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| This Act is current to November 26, 2024 | |||
| See the Tables of Legislative Changes for this Act’s legislative history, including any changes not in force. |
1 In this Act:
"adult" means anyone who has reached 19 years of age;
"court" means the Supreme Court;
"enduring power of attorney" means an enduring power of attorney made under Part 2 of the Power of Attorney Act;
"guardian" means, except in sections 7 and 8, a committee under the Patients Property Act;
"operating account" means the Public Guardian and Trustee Operating Account established under section 24;
"power of attorney" means a power of attorney other than an enduring power of attorney;
"representation agreement" means an agreement made under the Representation Agreement Act;
"representative" means a representative authorized to act under a representation agreement;
"trust fund account" means the Public Guardian and Trustee Trust Fund Account established under section 9;
"young person" means anyone under 19 years of age.
Part 1 — Office, Staff and Management
2 (1) The Public Guardian and Trustee is a corporation sole under the corporate name of "Public Guardian and Trustee".
(2) The Lieutenant Governor in Council may appoint, under the Public Service Act, as Public Guardian and Trustee a person who meets the criteria established under section 28 (2) (a).
(3) The Public Guardian and Trustee holds office for a term of 6 years and the appointment may be renewed once for a further term of 6 years.
(4) If a new Public Guardian and Trustee is appointed, the predecessor must deliver all records and things in the predecessor's custody or control as Public Guardian and Trustee to the new Public Guardian and Trustee.
3 (1) The Public Guardian and Trustee may appoint, under the Public Service Act, one or more deputies.
(2) A deputy public guardian and trustee may
(a) affix and authenticate the seal of the Public Guardian and Trustee,
(b) perform any duties that are assigned or delegated to the deputy public guardian and trustee by the Public Guardian and Trustee, and
(c) perform the duties of the Public Guardian and Trustee, if that officer is absent or if the office is vacant.
(3) Anything done by a deputy public guardian and trustee under this section has the same effect as if it had been done by the Public Guardian and Trustee.
(4) Employees required for the proper conduct of the business of the Public Guardian and Trustee may be appointed under the Public Service Act.
Part 2 — Powers, Duties, Functions and Liability
5 (1) The Public Guardian and Trustee has the powers, duties and functions given
(a) to the Public Guardian and Trustee by this Act or another Act,
(b) to the Public Guardian and Trustee by regulation, and
(c) to the corporations that the Public Guardian and Trustee succeeds to under section 29 (1).
(2) In exercising powers or performing duties or functions under an Act referred to in subsection (1), the Public Guardian and Trustee must be guided by the principles or purposes set out in that Act.
6 The Public Guardian and Trustee may
(a) act as an executor under a will or as an administrator of an estate,
(b) act, either alone or jointly with another person, as a trustee if the Public Guardian and Trustee is appointed a trustee
(i) in a will, settlement or other instrument creating the trust,
(ii) by a majority of a trust's beneficiaries who have reached 19 years of age and are otherwise capable of making the appointment,
(v) by agreement of the Public Guardian and Trustee, and
(c) act as attorney of a person in accordance with the terms of a power of attorney or an enduring power of attorney.
6.1 (1) In this section, "litigation representative" means a person who is appointed by the court to represent, in an action or other legal proceeding, the estate of a deceased party for whom no other legal personal representative exists.
(2) The court must not appoint the Public Guardian and Trustee as the litigation representative of a deceased's estate unless
(a) the deceased left no executor, beneficiary, heir or other appropriate person who is willing and competent to act, and
(b) the Public Guardian and Trustee provides prior written consent to act as the litigation representative.
(3) A person who requested the court to appoint the Public Guardian and Trustee as litigation representative under subsection (2) must pay, in addition to any other fee imposed by this Act or the regulations, all expenses incurred by the Public Guardian and Trustee resulting from the appointment.
