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Public Guardian and Trustee Act

R.S.O. 1990, Chapter P.51

Consolidation Period: From November 14, 2017 to the e-Laws currency date.

Last amendment: 2017, c. 20, Sched. 8, s. 123.

Public Guardian and Trustee, staff

1 (1) The Lieutenant Governor in Council may appoint a member of the bar of Ontario of at least ten years’ standing to be Public Guardian and Trustee, may appoint one or more deputies to act for him or her and may appoint such other persons as employees in the office of the Public Guardian and Trustee as are necessary for the purposes of this Act.

Corporation sole

(2) The corporation sole known as the Public Trustee is continued under the name of Public Guardian and Trustee.

Same

(3) The Public Guardian and Trustee has perpetual succession and an official seal, and may sue and be sued in his or her corporate name.  1992, c. 32, s. 25 (1).

Powers and duties of deputy

2 (1) A deputy of the Public Guardian and Trustee has the powers and duties that the Public Guardian and Trustee delegates to him or her.  1992, c. 32, s. 25 (3).

Absence of Public Guardian and Trustee

(2) If the Public Guardian and Trustee is unable to act because of absence or illness, the deputy who was appointed first shall act in his or her place.  1992, c. 32, s. 25 (3).

Vacancy

(3) If the Public Guardian and Trustee dies or resigns the office, the deputy who was appointed first shall act as Public Guardian and Trustee until a successor is appointed.  1992, c. 32, s. 25 (3).

Other delegation

(4) The Public Guardian and Trustee may in writing delegate any of his or her powers or duties to an employee in his or her office.  1996, c. 2, s. 75 (1).

Power to act as corporate director

(5) Despite paragraph 3 of subsection 118 (1) of the Business Corporations Act, the Public Guardian and Trustee may act as a director of a corporation in which,

(a) a deceased person was the sole shareholder and for whose estate the Public Guardian and Trustee acts as estate trustee if it is necessary and expedient to do so to protect or preserve the interest of the deceased person’s estate in the corporation or to provide for the orderly winding-up or dissolution of the corporation; or

(b) a mentally incapable person is the sole shareholder and for whom the Public Guardian and Trustee acts as the guardian of property if it is necessary and expedient to do so to protect or preserve the interest of the mentally incapable person in the corporation or to provide for the orderly winding-up or dissolution of the corporation.  2006, c. 34, s. 20 (1).

When Attorney General to act

3 In the case of the illness or absence of the Public Guardian and Trustee or if the office becomes vacant and no deputy has been appointed, the Attorney General is by virtue of his or her office Public Guardian and Trustee until another appointment is made.  R.S.O. 1990, c. P.51, s. 3; 1992, c. 32, s. 25 (2).

Salaries

4 The salaries or other remuneration of the Public Guardian and Trustee and of the employees in his or her office shall be fixed by the Lieutenant Governor in Council and may be paid out of the money that is appropriated by the Legislature for that purpose or out of any fund established under this Act, as the Lieutenant Governor in Council from time to time may direct.  R.S.O. 1990, c. P.51, s. 4; 1992, c. 32, s. 25 (2).

Duties

5 (1) The Public Guardian and Trustee shall discharge the duties imposed upon him or her by any Act of the Legislature or by the Lieutenant Governor in Council, and the Public Guardian and Trustee shall also make inquiries from time to time as to property that has escheated, or become forfeited for any cause to the Crown, or in which the Crown in right of Ontario may be interested.  R.S.O. 1990, c. P.51, s. 5; 1992, c. 32, s. 25 (2, 4).

Accountant of the Superior Court of Justice

(2) The Public Guardian and Trustee shall carry out the duties of the Accountant of the Superior Court of Justice and shall designate an employee appointed under subsection 1 (1) to hold that office.  1997, c. 23, s. 11 (1); 2000, c. 26, Sched. A, s. 14 (1).

Same

(3) The Accountant of the Superior Court of Justice is an officer of that court.  2000, c. 26, Sched. A, s. 14 (2).

