The Public Trustee Act allows the Public Trustee to act as a litigation guardian for a child or a person who is not capable of managing their affairs in a legal proceeding before the court.
The Public Trustee is also authorized to represent a deceased estate in a legal proceeding before the court under the Survival of Actions Act.
The Public Trustee MUST consent to any appointment to be a litigation guardian for a child or a person not capable of managing their affairs, or the legal representative for a deceased person under the Survival of Actions Act.
All requests for the Public Trustee to become involved in such matters should be done in writing.
Due to budget and staff restrictions, the Public Trustee almost never consents to be a litigation guardian for any child, or for any adult who is not capable of managing their affairs. There is no Official Guardian or Office in Nova Scotia that is responsible or financed to take on these types of representative capacities.
In the extremely rare case where the Public Trustee does consent to be appointed, the Public Trustee cannot accept any responsibility for paying the cost of the lawyer or the disbursements incurred in carrying on the litigation.
The Public Trustee does regularly consent to be appointed to represent a deceased defendant under the Survival of Actions Act, and this procedure is described in detail in the section following.
Due to the fact the deceased’s public liability insurer or the Facility Association may be relied upon for a vigorous defence of any automobile accident claim, the Public Trustee, almost without exception, will consent to be appointed to represent the estate of a deceased tortfeasor for the purposes of an intended action that arises out of a motor vehicle collision or upset.
The Public Trustee expects every request, whether made by letter, telephone, or otherwise, to include the following:
Band Governance and Estates Officer, Atlantic Region
PO Box 160, 40 Havelock Street
Amherst, NS B4H 3Z3
Your letter to the Public Trustee should note the date you contacted Indigenous and Northern Affairs Canada to verify that the estate is not being administered by the department.
The Public Trustee charges a fee of $200.00 plus tax (for a total of $230.00) as an administration charge for consenting to be the representative of a deceased in a matter under the Survival of Actions Act. This administration charge is payable by cheque to the Public Trustee. The cheque must be received by the Public Trustee before the lawyer files the Public Trustee’s consent at the Court.
The Public Trustee is not interested in forcing solicitors to comply with a strict procedure and will not insist upon having all of the above information before delivering a consent to act. However, the information specified in items 1, 2, 3, 4, and 6 will be required before the Public Trustee can draft and deliver an informed consent. In most cases the consent will relate to an “Intended Proceeding,” and the plaintiff’s solicitor will apply for and get an order to appoint the Public Trustee before issuing the Notice of Action and Statement of Claim.
Where an action is already in progress, before the Public Trustee is invited to represent a deceased’s estate that is named or intended to be named as defendant, a copy of all pleadings issued or filed to date should be delivered to the Public Trustee with the request for its consent. The consent will then relate to “an Action Pending” between the parties named, and described in the heading or style established in the originating documents. The plaintiff’s solicitor, when applying under Section 7 of the Act, should ask for and get an executory clause in the order to the effect that “The heading or style of this cause is amended and all subsequent pleadings filed and delivered herein shall be headed or styled as
The Estate of ____________________________, deceased,
Represented by the Public Trustee, and etc.
This can be cumbersome. It is always easier when the Public Trustee’s Consent and the Survival of Actions Act Order are obtained as for an “intended action” before the Notice of Action and Statement of Claim are issued. Sometimes the plaintiff’s solicitor who needs the Public Trustee’s Consent and a Court Order pursuant to Section 7 in an “action pending,” can avoid considerable trouble and vexation by simply discontinuing the pending action and starting over. This can be done only if there is no Limitations of Actions Act problem or risk of incurring costs in so doing.
Please do not draft a form of Consent. The Consent will be drafted by the Public Trustee’s Office.
Every solicitor who requests Consent may expect the Public Trustee to take these steps:
You, the plaintiff’s solicitor, will apply for the Order by EX PARTE application unless an action has already been started between two or more of the parties involved. If an Order has been started, your Notice will be a Chambers Motion, if notice to any party is necessary. In any event, your application will be supported by your own affidavit. Your affidavit will set out a brief summary of the facts attending the accident and also the ingredients specified in Section 7 of the Survival of Actions Act. These entitle you to ask that a representative of the estate be appointed.
As soon as the following documents are received, item 2 will be promptly returned to you endorsed with the Public Trustee’s acknowledgment of service:
The plaintiff’s action will then be at exactly the same stage of pleading as it would be if the deceased were alive and had been served personally.
If you are in contact with a solicitor who has been instructed by an insurer to defend the action in the name of the defendant estate, and who is authorized and willing to accept service on behalf of the defendant, you may, at your discretion, serve the defendant’s solicitor instead of on the Public Trustee. Please inform the Public Trustee that you have done so and deliver a copy of the documents to the Public Trustee for its file.
Please do not make the mistake that many solicitors make of treating the incumbent Public Trustee as the solicitor of record for the defendant estate. The Public Trustee is, in fact, little more than a target for service of originating documents.
Neither the incumbent Public Trustee nor any solicitor employed in the Public Trustee’s office will file a defence or appear or participate in any aspect of the proceeding, unless expressly ordered by the court to perform some specific function. The heirs-at-law or personal representatives of the deceased, the insurers of the deceased’s vehicle, or the Facility Association, may appoint and pay a solicitor to act as solicitor of record for the estate of the deceased as represented by the Public Trustee. If this happens, the solicitor will be retained and instructed by the persons who appoint them, not by the Public Trustee. The Public Trustee will generally ignore or, at most, simply acknowledge receipt of any documents or pleadings delivered after a solicitor for the defendant estate is on record.
It is the responsibility of the plaintiff’s solicitor to give all necessary notices to the Facility Association or to any insurer who may be at risk.
When drafting pleadings and documents, lawyers should remember that the Public Trustee is a corporation sole with perpetual succession and gender neuter. It is hardly ever necessary to mention the incumbent Public Trustee or acting Public Trustee by name.
Finally, the Public Trustee is unlikely to accept an invitation to represent the estate of a deceased tortfeasor who did not “tort with a motor vehicle,” or to represent the estate in circumstances where the liability incurred is not the liability of an insurer.
Here is a sample Order (PDF) appointing the Public Trustee as the representative of a deceased estate under the Survival of Actions Act.