6.2 Despite section 124 of the Business Corporations Act, the Public Guardian and Trustee may, as a corporation sole, become and act as a director of a company if
(a) the Public Guardian and Trustee is
(i) guardian of a person who is the sole shareholder of the company,
(ii) appointed curator, under the Estates of Missing Persons Act, of the estate of a missing person who is the sole shareholder of the company, or
(iii) an executor under the will or administrator of the estate of a deceased person who, immediately before the person's death, was the sole shareholder of the company, and
(b) in the opinion of the Public Guardian and Trustee, it is necessary to
(i) protect the person's interest in the company or, if the person is missing or deceased, protect the interest of the person's estate in the company, or
7 (1) If appointed under a court order or enactment as a young person's property guardian, the Public Guardian and Trustee is a trustee of all property that comes into the control of, or is held by, the Public Guardian and Trustee on behalf of the young person.
(2) If a young person's property guardian, the Public Guardian and Trustee may act as litigation guardian for the young person in making or defending claims brought for or against the young person as the Public Guardian and Trustee considers advisable and in the young person's best interests.
(3) If a litigation guardian is required for a young person under the Court Rules Act and is not otherwise provided for by the Infants Act, the Public Guardian and Trustee must act as litigation guardian for the young person if the Public Guardian and Trustee considers it is in the young person's best interests to do so.
7.1 If acting as trustee under section 6 (b) (v) for an adult
(a) who has not yet reached 27 years of age, and
(b) who, until reaching 19 years of age,
(i) was in the continuing custody of the director under the Child, Family and Community Service Act and had the Public Guardian and Trustee acting as property guardian,
(ii) was under the property guardianship of the Public Guardian and Trustee under section 51 of the Infants Act, or
(iii) was under the property guardianship of the Public Guardian and Trustee in accordance with an agreement entered into under section 51.1 of the Child, Family and Community Service Act,
the Public Guardian and Trustee may, during the term of the trusteeship, authorize payment of all or part of the trust money for the maintenance, education or benefit of the adult.
8 If acting as trustee under section 6 (b) or as a young person's property guardian under section 7 (1), the Public Guardian and Trustee must comply with the Trustee Act unless this Act, the regulations, a court order or an instrument that provides for the Public Guardian and Trustee's appointment as trustee or guardian provides otherwise.
9 (1) The Public Guardian and Trustee Trust Fund Account is established.
(2) The Public Guardian and Trustee must keep and control the trust fund account and must place in it
(a) the balance in the Public Trustee Trust Fund Account on the date this section comes into force, and
(b) money received by the Public Guardian and Trustee on behalf of a person or estate under this Act, any other enactment or under a deed, agreement or court order.
(3) Money in the trust fund account must be invested in a common fund under section 12 unless the money
(a) is immediately required for payment, or
(b) is to be invested under section 13.
(4) Until money in the trust fund account is invested, the Public Guardian and Trustee may deposit the money in a single account
(a) in a bank, trust company or credit union,
(b) in any other corporation that is authorized under the laws of British Columbia to accept money for deposit and that has been approved for that purpose by the Lieutenant Governor in Council, or
(c) with the Minister of Finance.
(5) Subsection (4) applies despite section 19 of the Trustee Act.
10 (1) The Public Guardian and Trustee must establish a committee to advise the Public Guardian and Trustee on
(a) developing and implementing strategic policies for investing money placed in the trust fund account,
(b) monitoring investment performance and evaluating investment results on a regular basis, and
(c) performing other related functions and duties.
(2) The committee is to consist of not less than 3 and not more than 6 members, in addition to the Public Guardian and Trustee.
(3) The Public Guardian and Trustee must appoint the other members of the committee and chair the committee.
(4) The members of the committee are entitled to be paid an allowance for reasonable travelling and incidental expenses necessarily incurred in carrying out the business of the committee.
(5) In addition, the members of the committee, other than the Public Guardian and Trustee, may be paid for their services an amount that the Lieutenant Governor in Council determines.
11 For the purposes of investing money, the Public Guardian and Trustee has the powers and is subject to the duties of a trustee under the Trustee Act, except as otherwise expressly provided in a court order, an instrument, this Act or a regulation.
12 (1) For the purpose of investing money, the Public Guardian and Trustee must create at least one common fund within the trust fund account.
(2) If more than one common fund is created, the Public Guardian and Trustee may
(a) develop systems governing how earnings and costs of those common funds are to be apportioned among the common funds, and
(b) consolidate into one common fund any 2 or more common funds created under subsection (1).