Immunity

5.1 (1) No proceeding for damages shall be commenced against the Public Guardian and Trustee for anything done or omitted in good faith in connection with his or her powers and duties under an Act.  1992, c. 32, s. 25 (5).

Vicarious liability

(2) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (1) does not relieve the Crown of any liability to which it would otherwise be subject.  1992, c. 32, s. 25 (5).

Immunity when acting as director

(3) Without limiting subsection (1), if, in the course of the exercise or intended exercise of any power or the performance of any duty under this Act or any other Act, the Public Guardian and Trustee becomes a director of a corporation, the Public Guardian and Trustee shall not be liable as a director under any Act in respect of any debt or other liability of the corporation, or any claim against the corporation, or for any act or omission by the corporation or by the Public Guardian and Trustee acting in his or her capacity as director, if he or she has acted honestly and in good faith with a view to the best interests of the corporation.  2006, c. 34, s. 20 (2).

Indemnity

(4) If the Public Guardian and Trustee acts as a director of a corporation on behalf of a deceased person’s estate or a mentally incapable person, the Public Guardian and Trustee may obtain an indemnity from the estate of the deceased or mentally incapable person against all costs, charges and expenses, including any amount paid to settle an action or satisfy a judgment, reasonably incurred by him or her in respect of any civil, criminal or administrative action or proceeding to which he or she is made a party by reason of being or having been a director of the corporation if he or she has acted honestly and in good faith with a view to the best interests of the corporation.  2006, c. 34, s. 20 (2).

Application of Public Inquiries Act, 2009

6 Section 33 of the Public Inquiries Act, 2009 applies to an inquiry under section 5 by the Public Guardian and Trustee.  2009, c. 33, Sched. 6, s. 81.

Estates and trusts

7 (1) The Public Guardian and Trustee may be granted letters probate or letters of administration and, subject to subsection (1.1), may be appointed as a trustee under any Act or as trustee of any will or settlement or other instrument creating a trust or duty in the same manner as if he or she were a private trustee.

Consent required

(1.1) The Public Guardian and Trustee shall not be appointed as a trustee, by a court or otherwise, without his or her consent in writing.  1996, c. 2, s. 75 (2).

May be appointed sole trustee

(2) The Public Guardian and Trustee may be appointed sole trustee although the trust instrument contemplates two or more trustees, and any person who is a trustee with the Public Guardian and Trustee may at any time retire from the trust upon passing the person’s accounts and paying over the balance.  R.S.O. 1990, c. P.51, s. 7 (2); 1992, c. 32, s. 25 (2).

Fees

8 (1) The Public Guardian and Trustee may charge fees for anything done by the Public Guardian and Trustee under this or any other Act.  1996, c. 2, s. 75 (3).

Fees

(1.1) The Public Guardian and Trustee may charge fees for services rendered and things done by his or her employees and agents.  1997, c. 23, s. 11 (2).

Reimbursement for expenses

(1.2) The Public Guardian and Trustee is entitled to be reimbursed for expenses incurred by the Public Guardian and Trustee or his or her employees or agents in respect of services rendered and things done under this or any other Act.  2000, c. 26, Sched. A, s. 14 (3).

Establishing fees

(2) The Public Guardian and Trustee shall establish the fees, subject to the approval of the Attorney General.  1996, c. 2, s. 75 (3).

Basis of calculation

(3) The fees may be calculated on a flat rate basis for each thing done, on an hourly basis, on the basis of actual costs incurred by the Public Guardian and Trustee, as a percentage of the income or capital of an estate, or in any other manner that the Public Guardian and Trustee considers appropriate.  1996, c. 2, s. 75 (3).

Deduction of fees and expenses

(3.1) The Public Guardian and Trustee may deduct fees and expenses from the money held for a person, estate or trust.  2000, c. 26, Sched. A, s. 14 (3).

Discretionary reduction or waiver

(3.2) The Public Guardian and Trustee may, in his or her discretion, reduce the amount of a fee or waive its payment in a case of hardship or in other appropriate circumstances.  2001, c. 9, Sched. B, s. 12 (1).

