Frequently Asked Questions about Trustee Services for Adults who are considered to be mentally incompetent under the law

 

What authority does the Public Trustee have as a guardian or trustee for an adult who is considered to be mentally incompetent?

The Public Trustee’s role is to act on behalf of a client to protect the client’s interests. It has the right to know any information that is available about the client’s property and so, for example, may see such documents as the client’s will. It does what the adult would normally do to look after their own affairs, including the following:

  • have access to their bank accounts
  • enter their home, making it secure and repairing it
  • buy goods and services that are needed
  • apply for pension benefits and receive them
  • complete tax returns
  • sign documents
  • sell personal property
  • pay bills

The Public Trustee can sell or mortgage property such as land under one of these conditions:

  • the Supreme Court approves that action
  • an Enduring Power of Attorney document gives the Public Trustee that authority

When the Public Trustee acts as a trustee or guardian of an adult who is considered to be mentally incompetent, it has only the adult’s money to use to pay their bills and expenses. The Public Trustee has no money to contribute to help the adult with these bills and expenses.

How is the Public Trustee appointed as guardian of the estate under the Incompetent Persons Act?

These are the steps:

  • a lawyer files an application with the Supreme Court. It may take a number of months to prepare all the supporting information before the application can be filed with the court
  • two doctors prepare and sign affidavits stating that the adult is not mentally competent to manage their estate
  • a lawyer prepares an affidavit that gives detailed information about the adult’s estate
  • a lawyer files all the affidavits with the Supreme Court
  • someone serves the adult with a notice to say that the application has been filed. If the adult lives in a continuing-care home, the notice must be served upon the director of the home
  • a lawyer notifies the adult’s family that the application will be filed with the court. If the family objects to the application, someone must also notify the family of the date, time, and place for the court to hear the application

The application is prepared by a lawyer and the legal fees for this service are charged to the adult’s estate.

How does the Public Trustee become the trustee of the estate of an adult who is considered to be an incompetent person under Section 13 of the Adult Protection Act?

The Adult Protection Service investigates the conditions of an adult who may need protecting, and may move the adult from where they are living to a place where the Adult Protection Service believes they will be safe. The Adult Protection Service investigates when it believes an adult may need to be protected for any of these reasons:

  • the life of the adult is in danger
  • the adult is not mentally competent to decide whether or not to accept the help of the Minister of Health, or the adult is being forced to refuse help
  • the person is an “adult in need of protection” as defined by the Adult Protection Act

The Adult Protection Act defines an adult in need of protection in this way:

an adult who, in the premises where he resides,
(i) is a victim of physical abuse, sexual abuse, mental cruelty or a combination thereof, is incapable of protecting himself therefrom by reason of physical disability or mental infirmity, and refuses, delays or is unable to make provision for his protection therefrom, or
(ii) is not receiving adequate care and attention, is incapable of caring adequately for himself by reason of physical disability or mental infirmity, and refuses, delays or is unable to make provision for his adequate care and attention

The Adult Protection Service will send a special notice to the Public Trustee under Section 13 of the Adult Protection Act, to ask the Public Trustee to investigate, under these conditions:

  • the Adult Protection Service moves the adult from where they were living to a place where they will be safe
  • the Adult Protection Service believes that the adult’s property will be in danger once he or she has been moved

The Public Trustee investigates the situation as soon as it receives the notice. If the Public Trustee finds that no one has the authority to manage the estate, and that any of the adult’s property is in danger of being lost or damaged, then it has the authority to take over the property and become the trustee of the adult’s estate.

The Public Trustee will not act as trustee of an adult’s estate if the adult has an Enduring Power of Attorney and the person named in the Enduring Power of Attorney is carrying out the powers contained in it. This is true even when the estate is referred to the Public Trustee under one of these acts:

  • Section 59 of the Hospitals Act
  • Section 13 of the Adult Protection Act
  • Section 8A of the Public Trustee Act

The Public Trustee does not investigate or oversee the actions of an attorney who is acting under an Enduring Power of Attorney.

The Public Trustee will continue to act as trustee of the adult’s estate until one of these things happens:

  • the Public Trustee finds that it is no longer necessary to manage the adult’s estate
  • the Supreme Court appoints the Public Trustee or another person to be guardian of the estate for the adult under the Incompetent Persons Act
  • the Public Trustee receives a medical opinion, in writing and signed by a doctor, to say that the doctor believes the adult is now competent to manage their own estate
  • a court finds that the adult is competent to manage their own estate

How to send a Section 13 Notice under the Adult Protection Act to the Public Trustee

Complete and send a copy of all the following documents:

  • an Adult Protection Court Order
  • the Department of Health Adult Protection Intake Form
  • the Department of Health Medical Observation Form
  • the Adult Protection Section 10(I) Authorization Form
  • a Living Adult Estate Questionnaire

Note: If you want to refer an adult to the Adult Protection Service, please call 1-800-225-7225.

