Public Trustee and represented adults
Who is the Public Trustee?
How can people with mental disabilities be assisted with managing their finances?
What is the difference between a trustee and a guardian?
How does the Public Trustee become appointed as trustee under the Adult Guardianship and Trusteeship Act?
How does the Public Trustee manage an estate?
Does the Public Trustee charge an administration fee for managing a represented adult’s estate?
Does a trusteeship order cancel arrangements made by the represented adult before the date of the trusteeship order?
Can a represented adult prepare a will?
When does the Public Trustee's authority end?
What happens when a dependent adult client dies?
Further Information
Who is the Public Trustee?
The Public Trustee is appointed by the Alberta Government under the Public Trustee Act. Authority of the Public Trustee is found in the Public Trustee Act and other provincial statutes. The Public Trustee maintains offices in Calgary and Edmonton. The offices are staffed by trust administrators, lawyers, taxation officers, auditors and support staff.
The primary functions of the Public Trustee are to
- protect minors’ property interests;
- act as trustee for people with mental disabilities;
- act in the administration of deceased persons’ estates.
The Public Trustee’s policy is to only step in where it is necessary or appropriate to do so to protect the financial interests of vulnerable Albertans.
How can people with mental disabilities be assisted with managing their finances?
The type of assistance that may be provided to a person with a mental disability will depend on the nature of the disability, the type of property owned and the availability of those prepared to assist the disabled person.
The following are options for assistance:
Enduring Power of Attorney
A person, referred to as a donor, may make an Enduring Power of Attorney under the Powers of Attorney Act. An Enduring Power of Attorney
- designates a person, called an attorney,to administer the donor’s estate (property, contractual rights, entitlements, etc.), and
- can be prepared in such a way so that it takes effect immediately and continues to have effect after the donor becomes mentally incapacitated, or takes effect only after the donor becomes mentally incapacitated or some other event specified by the donor occurs.
A donor may designate a family member, friend, or financial institution (or a combination of them) to act as attorney.
The Public Trustee will not act as attorney.
The donor must be mentally competent in order to make an Enduring Power of Attorney.
Informal Trusteeship
Some people with mental disabilities have no property to manage but require assistance with budgeting money received from various government programs and with payment of monthly expenses. Provincial and federal benefit programs allow an “informal trustee” to be appointed, usually by having the proposed informal trustee sign a form known as an Undertaking. An informal trustee can be appointed to manage the benefits under the following programs: Old Age Security, Canada Pension Plan, Veterans Affairs, Assured Income for the Severely Handicapped (AISH), Human Resources and Employment (Income Support) and Alberta Seniors Benefit.
Potential informal trustees include family members, friends, landlords and representatives of care facilities. The Public Trustee will not act as informal trustee except under the AISH Benefits Administration Program. Further particulars about this program can be found under the AISH Benefit Administration Program section of the web site.
Formal Trusteeship
When a person with a mental disability has an estate to manage, it may become necessary for a trustee to be appointed under the Adult Guardianship and Trusteeship Act. The trustee can be an individual over 18 years of age, a trust company or the Public Trustee.
The Court may appoint a trustee for an adult person if the Court is satisfied that (a) the adult does not have the capacity to make decisions respecting any or all financial matter, (b) less intrusive and less restrictive alternative measures would not adequately protect the adult’s interests in respect of financial matters, and (c) it is in the adult’s best interests for a trustee to be appointed.
The Public Trustee will not apply to the Court to be appointed as a person’s trustee or consent to being appointed unless the Public Trustee is satisfied that (a) the person has assets requiring protection and ongoing management, and (b) there is no suitable person willing and able to act as trustee.
What is the difference between a trustee and a guardian?
A trustee manages the financial affairs of a represented adult.
A guardian makes personal decisions for the represented adult, such as decisions about health care, living arrangements, diet and dress, personal associations, licensing, education and training, social activities, employment and non-estate legal concerns. A guardian’s authority is limited to the powers described in the Court Order.
How does the Public Trustee become appointed as trustee under the Adult Guardianship and Trusteeship Act?
There are two ways the Public Trustee can become trustee for a represented adult:
- Appointment by the Court. The Court may appoint a trustee for a proposed represented adult if the Court is satisfied that (a) the adult does not have the capacity to make decisions respecting any or all financial matter, (b) less intrusive and less restrictive alternative measures would not adequately protect the adult’s interests in respect of financial matters, and (c) it is in the adult’s best interests for a trustee to be appointed. There must also be no other person willing, able and suitable to act as trustee.