(3) After consulting with the committee established under section 10, the Public Guardian and Trustee must draw up a statement of strategic investment policies and objectives for investing money in a common fund created under this section.
(4) Money in the common funds must be placed with the Minister of Finance for investment subject to the strategic investment policies and objectives drawn up under subsection (3), unless the Minister of Finance directs that the money remain with the Public Guardian and Trustee for investment.
(5) Any money placed with the Minister of Finance under subsection (4) is deemed to have been placed under section 40 (5) of the Financial Administration Act.
(6) Money to be invested by the Minister of Finance under subsection (4) is trust funds for the purposes of sections 40 to 44 of the Financial Administration Act and the Public Guardian and Trustee is the trustee of the money.
(7) In accordance with the statement of strategic investment policies and objectives drawn up under subsection (3), the Minister of Finance must prepare quarterly reports for the Public Guardian and Trustee outlining the investment performance of all funds invested by that minister under subsection (4).
(8) No money in a common fund may be invested under this section in a pooled fund unless the policies and objectives of the pooled fund are consistent with the statement of investment policies and objectives drawn up under subsection (3).
(9) An investment of money in a common fund created under this section is not made on account of or for the benefit of a particular estate or person and the investment does not belong to a particular estate or person.
(10) The interest of an estate or person entitled to a share or interest in a common fund created 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.
(11) The Public Guardian and Trustee may deduct from the income earned by a common fund prescribed fees and expenses for operating and maintaining the common fund.
(12) The Public Guardian and Trustee must allocate earnings, in accordance with the regulations, to the credit of the persons and estates for whom the investment was made.
13 (1) The Public Guardian and Trustee may make investments separate from the common funds in the name of a person or estate for whom the Public Guardian and Trustee holds money if
(a) the money is subject to an express trust or direction for investment, or
(b) it is, for any other reason, in the best interests of the person or estate to do so.
(2) The Public Guardian and Trustee may deduct from the income earned by investments under this section prescribed fees and expenses.
14 Investments made by the Public Guardian and Trustee
(a) may be registered in the name of a bank or trust company or the nominee of either, as long as it is apparent that the Public Guardian and Trustee is the beneficial owner, and
(b) may be kept in the custody of a bank or trust company or of the Minister of Finance, or be maintained in a book based system by a depository for securities.
16 (1) The Public Guardian and Trustee may make a temporary loan from the operating account to the account of a person whose estate is administered by the Public Guardian and Trustee.
(2) A loan made under subsection (1)
(a) is a first lien or charge in favour of the Public Guardian and Trustee on all the property and assets of the estate of the person to whom the loan is made, and
(b) has priority over all other charges or encumbrances of that estate, except a lien for wages.
(3) Loans made under subsection (1) are subject to prescribed terms and conditions, and to prescribed rates of interest.
17 (1) The Public Guardian and Trustee may investigate and audit the affairs, dealings and accounts of
(a) a trust, a beneficiary of which is or may be
(ii) an adult who has a guardian, or
(iii) an adult who does not have a guardian but who is apparently abused or neglected, as defined in the Adult Guardianship Act,
(b) an adult who does not have a guardian, a representative or an attorney under an enduring power of attorney but who is apparently abused or neglected, as defined in the Adult Guardianship Act,
(c) an attorney under a power of attorney or an enduring power of attorney, if the Public Guardian and Trustee has reason to believe that the person who granted the power of attorney or enduring power of attorney is incapable of managing the person's financial affairs, business or assets,
if the Public Guardian and Trustee has reason to believe that the interest in the trust, or the assets of the young person or adult, may be at risk, or that the representative, guardian or attorney has failed to comply with the duties of the representative, guardian or attorney.
(2) In addition, the Public Guardian and Trustee may investigate the personal care and health care decisions made by a representative or guardian, if the Public Guardian and Trustee has reason to believe the representative or guardian has failed to comply with the duties of the representative or guardian.
(3) Despite the Freedom of Information and Protection of Privacy Act, the Public Guardian and Trustee must not disclose or be compelled to disclose the identity of a person who makes a report resulting in an investigation or audit under this section.
