The B.C. Public Guardian and Trustee (“PGT”) recently issued its Annual Report for 2012-2013.
From 2012–2013, the PGT served approximately 30,300 clients and managed approximately $893 million of client assets. Most PGT clients have some vulnerability often resulting from their status as minors or mental incapability. Clients can include:
• Children in continuing care of the province;
• Children with trust funds;
• Children whose guardians wish to settle a claim for damages on behalf of the child;
• Seniors and other adults who require assistance with decision making due to mental illness, disease, developmental disability or brain injury;
• Vulnerable adults who are experiencing abuse, neglect, or self-neglect;
• Adults without family or others who are incapable of making a health care decision;
• Heirs and beneficiaries of estates of deceased persons;
• Missing persons; and
• Beneficiaries of trusts.
The PGT’s mandate is three-fold. The first aspect of the mandate is to protect the legal and financial interests of children and youth under the age of 19. The second aspect is to protect adults who require assistance in decision making through protection of their legal rights, financial interests and personal care interests. The final aspect is to administer estates of deceased and missing persons and to act as a trustee for those estates.
All have potential implications both for wills, estate, and trust administration and litigation.
PGT Involvement with Children and Youth Under 19
The PGT receives trust funds on behalf of minors in a number of circumstances. Two situations that often relate to estate planning are: 1) the receipt of funds where a minor is a beneficiary, and 2) the minor’s receipt of funds as a share of an estate or proceeds of life insurance, where no trustee is named to administer those funds.
To protect the property interests of minors in estates and trusts, the PGT also reviews a number of applications related to wills, trust, and estate administration litigation. Applications to administer an estate of a deceased person, or to conduct wills or trust variation litigation, are reviewed when a minor is a beneficiary or may be entitled to a share in an estate or trust. Where there is reason to believe that any interest of a minor is at risk, the PGT will investigate on his or her behalf.
It is important for both testators and their personal representatives to note the role of the PGT, particularly when wills, trust settlements, and other testamentary documents contemplate granting benefits to those under 19. Litigants must also be cognizant of the PGT’s potential involvement when engaging in wills and trust litigation impacting those under 19, whether it is under the Wills Variation Act (soon to be consolidated into the new Wills, Estates and Succession Act, which comes into force March 31, 2014), the Trust and Settlement Variation Act, or other related legislation.
The PGT as a Representative to Living Adults
The PGT also acts for adult clients when other appropriate substitute decision makers are not available. Most adult clients have impaired mental capabilities, while others have mental illnesses, developmental disabilities or brain injuries. PGT involvement with adult clients is typically triggered by reports from concerned friends, relatives or professionals to assess whether PGT services are required. These often include reports of abuse or neglect of incapable adults.
The PGT may act in a number of different roles for adult clients. These can include committee of estate, committee of person, power of attorney, representative, estate administrator, trustee, or litigation guardian.
Committees are appointed by the court to manage the legal, financial and/or personal interests of an incapable adult. The PGT may be appointed as committee, or private committees (usually family or friends) may fulfill that management role. If private committees are appointed, the PGT will review their financial accounts and investigate any concerns that they may not be complying with their duties.
Committees and personal representatives under a representation agreement are often empowered as substitute decision makers. If there is no committee, personal representative, or qualified individuals (such as a relative or close friend), the PGT may appoint another substitute decision maker or act as the decision maker itself.
When your estate planning involves providing contingencies in the event of possible incapability, all involved parties should be aware of the PGT’s potential oversight over those designated as your representatives and the role the PGT could play helping manage your affairs, if you do become incapable. If you are a litigant seeking committeeship over, or a representative under a representation agreement for, the affairs of someone that you care about, you must also recognize the continuing oversight role of the PGT. Everyone concerned with the welfare of the incapable should be aware of the PGT’s complaints investigation and response role, with respect to suspected abuse (physical and financial), neglect, or self-neglect of incapable adults, and avail of it when they suspect any of those circumstances.
The PGT as a Potential Representative After Death
The PGT administers estates when the executor, heir, beneficiary or other eligible persons are unable to do so. The PGT also administers estates of deceased persons when the heir or beneficiary is a client under their authority for other reasons, such as in the case of minors or incapable adults. The PGT may voluntarily agree to appointment as executor under a will.
In addition, the PGT may act as a trustee where options to appoint a family member or trust company are not appropriate. These trusts are typically discretionary regarding payment of income and capital, so the funds are distributed consistent with the PGT’s discretion as trustee in accordance with the terms of the trust agreement.
The PGT may also agree to act as litigation representative for specific legal actions brought against an estate where there is no executor, administrator or other person to act. If the estate does not have assets, the PGT role is typically limited to accepting service of legal documents. Where an estate does have assets, the PGT will apply for letters of administration and use that authority to conduct the litigation.
In conclusion, testators and settlors should be aware that the PGT is a potential resource for administering their estates or trusts. Litigants should recognize that the PGT may step in and conduct wills, estate, and trust litigation where other suitable legal representatives are not present.