.
Where the Public Trustee is
(a) the next friend or guardian ad litem of an infant; or
(b) the committee of a mentally disordered person;
and the infant or person, as the case may be, is the registered owner of land or an interest in land, the Public Trustee may file in the appropriate land titles office a notice prohibiting any subsequent filing or registration or dealing in the land titles office in respect of the land or interest unless the filing or registration or dealing, as the case may be, is expressed to be subject to the notice.
A notice filed under subsection (1) shall contain a description of the land or interest in land sought to be affected, shall be signed by the Public Trustee and shall otherwise be in a form approved by the district registrar of the land titles office in which it is filed.
Where a notice is filed in a land titles office under subsection (1), the district registrar of the land titles office shall not thereafter accept for filing or registration any instrument or other document in respect of the land or interest in land described in the notice unless the instrument or document is expressed to be subject to the notice.
The Public Trustee may at any time withdraw a notice filed in a land titles office under subsection (1) by filing a withdrawal of the notice in the same land titles office.
A withdrawal of notice filed under subsection (4) shall contain a description of the land or interest in land sought to be affected, shall be signed by the Public Trustee and shall otherwise be in a form approved by the district registrar of the land titles office in which it is filed.
Notwithstanding any provision in any other Act of the Legislature the Public Trustee
(a) shall be the person to whom payments under section 62 of The Manitoba Public Insurance Corporation Act shall be made; and
(b) may receive and dispose of moneys and other personal property pursuant to section 28 of The Fatality Inquiries Act.
Notwithstanding section 67 of The Mental Health Act, where the Public Trustee is acting as committee of the estate of a person described in subsection 80(1) of that Act, the Public Trustee may make payments out of the estate of that person for the maintenance or benefit of any other person dependent upon him.
The Public Trustee may be granted letters probate or letters of administration and, with his consent in writing, may be appointed trustee of any will or settlement or other instrument creating a trust or duty in the same manner as if he were a private trustee.
Except as otherwise expressly provided by this Act, the Public Trustee has all the powers and is subject to all the duties and obligations conferred and imposed upon a trustee under The Trustee Act or at common law or in equity; and without restricting the generality of the foregoing the Public Trustee, pending the investment of moneys in estates being administered by him, may deposit those moneys in a single account during such time as may be reasonable in the circumstances
(a) in any bank, trust company or credit union; or
(b) in any other corporation empowered under the law of the province to accept moneys for deposit and that has been approved for that purpose by the Lieutenant Governor in Council; or
(c) with the Minister of Finance.
The public trustee may establish and maintain one or more common funds for the investment of moneys in his hands.
Moneys in the hands of the public trustee, other than moneys that are subject to an express trust or direction for the investment thereof, may be invested by the public trustee in a common fund established and maintained under this section.
The moneys in a common fund established and maintained under this section shall be invested or loaned only in securities and on loans in or on which a trustee is authorized under The Trustee Act to invest or loan trust money.
The Public Trustee may, in his discretion, invest moneys in a common fund with the Minister of Finance on such terms and conditions as he may deem appropriate if the rates of interest payable by the Minister of Finance on the moneys so invested are not less than the rates generally payable by financial institutions and trust companies at the time the investment is made.
An investment of moneys in a common fund established and maintained under this section is not made on account of or for the benefit of a particular estate or person and does not belong to a particular estate or person and the interest of an estate or person entitled to a share or interest in a common fund established and maintained under this section is in common with the interest of all other estates and persons entitled to a share or interest in the common fund.
The public trustee may charge to and deduct from the income earned by a common fund fair and reasonable fees and expenses for the operation and maintenance of the common fund.
The income earned by a common fund, after making allowances for any premiums or discounts and for any charges properly deducted under subsection (6), shall be calculated as interest earned on the minimum monthly balances of moneys that form the common fund and shall be credited to the respective estates and persons entitled thereto on June 30 and December 31 in each year.
Notwithstanding any rule, practice or law requiring a bond or other security, it is not necessary for the Public Trustee to give any bond or other security for the due performance of his duty as executor, administrator, trustee, committee or in any other office to which he may be appointed by order of a court or may hold under any statute.
The Public Trustee may with the approval of the Lieutenant Governor in Council accept and administer any charitable or public trust.
The Public Trustee is entitled to and may claim such fees, charges and expenses for his care, pains, trouble and his time expended in administering an estate or trust as are or may be allowed to a private trustee; and he may collect those charges, fees and expenses from and out of the estate or trust being administered by him.
Notwithstanding this or any other Act, the Public Trustee may in connection with any estate or trust administered or managed by him make a reasonable charge for any service performed by a member of the staff of his office where the service is one for which a charge would be allowed as a disbursement against the estate or trust if performed by a person retained, engaged or employed to perform that service by a private trustee; and every such charge shall for the purpose of the estate or trust be deemed to be a disbursement.
The salaries of the Public Trustee and members of his office staff and all expenses incurred in the operation of the office of the Public Trustee shall be paid from the Consolidated Fund with moneys authorized by an Act of the Legislature to be so paid and applied.
All fees, charges and expenses claimed and collected by the Public Trustee in the administration of an estate or trust shall be paid into and form part of the Consolidated Fund.
All sums required to discharge any liability for a loss that the Public Trustee, if he were a private trustee, would be personally liable to discharge, shall be paid from the Consolidated Fund; and the Public Trustee or any member of his staff is not liable for any loss that would not have imposed liability upon a private trustee.
The Provincial Auditor shall audit annually the books and accounts of the Public Trustee and incorporate his findings in his report on The Public Accounts of the government.
The Public Trustee may in writing authorize any officer in the office of the Public Trustee to perform or carry out any act, duty or thing that may be specified either generally or specifically in the authorization, that the Public Trustee is authorized to perform or carry out under this or any other Act of the Legislature.
Without restricting the generality of subsection (1), the Public Trustee may in writing authorize any person, whether or not an officer in the office of the Public Trustee, to give any consent, specified either generally or specifically in the authorization, that may be required for the medical treatment of a ward of the Public Trustee.
Within 60 days after receiving the Provincial Auditor's report on his audit of the books and accounts of the Public Trustee for a fiscal year, the Public Trustee shall make to the Attorney-General a report on his operations on that fiscal year including an audited balance sheet and an audited statement of receipts and expenditures for the fiscal year and the Attorney-General shall lay a copy of the report before the Assembly forthwith if it is then in session and, if it is not then in session, within 15 days of the commencement of the next ensuing session.
For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations and orders as are ancillary thereto and are not inconsistent therewith; and every regulation or order made under, and in accordance with the authority granted by, this section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations and orders,
(a) respecting the books and accounts to be kept by the Public Trustee;
(b) for calculating and allocating interest where funds of two or more estates or trusts are commingled;
(c) prescribing forms for use under this Act;
(d) prescribing a tariff of fees and expenses to be paid and allowed to the Public Trustee;
(e) respecting any other matter that he deems necessary to carry out effectively the intent and purpose of this Act.