(4) Nothing in subsection (1) of this section requires the Public Guardian and Trustee to investigate and audit the affairs, dealings and accounts of a guardian who receives property on behalf of a young person under section 178 (2) (a) (ii) of the Family Law Act.
18 (1) In this section and section 19, "Public Guardian and Trustee" includes a person authorized in writing by the Public Guardian and Trustee.
(2) In addition to any powers given in another Act, in making an investigation or audit the Public Guardian and Trustee may do one or more of the following:
(a) for an investigation or audit under section 17 (1),
(i) require the trustee, attorney, representative or guardian to produce any accounts, securities or other records, and
(ii) require a person, institution or other body having records relating to the financial affairs, business or assets of the young person or adult to produce any accounts, securities or other records
the Public Guardian and Trustee considers necessary for the investigation or audit, including any report or information relevant to the incapability of an adult;
(b) for an investigation under section 17 (2),
(i) require the representative or guardian to produce any records relating to the personal care and health care decisions, and
(ii) require a person, institution or other body having records relating to the personal care or health care decisions to produce any personal care or health care records, including any report or information relevant to the incapability of an adult;
(c) inspect and copy any records produced under paragraph (a) or (b);
(d) for an investigation or audit under section 17 (1) or (2), require the trustee, attorney, representative or guardian, or a monitor under a representation agreement, to provide any report, information or explanation the Public Guardian and Trustee considers necessary for the investigation or audit.
(3) A person, institution or other body that is required under subsection (2) to produce accounts, securities or other records or to provide a report, information or explanation
(a) subject to section 51 (5) and (6) of the Evidence Act, must comply, and
(b) is not liable for breach of confidentiality for releasing information under this section.
(4) If a person, institution or other body mentioned in subsection (2) refuses or fails to produce the accounts, securities or other records or to provide the reports, information or explanations required under that subsection, the Public Guardian and Trustee may apply to the court for an order.
(5) On application under subsection (4), the court may order the person, institution or other body to produce the accounts, securities or other records, or to provide the reports information or explanations, to the Public Guardian and Trustee within a time set by the court.
(6) If the person, institution or other body does not comply with the order under subsection (5), the court may, on the application of the Public Guardian and Trustee, make an order authorizing the Public Guardian and Trustee to
(a) enter any premises where the accounts, securities or other records sought by the Public Guardian and Trustee are believed to be located, and
(b) inspect, or copy anything the Public Guardian and Trustee considers relevant to the investigation or audit.
19 (1) In this section, "adult" means an adult who is apparently abused or neglected, as defined in the Adult Guardianship Act.
(2) If the Public Guardian and Trustee has reason to believe that the financial affairs, business or assets of a young person or an adult are in need of immediate protection, the Public Guardian and Trustee may do one or more of the following:
(a) instruct any institution where the young person or the adult has an account that no funds are to be withdrawn from or paid out of that account until further notice;
(b) direct any source of income for the young person or the adult to send the income to the Public Guardian and Trustee or to a person named by the Public Guardian and Trustee
(i) to be held in trust for the young person or adult, or
(ii) to be used to protect or maintain the health or safety of the young person or adult;
(c) halt any disposition of real or personal property belonging to the young person or adult;
(d) take any other step that is necessary to protect the financial affairs, business or assets of the young person or adult and that is reasonable in the circumstances.
(3) A step taken under subsection (2) remains in effect for 30 days or a shorter period set by the Public Guardian and Trustee.
(4) A step taken under subsection (2) may be renewed, but
(a) each renewal period must not be longer than 30 days, and
(b) the step taken must not continue for longer than a total of 120 days.
20 (1) The Public Guardian and Trustee may, in writing, authorize an officer or employee of the Public Guardian and Trustee to do any act or other thing required to be done by the Public Guardian and Trustee.
(2) Without limiting subsection (1), the Public Guardian and Trustee may authorize an officer or employee to sign a document requiring the signature of the Public Guardian and Trustee.
(3) The authority given to an officer or employee under this section may be general or apply to a particular case.
(4) A document signed by a person authorized under this section has the same effect as if the document had been signed by the Public Guardian and Trustee.
