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Monday, September 01, 2014
Saskatchewan Justice

The Public Guardian and Trustee of Saskatchewan is a public official appointed by the Lieutenant Governor in Council to protect vulnerable persons.

If there does not appear to be any other suitable person to be appointed, the Public Guardian and Trustee may act or be appointed:

  • to administer the property of deceased persons;
  • as a trustee, to protect the property rights of children under the age of 18;
  • as an attorney respecting the property of a person in accordance with the terms of a power of attorney;
  • to administer the property and finances of adults who are incapable of managing their financial affairs; and
  • as personal guardian for an adult who lacks capacity.

An appointment by the Court of Queen's Bench may not be made until the Public Guardian and Trustee has made representations respecting the appointment or consents to the appointment.

The Public Guardian and Trustee may apply to the Court for direction on any matter respecting the management or administration of the property of any infant or adult for whom the Public Guardian and Trustee is trustee, attorney or property guardian.

Property of Infants

The Public Guardian and Trustee may consent to any disposition (i.e., sale, lease, mortgage or other disposition) of an infant's property if the disposition is considered to be in the infant's best interest and if the disposition is proposed by:

  • the infant's legal custodian or the guardian of the infant's property;
  • an executor or administrator;
  • any responsible adult who appears to be acting in the infant's best interest; or
  • the infant.

If the Public Guardian and Trustee does not consent to a disposition, any of these persons may apply to the Court of Queen's Bench for approval of the disposition.

The Public Guardian and Trustee cannot consent to a disposition without the consent of:

  • the infant, if the infant is over the age of 14 years; and
  • either a guardian of the property of the infant or a legal custodian of the infant.

Unless the Court orders otherwise, on an application for Court approval of a disposition, the consent of the infant must be filed if the infant is over the age of 14 years.

Unless the Court orders otherwise, the proceeds to which an infant is entitled from the disposition of land shall be paid to the guardian if there is one or, if there is no guardian, to the Public Guardian and Trustee.

However, the Public Guardian and Trustee cannot receive money payable to an infant where the money is wages or salary earned by an infant or is an entitlement to future payment that is payable when the infant is 18 years old.

In Saskatchewan, no disposition may be made contrary to the provisions of a will or other transfer by which the land or any part of it has been granted to the infant.

Authority of Public Guardian and Trustee as property guardian

The Public Guardian and Trustee can act as a property guardian, temporary property guardian, or property co-decision-maker. Collectively, all three are called a "property decision maker".

The Public Guardian and Trustee shall act as the property guardian of a dependent adult where:

  • a certificate of incapacity has been issued and the Public Guardian and Trustee has signed an acknowledgement to act; or
  • the Public Guardian and Trustee has been appointed property guardian under The Adult Guardianship and Co-decision-making Act or The Public Guardian and Trustee Act.

If it appears to the Court that it would not be in a dependent adult's best interests to appoint an applicant as property guardian, or if a property guardian resigns or is removed, the Court, with the consent of the Public Guardian and Trustee, may appoint the Public Guardian and Trustee as property guardian. This does not prevent any other person from applying to the Court to be substituted as property guardian in place of the Public Guardian and Trustee.

Subject to the Court order making the appointment, the Public Guardian and Trustee, as property guardian of a dependent adult, has the authority to:

  • do all things that the dependent adult could do if competent, including the power to sell, mortgage or otherwise dispose of real property;
  • acquire anything that is necessary or desirable to administer the dependent adult's estate;
  • bring, maintain or defend an action or proceeding with respect to the dependent adult or his or her property;
  • settle any claim by or against the dependent adult;
  • make any provision considered expedient for the maintenance or benefit of the dependent adult; and
  • make any provision considered expedient or desirable for the support and maintenance of anyone dependant on the dependent adult.

Anything done by the Public Guardian and Trustee as property guardian is binding on the dependent adult in the same manner and to the same extent as if the dependent adult had done the thing while mentally competent.

Additional powers

In addition to these powers, the Public Guardian and Trustee has the power:

  • to administer the estate which the property guardian was administering until a new property guardian is appointed when a property guardian dies and has not made a will nominating another property guardian, or where the property guardian becomes a dependent adult;
  • to take any necessary steps for the prudent management of the property of a deceased person for whom the Public Guardian and Trustee was property guardian, pending the grant of letters probate or letters of administration;
  • to apply to the Court for letters of administration in respect of the estate of a deceased person where the dependent adult:
    • is a beneficiary under the will and there is no executor or the executor has renounced probate;
    • is entitled to the estate or a portion of the estate under The Intestate Succession Act; or
    • is the executor or the administrator of the deceased person's estate.