Same

(3.3) A reduction or waiver under subsection (3.2) may be in respect of a person or a class of persons.  2001, c. 9, Sched. B, s. 12 (1).

Other Acts

(4) This section prevails over a provision relating to fees in any other Act, except subsection 40 (3) of the Substitute Decisions Act, 1992.  1996, c. 2, s. 75 (3).

Lien re fees and expenses, advances, etc.

8.1 (1) The Public Guardian and Trustee has a lien on the real and personal property of a person, estate or trust for whom he or she acts or has acted, for the following amounts:

1. Fees and expenses charged to the person, estate or trust under section 8.

2. An amount advanced for or on behalf of the person, estate or trust or for the support of dependants.

3. The amount of a liability incurred for a purpose referred to in paragraph 2.  1997, c. 23, s. 11 (3); 2000, c. 26, Sched. A, s. 14 (4).

Real property

(2) In the case of real property, the Public Guardian and Trustee may register in the proper land registry office a notice claiming a lien and identifying the real property against which it is claimed.  1997, c. 23, s. 11 (3).

Costs of passing of accounts

8.2 If the Public Guardian and Trustee holds money of an estate or trust and has applied or proposes to apply to pass its accounts, he or she may withhold an amount sufficient to secure his or her costs of the passing of accounts.  1997, c. 23, s. 11 (3).

Administration fund

9 (1) All fees, and other income of the office of every description shall be paid by the Public Guardian and Trustee into a separate account as prescribed by the regulations made under this Act.  R.S.O. 1990, c. P.51, s. 9 (1); 1992, c. 32, s. 25 (2); 1996, c. 2, s. 75 (4).

Payments out of account

(2) There shall be paid out of such account the salaries or other remuneration and the expenses of the Public Guardian and Trustee and the employees in his or her office.  R.S.O. 1990, c. P.51, s. 9 (2); 1992, c. 32, s. 25 (2).

Assurance fund

(3) From any surplus in such account there may be established an assurance fund as provided by the regulations made under this Act.  R.S.O. 1990, c. P.51, s. 9 (3).

Money received

(4) Despite the Crown Administration of Estates Act, the Lieutenant Governor in Council may direct that money coming to the hand of the Public Guardian and Trustee under that Act shall be placed to the credit of such account and applied to the purposes of subsection (2).  R.S.O. 1990, c. P.51, s. 9 (4); 1992, c. 32, s. 25 (2).

Payment over of balances

(5) The Lieutenant Governor in Council may from time to time direct the payment into the Consolidated Revenue Fund of any balance at the credit of such account.

Manner of paying into and out of account

(6) Payments into and out of such account shall be made in such manner and subject to such conditions as are prescribed in the regulations made under this Act.  R.S.O. 1990, c. P.51, s. 9 (5, 6).

Delivery up of property

10 (1) Where the Public Guardian and Trustee acting in any capacity holds property of a person who has died and to which the person’s personal representative is entitled, the production to the Public Guardian and Trustee of,

(a) an authenticated copy of the probate of the will of the deceased, or of letters of administration of his or her estate, or of letters of verification of heirship, or of the act of curatorship or tutorship, granted by any court in Canada having power to grant the same, or by any court or authority in a country of the Commonwealth or any colony, dependency or protectorate of any such country, or of any testament-testamentar or testamentdative expede in Scotland;

(b) an authentic copy of the will of the deceased, if it is in notarial form according to the law of the Province of Quebec; or

(c) if the deceased died elsewhere than in a place mentioned in clause (a), any authenticated copy of the probate of his or her will, or of letters of administration of his or her property, or other document of like import, granted by any court or authority having the requisite power in such matters,

is sufficient justification and authority for the delivering of such property in pursuance of and in conformity with such probate, letters of administration, or other document.  R.S.O. 1990, c. P.51, s. 10 (1); 1992, c. 32, s. 25 (2, 6).

Deposit of copy of document

(2) When the authenticated copy or other document of like import is produced to the Public Guardian and Trustee under subsection (1), there shall be deposited with him or her a true copy thereof.  R.S.O. 1990, c. P.51, s. 10 (2); 1992, c. 32, s. 25 (2).