How does the Public Trustee become trustee of the estate of an adult who is considered to be an incompetent person under Section 59 of the Hospitals Act?

A doctor on staff at a hospital may examine a patient to decide if the adult is able to look after their own estate. In a psychiatric facility, the doctor who examines the patient must be a psychiatrist.

A doctor or psychiatrist who finds that the patient is not competent to manage their estate must complete a form called a “Declaration of Competency.”

The Declaration of Competency states that the patient is not competent to manage their estate. When it is complete, the hospital tries to find out whether the patient has an attorney named in an Enduring Power of Attorney, or a guardian of the estate named under the Incompetent Persons Act. If not, a Section 59 Notice must be sent to the Public Trustee from the administrator of the hospital or the chief executive officer of the psychiatric facility. This form is part of the regulations of the Hospitals Act. The Notice asks the Public Trustee to take over managing the adult’s estate immediately.

How to send a Section 59 Notice under the Hospitals Act to the Public Trustee

Complete and send a copy of all the following documents:

You must also include any other information that the hospital or psychiatric facility knows about the adult’s estate and situation that would help the Public Trustee investigate.

The Public Trustee will investigate as soon as it has all the information, and decide whether or not to act as the trustee for the adult.

The Public Trustee will not act as trustee of an adult’s estate if the adult has an Enduring Power of Attorney and the person named in the Enduring Power of Attorney is carrying out the powers contained in it. This is true even when the estate is referred to the Public Trustee under one of these acts:

  • Section 59 of the Hospitals Act
  • Section 13 of the Adult Protection Act
  • Section 8A of the Public Trustee Act

The Public Trustee does not investigate or oversee the actions of an attorney who is acting under an Enduring Power of Attorney.

Note: If you are concerned about how an attorney is managing an estate under an Enduring Power of Attorney, you can ask the Supreme Court to review the situation under the Power of Attorney Act.

The Public Trustee will continue to act as trustee of the adult’s estate until one of these things happens:

  • the Public Trustee finds that it is no longer necessary to manage the adult’s estate
  • the Supreme Court appoints the Public Trustee or another person to be guardian of the estate for the adult under the Incompetent Persons Act
  • the patient is still in the hospital or psychiatric facility and
    • the doctor or psychiatrist re-examines the patient and finds that the person is now competent to manage their own estate and
    • the doctor or psychiatrist signs a form called a “Revocation of Declaration of Competency”
  • the patient is no longer in the hospital and
    • the Public Trustee receives a medical opinion, in writing and signed by a doctor and
    • the medical opinion states that the doctor believes the adult is now competent to manage their own estate
  • a court finds that the adult is competent to manage their own estate

A patient in a hospital or psychiatric facility can ask the Supreme Court to review a Declaration of Competency. Where there is no Supreme Court (Family Division), the adult can ask the Family Court.

An adult who is an involuntary patient under the Involuntary Psychiatric Treatment Act can ask for a review of the Declaration of Competency. The review is done by the Review Board that is set up under the Involuntary Psychiatric Treatment Act.

How does the Public Trustee become trustee of the estate of an adult who is considered to be an incompetent person under the Personal Directives Act and the Public Trustee Act?

These things must be in place:

  • a person is either named to make decisions for the adult in a Personal Directive or has the authority to do that under the Personal Directives Act
  • the person makes either of these decisions for the adult:
    - to accept an offer to be placed in a continuing-care home or
    - to accept home care services
  • the adult does not have either of these things in place
    - a guardian of the estate
    - an Enduring Power of Attorney or other legal arrangement to manage the estate
  • the adult will receive home care services or be placed in a continuing-care home

A referral can then be made to the Public Trustee to manage the estate.

Who is authorized to refer an estate to the Public Trustee under the Personal Directives Act?

Any of these people can make a referral on behalf of an adult who is offered either a place in a continuing-care home or home care services

  • the person in charge of a continuing-care home
  • a home care services provider. Home care services are health care and support services for a person who is in their own home or in a continuing-care home. The person who makes the assessment to approve these services is licensed by the province to provide home care or is authorized by the Minister of Health or the Minister of Community Services to carry out a needs assessment
  • a delegate named in a Personal Directive
  • the adult’s nearest relative or the Public Trustee

If there is no one who is legally authorized to manage the adult’s estate, then the person should make the referral to the Public Trustee as soon as they accept the offer of either the services or the placement.

