Legislative Assembly of New Brunswick
Status of Legislation - First Reading Bill
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Public Trustee Act + (The Bill was withdrawn June 1, 2005.)

Legislature :
55
Session :
2
Bill No. :
10
Member :
Mr. S. Graham
First Reading :
2004-12-3
Second Reading :
2004-12-8
Committee of the Whole :
Amended :
Third Reading :
Royal Assent :
Download PDF :
Bill 10

Text of Bill :
Chapter Outline



Office of the Public Trustee............................................................................................................. 1

Appointment................................................................................................................................. 1(2)

Suspension and dismissal..................................................................................................... 1(3), (4)

Temporary Trustee....................................................................................................................... 1(5)

Rights and duties as Public Guardian............................................................................................... 2

Estates and trusts............................................................................................................................... 3

Rights and duties with respect to absentees and mentally incompetent persons......................... 4

Fees..................................................................................................................................................... 5

Administration of funds.................................................................................................................... 6

Losses................................................................................................................................................. 7

Court costs......................................................................................................................................... 8

Surrender of property........................................................................................................................ 9

Investment of trust moneys............................................................................................................ 10

Access to personal information................................................................................................ 11(1)

Obligations on institutions........................................................................................................ 11(2)

Reporting......................................................................................................................................... 12

Confidentiality................................................................................................................................. 13

Security............................................................................................................................................ 14

Regulations...................................................................................................................................... 15

Commencement.............................................................................................................................. 16





Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:



1(1)                   There is hereby established the Office of the Public Trustee.



1(2)                   Notwithstanding the Civil Service Act, the Lieutenant-Governor in Council shall appoint a member of the bar of New Brunswick of at least 10 years' standing to be the Public Trustee for the province.



1(3)                   The Public Trustee shall hold office during good behavior and may only be removed for incapacity, neglect of duty, or misconduct, by the Lieutenant-Governor in Council upon an address in which two-thirds of the Members of the Legislative Assembly concur.



1(4)                   Where the Legislative Assembly is not in session, the Lieutenant-Governor in Council may suspend the Public Trustee, for cause sufficient to warrant removal from office under subsection (3), with pay, but such a suspension shall not continue past the fifteenth day after the opening of the next session of the Legislative Assembly.



1(5)                   In the event of absence or incapacity of the Public Trustee the Lieutenant-Governor in Council may appoint a person to perform temporarily the duties of the Public Trustee subject to subsection (2).



1(6)                   Such employees as are required for the Office of the Public Trustee shall be hired in accordance with the Civil Service Act.



1(7)                   The salaries or other remuneration of the Public Trustee and employees in the Public Trustee's office shall be fixed by the Lieutenant-Governor in Council, and may be paid out of moneys appropriated by the Legislature for that purpose, or out of any fund established under this Act, as the Lieutenant-Governor in Council directs from time to time.



2(1)                   The Public Trustee shall serve as the litigation guardian, upon appointment by the court pursuant to Rule 7.03 of the Rules of Court, of every minor, person who is mentally incompetent, whether or not he or she has been so declared, or person incapable of managing his or her own affairs, who has not otherwise been appointed a litigation guardian.



2(2)                   Notwithstanding subsection (1), the Public Trustee shall not be appointed as litigation guardian without his or her consent in writing.



2(3)                   The Public Trustee, as litigation guardian under subsection (1), is entitled to all medical reports and other confidential information relating to the litigant reasonably necessary to represent that litigant.



2(4)                   The Public Trustee may delegate any of his or her powers or duties, except the duty to report to the Legislative Assembly under section 12, to an employee in the Office of the Public Trustee, provided that such delegation is in writing.



2(5)                   The Public Trustee shall perform any additional duties assigned to him or her by any Act of the Legislature, or by any regulation passed by the Lieutenant-Governor in Council.



3(1)                   The Public Trustee may be granted letters probate or letters of administration and, subject to subsection (3), may be appointed as a trustee under any Act or as 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.



3(2)                   The Public Trustee may accept and administer any charitable or public trust.



3(3)                   The Public Trustee shall not be appointed as a trustee, by a court or otherwise, without his or her consent in writing.