Exception, property $20,000 or less in value

(3) Where the Public Guardian and Trustee acting in any capacity holds property, not exceeding $20,000 in value, of a person who has died, the Public Guardian and Trustee has discretion, on receiving evidence satisfactory to him or her, to distribute the property to the person’s heirs or personal representative without requiring compliance with subsection (1).

Protection from liability

(4) The Public Guardian and Trustee is not liable for a distribution made under subsection (3) that is carried out prudently and in good faith.  1997, c. 23, s. 11 (4).

Admissibility of material from records of the Public Guardian and Trustee

Definitions

10.1 (1) In this section,

“copy of a record of the Public Guardian and Trustee” includes,

(a) a photocopy of a hard copy,

(b) a print-out of a document or of other information that is stored electronically, and

(c) a print from photographic film; (“copie d’un dossier du tuteur et curateur public”)

“record of the Public Guardian and Trustee” means a document or other information that the Public Guardian and Trustee creates or receives in any medium and records or stores in that medium or in any other medium. (“dossier du tuteur et curateur public”)  2006, c. 19, Sched. B, s. 18.

Copy as evidence

(2) A copy of a record of the Public Guardian and Trustee, accompanied by the certificate described in subsection (3), is admissible in evidence and has the same probative force as the information in the record of the Public Guardian and Trustee would itself have had if it had been proved in the ordinary way.  2006, c. 19, Sched. B, s. 18.

Certificate

(3) The certificate accompanying the copy shall,

(a) identify the record of the Public Guardian and Trustee and certify that the copy is a true copy or contains the same information as the record of the Public Guardian and Trustee; and

(b) be signed by the Public Guardian and Trustee and sealed with his or her official seal.  2006, c. 19, Sched. B, s. 18.

Storage and transfer of information

10.2 (1) The Public Guardian and Trustee may store information in any form or medium and may at any time transfer or re-transfer it to another form or medium, in whole or in part.

Retention of earlier record or document

(2) It is not necessary for the Public Guardian and Trustee to retain a record or an original document if the information it contains has been stored in some other form or medium.  1997, c. 23, s. 11 (5).

Access to personal information

10.3 (1) For the purpose of identifying and locating minors and other persons who may be entitled to assets held by the Accountant of the Superior Court of Justice, the Public Guardian and Trustee is entitled to collect personal information from any source and to retain, use and disclose the personal information.  2009, c. 33, Sched. 2, s. 62 (1).

Institution, mandatory disclosure

(2) Every institution shall disclose to the Public Guardian and Trustee information requested under subsection (1).  2002, c. 18, Sched. A, s. 17 (1); 2009, c. 33, Sched. 2, s. 62 (2).

Exception, Ministry of Health and Long-Term Care and related institutions

(3) Subsection (2) does not apply to the Ministry of Health and Long-Term Care or to any other institution of which the Minister of Health and Long-Term Care is the head.  2002, c. 18, Sched. A, s. 17 (1).

Personal Health Information Protection Act, 2004

(3.1) For greater certainty, subsection (3) does not affect the disclosure of personal health information by the Minister of Health and Long-Term Care under clause 43 (1) (e) of the Personal Health Information Protection Act, 2004.  2009, c. 33, Sched. 2, s. 62 (3).

Others, optional disclosure

(4) A person other than an institution may disclose to the Public Guardian and Trustee information requested under subsection (1).  2002, c. 18, Sched. A, s. 17 (1); 2009, c. 33, Sched. 2, s. 62 (4).

Application of subs. (4)

(5) Subsection (4) also applies to unincorporated associations and any other public and private entities.  2002, c. 18, Sched. A, s. 17 (1).

(6) Repealed:  2009, c. 33, Sched. 2, s. 62 (5).