21 (1) The Public Guardian and Trustee, or an officer or employee of the Public Guardian and Trustee, is not liable for any loss for which a private trustee would not be liable in similar circumstances.
(2) Any money required to discharge any liability
(a) that the Public Guardian and Trustee, if the Public Guardian and Trustee were a private trustee, would be personally liable to discharge, or
(b) that arises out of an error or omission of the Public Guardian and Trustee, or of an officer or employee of the Public Guardian and Trustee, in the course of carrying out duties under this or another Act, other than the duties of a trustee
must be paid out of the consolidated revenue fund.
(3) If a claim is made against the Public Guardian and Trustee and the Attorney General certifies
(a) that the claim, if pursued, could result in a judgment against the Public Guardian and Trustee, and
(b) that it is in the public interest to settle the claim in an amount set out in the certificate,
the amount set out in the certificate must be paid out of the consolidated revenue fund to the person making the claim.
(4) If an action or other proceeding has been commenced against the Public Guardian and Trustee and the Attorney General certifies that it is in the public interest to pay money into court, the amount set out in the certificate must be paid into court out of the consolidated revenue fund.
(5) If the amount to be set out in a certificate under subsection (3) or (4) is more than a prescribed amount, the Attorney General must obtain the approval of the Treasury Board before issuing the certificate.
(6) Amounts paid out under this section must be included in the report referred to in section 15 of the Crown Proceeding Act.
(7) The court that renders a judgment in a claim, action or proceeding against the Public Guardian and Trustee, or to which an appeal against that judgment lies, may direct that payment of the whole of the amount payable, or any part of it, is suspended pending an appeal or otherwise.
(8) No execution, attachment or other process of that nature may be issued out of a court for enforcing payment of money by the government under this section.
Part 3 — Planning, Financing and Accountability
22 (1) The Public Guardian and Trustee must deliver to the Attorney General, for approval, a service delivery plan not later than 3 months before the beginning of each fiscal year.
(2) The service delivery plan must specify for each program area, for the fiscal year about to begin and for each of the following 2 fiscal years,
(a) the objectives of the program area,
(b) the nature and the scope of activities to be undertaken,
(c) the performance targets and other measures by which the performance of the program area may be assessed,
(d) a forecast of revenues to be collected,
(e) an estimate of the funding required to meet the objectives of the program area, and
(f) an estimate of the amount of surplus or deficit and the cash balance remaining in the operating account for each fiscal year.
(3) If the Attorney General approves the service delivery plan, the Public Guardian and Trustee must submit it to Treasury Board for approval.
(4) The Public Guardian and Trustee may modify the service delivery plan at any time with the approval of the Attorney General and Treasury Board.
23 (1) On the recommendation of Treasury Board, the Lieutenant Governor in Council may make regulations prescribing fees or a scale of fees, including commissions and charges, payable to the Public Guardian and Trustee for performing a duty or service or for acting as trustee under this Act, another enactment or an agreement.
(1.1) This section prevails over a provision in any other Act relating to fees.
(2) The regulations referred to in subsection (1) may
(a) prescribe to whom and at what time any fee must be paid,
(b) prescribe the source of funds, including the estate of a person, from which fees may be taken,
(b.1) prescribe fees for services performed by employees and agents of the Public Guardian and Trustee,
(b.2) prescribe the manner in which fees are to be calculated, including, alone or in combination, any of the following:
(i) as a percentage of the income or capital of the estate;
(iv) based on the actual costs incurred,
(c) allow the Public Guardian and Trustee to excuse a person from paying a fee or to refund a fee in cases of hardship or unfairness, and
(d) provide for the delegation by the Public Guardian and Trustee to other persons of the power to excuse or refund fees.
(3) Subsection (2) (c) applies despite section 19 of the Financial Administration Act.
(4) In addition, the Public Guardian and Trustee may recover costs incurred and loans made in performing a duty or delivering services under this Act, another enactment or an agreement.
24 (1) The Public Guardian and Trustee Operating Account is established as a special account in the general fund of the consolidated revenue fund.
