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