Termination of authority

The appointment of the Public Guardian and Trustee as property guardian, temporary property guardian or co-decision-maker or guardian of an adult terminates when:

  • the Public Guardian and Trustee receives a certificate of capacity in respect of the person;
  • any certificate of incapacity is revoked;
  • the Public Guardian and Trustee receives a copy of a Court order appointing another person or discharging the Public Guardian and Trustee; or
  • the adult dies.

When the Public Guardian and Trustee ceases to act as property guardian, temporary property guardian or co-decision-maker, he or she is required to release any property held to the person for whom it is held and to submit along with it an accounting of the decision-making. Any money owing to the Public Guardian and Trustee with respect to expenses for administration of the property may be obtained by lien against the lands of the person whose property was administered.

Freezing of funds

The Public Guardian and Trustee may require a financial institution to suspend the withdrawal or payment of funds from a person's account for up to 30 days and may require that the financial institution provide the Public Guardian and Trustee with any financial information held by the financial institution respecting that person if:

  • the Public Guardian and Trustee has reasonable grounds to believe that the person is a vulnerable adult; and
  • the Public Guardian and Trustee receives an allegation that the person:
    • is being subjected to financial abuse by another person, including a person appointed as his or her property decision-maker; or
    • is unable to make reasonable judgments respecting matters relating to his or her estate and the estate is likely to suffer serious damage or loss.

Authority to investigate

The Public Guardian and Trustee may investigate an allegation referred to above. In the investigation, the Public Guardian and Trustee may:

  • at any reasonable time, examine any record, whether in the possession of the person believed to be a vulnerable adult or any other person; and
  • request any person to provide any information and explanations considered necessary to the investigation.

Filing of accounts

If a dependent adult for whom the Public Guardian and Trustee acts as property guardian or an infant has an interest in an estate of a deceased person, the Public Guardian and Trustee may apply to the Court at any time he or she considers necessary or advisable for an order to compel the executor or administrator to file his or her accounts.

Whereabouts unknown for six years

If the Public Guardian and Trustee holds funds for:

  • a dependent adult; or
  • a person who, reaching 18 years of age, is entitled to receive payment of money held on his or her behalf;

but whose whereabouts are unknown to the Public Guardian and Trustee for a period of six years, the Public Guardian and Trustee may take any steps considered reasonable to learn the whereabouts of that person. If, after taking those steps, his or her whereabouts are still unknown and it appears there are no heirs to that person's estate if he or she is deceased, the Public Guardian and Trustee may dispose of any money and property held on behalf of the person.

If the Public Guardian and Trustee believes no lawful claim will be made to the money he or she may pay the money into the government consolidated fund.

If a person claims to be entitled to any money paid into the consolidated fund, the Lieutenant Governor in Council may, if satisfied that the claimant is entitled to the amount claimed or any portion of it, authorize the Minister of Finance to pay the amount claimed, or a specified portion thereof, together with any interest that the Lieutenant Governor in Council may specify.

Investment in the common fund

The Public Guardian and Trustee shall:

  • place money received by the Public Guardian and Trustee under this Act, any other Act, or a Court order in a common fund; and
  • subject to the approval of the Investment Board, invest that part of the common fund the Public Guardian and Trustee believes is not immediately required for persons for whom the Public Guardian and Trustee holds funds.

The Public Guardian and Trustee shall distribute to the credit of persons for whom the Public Guardian and Trustee holds funds the interest and dividends earned on the common fund, and gains or losses as prescribed in the regulations.

Agreements with other jurisdictions

The Public Guardian and Trustee may enter into an agreement with the Public Guardian and Trustee or similar officials in other Canadian jurisdictions to provide services in Saskatchewan with respect to the estate of an infant or dependent adult over whom the other Public Guardian and Trustee or person has responsibility.

Accountability

The Public Guardian and Trustee is accountable to clients, the Provincial Auditor and the Court.

The Provincial Auditor, or any other auditor designated by the Lieutenant Governor in Council, shall annually audit the records and accounts of the Public Guardian and Trustee.

The Public Guardian and Trustee shall also prepare and submit to the Minister of Justice an annual report and a financial statement, and the Minister shall table these documents before the Legislative Assembly.



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