How to refer an estate to the Public Trustee under the Personal Directives Act

Complete and send a copy of all the following documents:

Note: Form 2 has been created as a convenient way for a qualified medical practitioner to send the information that is required. If you prefer to send a letter, please use Form 2 as a reference for what material to include in the letter.

Fax all required documents to:

Public Trustee Offic, 902-424-0616

Mail the original documents to:

Public Trustee
PO Box 685
Halifax, NS B3J 2T3

Note: At this time, there are no health care professionals prescribed by regulation. The Form 2: Declaration of Competency to Administer Estate Regarding Person Requiring Continuing-Care or Home-Services Care must be completed by a qualified medical practitioner.

What happens when someone refers an estate to the Public Trustee under the Personal Directives Act?

The Public Trustee has the authority to act on behalf of the adult and to protect their estate. This means that the Public Trustee has access to any information about the person’s estate, and may take any action that is needed to protect the estate.

If the Public Trustee cannot find a guardian of the estate for the adult or an attorney with an Enduring Power of Attorney, or the Public Trustee believes that it is necessary to continue to protect the estate, the Public Trustee may take possession of the estate in order to protect it. If this happens, the Public Trustee will spend whatever money is necessary to continue to look after and protect the estate.

The Public Trustee will continue to act as trustee of the adult’s estate until one of these things happens

  • the Public Trustee finds that it is no longer necessary to manage the adult’s estate
  • the Supreme Court appoints the Public Trustee or another person to be guardian of the estate for the adult under the Incompetent Persons Act
  • the Public Trustee receives a medical opinion that is signed and in writing, from a doctor, stating that the doctor believes the adult is now competent to manage their own estate
  • a court finds that the adult is competent to manage their own estate

Can the Public Trustee be appointed as an attorney under a Power of Attorney?

There are many demands for the Public Trustee’s services as a financial trustee. Many of these are services that the Public Trustee has a legal responsibility to provide. Acting as an attorney under a Power of Attorney is not one of the services the Public Trustee has a legal responsibility to provide. The Public Trustee almost never accepts appointments as an attorney under a Power of Attorney.

Power of Attorney

The Public Trustee has the authority to accept an appointment to act as the attorney under a Power of Attorney, to not accept it, and to stop acting as the attorney. The Public Trustee will act as the attorney only if this relationship will benefit the client.

Enduring Power of Attorney

The Public Trustee will not act as trustee of an adult’s estate if the adult has an Enduring Power of Attorney and the person named in the Enduring Power of Attorney is carrying out the powers contained in it. This is true even when the estate is referred to the Public Trustee under one of these acts:

  • Section 59 of the Hospitals Act
  • Section 13 of the Adult Protection Act
  • Section 8A of the Public Trustee Act

The Public Trustee does not investigate or oversee the actions of an attorney who is acting under an Enduring Power of Attorney.

Note: If you are concerned about how an attorney is managing an estate under an Enduring Power of Attorney, you can ask the Supreme Court to review the situation under the Power of Attorney Act.

The Public Trustee may accept an appointment as the attorney under an Enduring Power of Attorney for these reasons:

  • all other options to help the adult have been tried
  • the adult can demonstrate why they need help managing their financial and legal affairs. This includes showing why they are at risk, financially or legally
  • the appointment comes into effect immediately
  • the adult makes the request or agrees with the request
  • the adult is capable of granting a Power of Attorney
  • the appointment includes all of the adult’s property and there is a large estate to manage
  • the Public Trustee is willing to accept the instructions given by the adult
  • the adult agrees to the Public Trustee’s fees
  • the Power of Attorney has an enduring clause, making it an Enduring Power of Attorney

The Public Trustee does not accept appointments to manage a single decision.

Ending an Enduring Power of Attorney

An Enduring Power of Attorney may end in one of these ways:

  • the adult is capable of managing their own estate and ends the relationship
  • the court appoints a guardian of the estate under the Incompetent Persons Act

Can the Public Trustee resign from acting as an attorney under an Enduring Power of Attorney?

The Public Trustee will consider resigning as an attorney under an Enduring a Power of Attorney for one of these reasons:

  • the appointment no longer benefits the adult
  • the adult is capable of managing their estate and there is a conflict between the adult and the Public Trustee that has not been resolved