- When the Public Trustee is notified (a) of the death of a trustee, (b) of the appointment of a guardian or trustee for a trustee, or (c) of the coming into effect, because of the incapacity of the trustee, of an enduring power of attorney or personal directive made by the trustee, then if there is no other trustee who has authority to act with respect to the property subject to the trusteeship, the Public Trustee may take possession and control of the property.
How does the Public Trustee manage an estate?
Once appointed, the Public Trustee takes control of a represented adult’s property, which may include real estate, vehicles, investments and personal property. Arrangements are made to collect the represented adult’s income and to pay their expenses.
The Public Trustee
does not have any funds to provide as a benefit to clients. The Public Trustee administers assets and income to which the represented adult is entitled. Any payments made by the Public Trustee to or on behalf of the represented adult must come out of the represented adult’s assets or income.
If a client’s income exceeds expenses, the surplus is accumulated by the Public Trustee in a trust account, which generates interest for the client.
By assuming control of a represented adult’s property, the Public Trustee does not seize or confiscate the assets or income. The Public Trustee manages the property for the benefit of the represented adult, taking into account the requirements of the represented adult, the needs of any dependants, and the nature of claims on the estate.
Does the Public Trustee charge an administration fee for managing a represented adult’s estate?
Yes. This fee may be reviewed by the Court.
The Public Trustee may also be reimbursed for expenses incurred while managing an estate. Such expenses may include legal fees, court costs, postage, photocopying and travel expenses.
The Public Trustee may also hire agents to assist with the administration of an estate. Examples include property managers, lawyers, appraisers, realtors, accountants and auctioneers. These agents are paid from the represented adult’s estate.
Does a trusteeship order cancel a Will made by the dependent adult before the date of the trusteeship order?
No. If a represented adult has made a valid Will, it is not revoked by the appointment of a trustee. This also applies to other arrangements that are intended to take effect on death, such as beneficiary designations under a life insurance policy, pension plan or retirement savings plan.
If the Public Trustee knows that a represented adult has made a Will, the Public Trustee strives to administer their property in a manner that respects the client’s intentions as expressed in their Will.
Can a represented adult prepare a Will?
Maybe. The criteria for determining whether a person lacks the legal capacity to make a valid Will are not identical to the criteria that determine whether they are in need of a trustee to look after their financial affairs. Therefore, a person might have the legal capacity to make a valid Will even though a trustee has been appointed to protect their financial interests.
When does the Public Trustee’s authority end?
The Public Trustee will manage a represented adult’s estate until the Public Trustee is discharged or replaced by a different trustee, or the represented adult dies.
If the Public Trustee acts under a Court Order, any interested party, including the represented adult or the Public Trustee, may apply to the Court to have the trusteeship terminated and the Public Trustee discharged. If the Public Trustee is discharged, control of the estate is returned to the former represented adult.
The Public Trustee may also be replaced as trustee. If the Public Trustee is replaced by another court-appointed trustee, the Public Trustee accounts to the new trustee and relinquishes control of the estate to the new trustee once an accounting has been reviewed and approved.
What happens when a represented adult client dies?
The Public Trustee continues to protect property subject to the trusteeship until the represented adult's personal representative (i.e. an executor appointed by the adult's Will or an estate administrator appointed by the court) exercises authority over the property.
Funeral arrangements are made by executors, family or friends. The Public Trustee does not make funeral arrangements. However, the Public Trustee will advance funds from the estate to cover reasonable funeral expenses.
To finalize the estate of a deceased represented adult, it is necessary for someone to apply to the Court to be confirmed or appointed as personal representative of the estate. The Public Trustee will turn over control of the estate to the personal representative after being provided with a Release or after accounts are reviewed and approved by the Court.
Where may further information be obtained?
You may contact either office of the Public Trustee with general questions about represented adult estate matters. If you are a long-distance caller within Alberta, you may call toll free by telephoning 310-0000 and then dialling 780-427-2744 (for the Edmonton office) or 403-297-6541 (for the Calgary office).
Additional general information may also be obtained through Dial-A-Law at 1-800-332-1091.
The Public Trustee cannot give legal advice.
Your best source of information about a specific trust not held by the Public Trustee is your lawyer.
