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REPEALED
Date: April 1, 2014
C.C.S.M. c. P275
The Public Trustee Act
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 the 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.
Public Trustee is official guardian
The Public Trustee is the official guardian in the province.
The Public Trustee may act as litigation guardian of an infant unless
(a) a person is acting as litigation guardian for the infant in accordance with the Queen's Bench Rules; or
(b) the infant has retained and instructed counsel when permitted to do so under a statute.
When acting as the litigation guardian of an infant, the Public Trustee is entitled to all medical reports and other confidential information relating to the infant.
Additional duties as official guardian
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.
S.M. 1992, c. 29, s. 3; S.M. 2004, c. 23, s. 2.
Settlements on behalf of infants
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 litigation guardian of the infant, acting on behalf of the infant, has agreed, either before or after the commencement of an action, on a settlement of the claim or action, the litigation 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 the Public Trustee 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 litigation guardian of the infant unless the court so directs.
Repealed.
S.M. 1989-90, c. 43, s. 15; S.M. 1992, c. 29, s. 5; S.M. 2004, c. 23, s. 3.
Summary administration of small estates
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.
Filing of notice by Public Trustee
Where the Public Trustee is
(a) the litigation guardian of an infant;
(b) the committee of a person appointed under The Mental Health Act; or
(c) the substitute decision maker for property for a vulnerable person who has been appointed under The Vulnerable Persons Living with a Mental Disability Act;
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.
S.M. 1992, c. 29, s. 7; S.M. 1993, c. 29, s. 199; S.M. 1998, c. 36, s. 134.
Repealed.
Repealed.
S.M. 1992, c. 29, s. 9; S.M. 1998, c. 36, s. 134.
Acceptance and execution of trust
The Public Trustee may be granted letters probate or letters of administration and, with the consent of the Public Trustee 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 the Public Trustee 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 the Public Trustee, 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 money in the hands of the Public Trustee.
Authority to invest in common funds
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.
Investment of moneys in common fund
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.
Investment with Minister of Finance
The Public Trustee may invest moneys in a common fund with the Minister of Finance on such terms and conditions as the Public Trustee considers 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.
Fees and expenses of public trustee
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 closing daily balances of money in each of the accounts that form the common fund and shall be credited to the respective estates and persons entitled to them at such times as the Public Trustee may determine but not less often than semi-annually.
S.M. 1992, c. 29, s. 12; S.M. 1993, c. 48, s. 33; S.M. 2008, c. 42, s. 82.
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 or her duty as executor, administrator, trustee, committee or in any other office to which the Public Trustee 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.
Compensation for Public Trustee
The Public Trustee is entitled to and may claim such compensation and expenses for administering an estate or trust as are or may be allowed to a private trustee, and may from time to time during the administration deduct compensation from and out of the estate or trust for work completed and expenses incurred.
Notwithstanding this or any other Act, the Public Trustee may in connection with any estate or trust administered or managed by the Public Trustee make a reasonable charge for any service performed by a member of the staff 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.
Public Trustee may be awarded costs
The Court of Queen's Bench may award costs to the Public Trustee in any action or proceeding taken by or against the Public Trustee in which the court considers the attendance of the Public Trustee to be necessary or advisable, and the court may direct the costs to be paid to the Public Trustee on a solicitor and client basis.
Public Trustee not liable for costs
Where the defence conducted by the Public Trustee as litigation guardian or litigation administrator in an action, proceeding or other matter in the Court of Queen's Bench is not successful, and the court finds that the Public Trustee has acted reasonably and in good faith, the court shall not award costs against the Public Trustee.
Repealed.
S.M. 1992, c. 29, s. 15; S.M. 1998, c. 21, s. 1.
All sums required to discharge any liability for a loss that the Public Trustee, if he or she 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 the staff of the Public Trustee is not liable for any loss that would not have imposed liability upon a private trustee.
The Auditor General shall audit annually the books and accounts of the Public Trustee and incorporate his or her findings in the report on The Public Accounts of the government.
The Auditor General shall audit annually such of the accounts of the Public Trustee relating to estates under the administration of the Public Trustee as the Auditor General considers necessary.
Minister of Finance to lay accounts before Legislature
The Minister of Finance shall lay before the Legislature, within 15 days of the opening of the session in each year, the reports of the auditor under this section.
Payment for audit charged to estates
The Public Trustee shall pay to the Minister of Finance, for the audit of the Public Trustee's accounts, the fees determined by the Lieutenant Governor in Council, and may be allowed a proportionate part of the fees so paid as expenses necessarily incurred on behalf of the estates under the Public Trustee's administration.
S.M. 1992, c. 29, s. 17; S.M. 1998, c. 36, s. 134; S.M. 2001, c. 39, s. 31.
The Public Trustee may in writing authorize any person 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.
Delegation of authority for medical consent
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 Auditor General's report on the audit of the books and accounts of the Public Trustee for a fiscal year, the Public Trustee shall make to the Minister of Justice a report on the operations of the office of the Public Trustee in the fiscal year including an audited balance sheet and an audited statement of receipts and expenditures for the fiscal year and the Minister of Justice 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.
S.M. 1992, c. 29, s. 19; S.M. 1993, c. 48, s. 92; S.M. 2001, c. 39, s. 31.
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 or she considers necessary to carry out effectively the intent and purpose of this Act.