3(4)                   The Public Trustee may be appointed sole trustee notwithstanding the trust instrument's contemplation of two or more trustees.



3(5)                   Any person who is a joint trustee with the Public Trustee may retire at anytime without being replaced, notwithstanding any requirement in the trust instrument requiring a minimum number of trustees.



4(1)                   The Public Trustee may serve as the committee of a person declared an absentee under the Presumption of Death Act.



4(2)                   The Public Trustee may serve as the committee of a person who is mentally incompetent, whether or not so declared, and in this capacity has and may exercise all the rights and powers with respect to the estate of the person that the person would have if of full age and of sound and disposing mind.



4(3)                   Notwithstanding subsection (2), the Public Trustee shall not become the committee of a person whose estate is administered by the Administrator of Estates under the Mental Health Act or a committee under the Infirm Persons Act, nor shall he or she continue to serve as the committee of a person if the Administrator of Estates or a committee under the Infirm Persons Act would be vested with the committeeship of that person if not for this Act.



4(4)                   No appointment may be made under subsection (1) or subsection (2) without the Public Trustee's consent in writing.



5(1)                   The Public Trustee may charge fees for services rendered, expenses incurred, and things done, by him or her, his or her employees, or his or her agents, under this or any other Act.



5(2)                   The fees charged for services rendered and things done shall be determined by the Public Trustee, but shall be subject to the approval of the Attorney General.



5(3)                   The Public Trustee may deduct fees and expenses from the money held for a person, estate or trust.



5(4)                   Where the Public Trustee holds moneys of an estate or trust and passes the estate's or trust's accounts, the Public Trustee may withhold an amount sufficient to secure the costs of the passing of accounts.



5(5)                   The Public Trustee may, in his or her discretion, reduce the amount of a fee or waive its payment in a case of deemed hardship or in other appropriate circumstances.



5(6)                   A waiver pursuant to subsection (5) may be in respect of a person or in respect of a class of persons.



6(1)                   All fees, and other income, of the Public Trustee shall be paid into a separate account as prescribed by regulations made under this Act.



6(2)                   The separate account in subsection (1) shall be used to pay the salaries or other remuneration and expenses of the Public Trustee and the employees of the Public Trustee's office.



6(3)                   Any surplus in the separate account in subsection (1) may be used to establish an assurance fund as provided by regulations made under this Act.



6(4)                   The Lieutenant-Governor in Council may from time to time direct the payment into the province's Consolidated Fund of any balance at the credit of the separate account in subsection (1).



7(1)                   All sums required to discharge any liability for a loss that the Public Trustee, if he or she were a private trustee, litigation guardian, or committee of an absentee or mentally incompetent person would be personally liable to discharge, shall be made good out of the assurance fund, the Consolidated Fund, or from insurance which may be taken out for that purpose.



7(2)                   The Public Trustee may not be found liable, in discharging his or her duties as a trustee, litigation guardian, or committee of an absentee, under any circumstances where a private trustee, litigation guardian, or committee of an absentee person would not be found liable.



8(1)                   The court, in any action brought by or against the Public Trustee, may award costs to be paid to the Public Trustee provided that the court considers the attendance of the Public Trustee to be necessary or advisable.



8(2)                   The court shall not, in any action brought by the Public Trustee in which the court deems the Public Trustee's conduct to be reasonable and in good faith, award costs against the Public Trustee.



9(1)                   Where the Public Trustee, acting in any capacity, holds property of a person who has died and to which the deceased's executor is entitled, the production to the Public Trustee of



(a)               an authenticated copy of the probate of the will of the deceased, letters of administration of the deceased's estate, letters of verification of heirship, the act of curatorship or tutorship granted by any court in Canada having the power to grant the same;



(b)               an authentic copy of the will of the deceased, if it is in notarial form according to the law of the Province of Québec; or



(c)               if the deceased died elsewhere than in a place mentioned in paragraph (a) or (b), any authenticated copy of the probate of his or her will, or of letters of administration of his or her property, or other document of like import, granted by any court or authority having the requisite power in such matters,



is sufficient justification and authority for the surrender of such property in pursuance of and in conformity with such probate, letters of administration, or other document.



