Legislative Update: Manitoba’s New Public Guardian and Trustee Act

Effective April 1, 2014, Manitoba’s Public Trustee Act is repealed and replaced with The Public Guardian and Trustee Act (C.C.S.M. c.P205).

The new legislation was introduced last spring as Bill 36 and received Royal Assent in December 2013 without amendment. The explanatory note to the Bill summarizes the changes made to the pre-existing legislative scheme as follows:

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.

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”.

The Public Guardian and Trustee’s website (as of writing, not yet updated to reflect the new name or legislative scheme) is a useful source of information about the office as well as plain language legal information about Manitoba laws related to administration of estates, powers of attorney and committeeships.