(2) The following money must be paid into the operating account:
(a) the balance in the Public Trustee Operating Account on the date this section comes into force;
(b) money received by the Public Guardian and Trustee as fees, commissions, charges or recoveries of costs;
(c) money transferred to the operating account from a vote, as defined in the Financial Administration Act;
(d) money that the Minister of Finance directs to be paid into the operating account.
(3) The Public Guardian and Trustee may require the Minister of Finance to make payments out of the operating account for the purposes of paying for the costs involved in providing services and operating the office.
25 (1) The Public Guardian and Trustee must report in each fiscal year to the Attorney General on the operations of the office for the preceding fiscal year.
(2) The report must be made by September 30 following the preceding fiscal year end.
(3) The report of the Public Guardian and Trustee must contain
(a) audited financial statements on the stewardship of trusts and estates under administration,
(b) audited financial statements on the operations of the office of the Public Guardian and Trustee,
(c) a statement of the extent to which the office of the Public Guardian and Trustee has met the performance targets and other objectives established in the service delivery plan under section 22, and
(d) the report referred to in section 26 (1) (b) or (1.1).
(4) The Attorney General must promptly lay a copy of the report before the Legislative Assembly if it is in session and, if it is not then in session, within 30 days after the beginning of the next session.
26 (1) Unless the Auditor General is appointed in accordance with the Auditor General Act as the auditor of the Public Guardian and Trustee, the Public Guardian and Trustee must appoint an auditor to
(a) audit the financial statements of the office of the Public Guardian and Trustee each year, and
(b) report on the Public Guardian and Trustee's statement under section 25 (3) (c) of this Act.
(1.1) If the Auditor General is appointed in accordance with the Auditor General Act as the auditor of the Public Guardian and Trustee, the Auditor General must also report on the Public Guardian and Trustee's statement under section 25 (3) (c) of this Act.
(2) The Minister of Finance or the Attorney General may audit, at any time, the books, accounts and financial statements of the Public Guardian and Trustee.
27.1 (1) In this section, "administrator" has the same meaning as in the Unclaimed Property Act.
(1.1) If a person who has a legal or equitable interest in all or part of money held by the Public Guardian and Trustee on behalf of a person or estate does not claim the money within the applicable period prescribed for the purposes of this section, the Public Guardian and Trustee must pay the money to the administrator.
(2) Money paid to the administrator under subsection (1.1) is deemed to be an unclaimed money deposit under the Unclaimed Property Act.
28 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.
(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:
(a) establishing the criteria for eligibility for appointment as Public Guardian and Trustee;
(b) authorizing the Public Guardian and Trustee to invest in specified types of investments in addition to investments permitted under the provisions of the Trustee Act respecting the investment of trust property by a trustee;
(c) establishing, for the purposes of section 12 (12), the method for allocating investment earnings of a common fund to the credit of the persons for whom the investment was made;
(d) establishing terms and conditions under which loans may be made under section 16 and prescribing the rate of interest payable on those loans;
(e) prescribing different limits for different claims, or different classes of claims, that may be settled under section 21;
(e.1) prescribing, by reference to events specified by the Public Guardian and Trustee or otherwise, time periods for the purposes of section 27.1;
(f) providing for the resolution by the Public Guardian and Trustee of complaints about services delivered to people and decisions made on their behalf by the Public Guardian and Trustee.
(3) A regulation under subsection (2) (e.1) may provide differently for money held by the Public Guardian and Trustee under different authorities.
29 (1) The Public Guardian and Trustee is the successor in office of
(a) the corporation sole formerly known as the Public Trustee,
(b) the corporation sole formerly known as the Official Guardian,
(c) the corporation sole formerly known as the Official Administrator for the Province of British Columbia, and
(d) the Official Administrator for the County of Vancouver and all other counties within the Province.
(2) Property vested in any of the officers referred to in subsection (1) vests in the Public Guardian and Trustee.
(3) A reference to the Public Trustee, Official Guardian, Official Committee or Official Administrator in a contract, licence, order or other document made or issued before this section comes into force is deemed to be a reference to the Public Guardian and Trustee.
30 The Lieutenant Governor in Council may by regulation, strike out a reference in any enactment to "Public Trustee" or "Public Trustee Act" and substitute "Public Guardian and Trustee" and "Public Guardian and Trustee Act" respectively.
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