9(2)                   When the authenticated copy of the probate, or other listed document, is produced to the Public Trustee pursuant to subsection (1), the Public Trustee shall retain a true copy thereof.



9(3)                   Where the total value of the property of the deceased held by the Public Trustee does not exceed $20,000 the Public Trustee has discretion, on receiving evidence he or she deems satisfactory, to distribute the property to the deceased's heirs or executor without requiring compliance with subsection (1).



9(4)                   The Public Trustee is not liable for any faulty distribution made under subsection (3) where such distribution is carried out prudently and in good faith.



10(1)               The Public Trustee may invest trust money in any kind of property, real, personal, or mixed, but in so doing shall exercise the judgment and care that a person of prudence, discretion and intelligence would exercise as a trustee of the property of others.



10(2)               When acting in accordance with subsection (1), the Public Trustee may



(a)               obtain and rely on the advice of another person in relation to the investment of trust money; and



(b)               delegate to another person his or her authority to make investments.



11(1)               The Public Trustee may, for the purpose of identifying and locating any persons who may be entitled to assets held by the Public Trustee,



(a)               collect personal information from any source; and



(b)               retain, use and disclose personal information obtained under paragraph (a).



11(2)               Every institution shall disclose to the Public Trustee information requested under clause (1)(a).



11(3)               Subsection (2) does not apply to the Ministry of Health and Wellness or to any other institution of which the Minister of Health and Wellness is the minister responsible.



11(4)               Any person, including unincorporated institutions and any other private or public entity, may disclose to the Public Trustee information requested under paragraph (1)(a).



11(5)               Notwithstanding subsection (3), the Ministry of Health and Wellness may release an individual's date of birth, current address, and past addresses to the Public Trustee upon request.



11(6)               This section applies notwithstanding anything in the Protection of Personal Information Act or any other Act or regulation to the contrary.



11(7)               No person shall be found guilty of an offence under any other Act for conduct undertaken in compliance with this section.



12(1)               The Public Trustee shall report annually to the Legislative Assembly on the exercise of his or her functions under this Act.



12(2)               The Public Trustee, in the public interest or in the interests of a person or an authority, may publish reports relating generally to the exercise of his or her functions under this Act.



13(1)               Every person employed in the performance of the duties imposed upon the Public Trustee by this Act or by the Lieutenant-Governor in Council shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of such employment and shall not communicate any such matters to any person other than to a person legally entitled thereto or to the person's legal counsel except as may be required in connection with the administration of this Act or the regulations under this Act.



13(2)               In subsection (1), "administration of this Act" includes any proceedings pursued under this Act.



14                        Despite any rule or practice or any Act requiring security, it is not necessary for the Public Trustee to give any security for the due performance of his or her duties as executor, administrator, trustee, committee, or other capacity, to which the Public Trustee may be appointed, unless otherwise ordered by the court, or provided for by contract, in the trust instrument, or by regulation.



15                        The Lieutenant-Governor in Council may make regulations



(a)               respecting the office of the Public Trustee, imposing duties on the Public Trustee in addition to those imposed by this Act, and prescribing the trusts or duties the Public Trustee is authorized to accept or undertake under this Act, and the security, if any, to be given by the Public Trustee and its employees;



(b)               respecting the application and disposal of fees and other income of the Office of the Public Trustee;



(c)               respecting the transfer to and from the Public Trustee of property;



(d)               respecting the accounts to be kept;



(e)               for the establishment of an assurance fund for the purpose of meeting any losses for which the Office of Public Trustee may be liable;



(f)                for constituting a committee to advise the Public Trustee on matters relating to the Public Trustee's role as litigation guardian;



(g)               for constituting committees to advise the Public Trustee generally on other matters;



(h)               providing for remuneration of members of any advisory committee;



(i)                establishing criteria for determining "hardship" for the purposes of subsection 5(5).



16                        This Act or any provision of it comes into force on a day or days to be fixed by proclamation.

 

Legislative Assembly of New Brunswick
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