Definitions

(7) In this section,

“head” has the same meaning as in the Freedom of Information and Protection of Privacy Act; (“personne responsable”)

“institution” has the same meaning as in the Freedom of Information and Protection of Privacy Act; (“institution”)

“personal health information” has the same meaning as in the Personal Health Information Protection Act, 2004; (“renseignements personnels sur la santé”)

“personal information” has the same meaning as in the Freedom of Information and Protection of Privacy Act. (“renseignements personnels”)  2002, c. 18, Sched. A, s. 17 (1); 2009, c. 33, Sched. 2, s. 62 (6).

Conflict

(8) This section applies despite anything in the Freedom of Information and Protection of Privacy Act or in any other Act or regulation.  2002, c. 18, Sched. A, s. 17 (1).

Same

(9) Subsection 39 (2) of the Freedom of Information and Protection of Privacy Act does not apply when information is collected under this section.  2002, c. 18, Sched. A, s. 17 (1).

(10) Repealed:  2009, c. 33, Sched. 2, s. 62 (7).

Losses, how to be made good

11 All sums required to discharge any liability for a loss that the Public Guardian and Trustee, if he or she were a private trustee, would be personally liable to discharge, shall be made good out of the assurance fund or out of the Consolidated Revenue Fund, but neither the Public Guardian and Trustee nor any of his or her employees nor the assurance fund is liable for any loss that would not have imposed liability upon a private trustee.  R.S.O. 1990, c. P.51, s. 11; 1992, c. 32, s. 25 (2).

Charitable and public trusts

12 The Public Guardian and Trustee may accept and administer any charitable or public trust.  R.S.O. 1990, c. P.51, s. 12; 1992, c. 32, s. 25 (2).

Investment of property

13 Except as provided by this Act and the Substitute Decisions Act, 1992, sections 27 to 31 of the Trustee Act apply, with necessary modifications, to the investment of any property that is available for investment by the Public Guardian and Trustee.  1998, c. 18, Sched. B, s. 13; 2002, c. 18, Sched. A, s. 17 (2).

Interest

13.1 (1) Subject to the approval of the advisory committee referred to in clause 14 (g), the Public Guardian and Trustee has power to fix the rates of interest to be paid on money in his or her hands.

Criteria for rates

(2) Rates of interest may be fixed on the basis of one or more of the following factors: the type of account, the amount of money held for a person, estate or trust and the length of time during which it is held.

Publication

(3) The Public Guardian and Trustee shall publish in The Ontario Gazette notice of any change in the interest rates.  1997, c. 23, s. 11 (6).

Note: On the day subsection 4 (1) of the Not-for-Profit Corporations Act, 2010 comes into force, the Act is amended by adding the following section: (See: 2017, c. 20, Sched. 8, s. 123 (1))

Not-for-Profit Corporations Act, 2010

13.2 The Not-for-Profit Corporations Act, 2010 does not apply to the Public Guardian and Trustee except as is prescribed by regulation. 2017, c. 20, Sched. 8, s. 123 (1).

Regulations

14 The Lieutenant Governor in Council may make regulations,

(a) respecting the office of Public Guardian and Trustee, imposing duties on the Public Guardian and Trustee in addition to those imposed by this Act, and prescribing the trusts or duties he or she is authorized to accept or undertake under this Act, and the security, if any, to be given by the Public Guardian and Trustee and his or her employees;

(b) respecting the application and disposal of fees and other income of the office of the Public Guardian and Trustee;

(c) respecting the transfer to and from the Public Guardian and Trustee of any property;

(d) respecting the accounts to be kept;

(e) for the establishment of an assurance fund for the purpose of meeting any losses for which the office of Public Guardian and Trustee may be liable;

(f) respecting the functions of the Accountant of the Superior Court of Justice, including, without limiting the generality of the foregoing,

(i) prescribing the officer or employee to whom money paid into the Superior Court of Justice shall be paid,

(ii) respecting money paid into court and governing its payment into and out of court,

(iii) governing the management and investment of money paid into court,

(iv) providing for the vesting of money paid into court and of any securities in which the money is invested,

(v) prescribing the officer or employee in whose name mortgages, securities, other instruments and other personal property taken under orders of the Superior Court of Justice and mortgages, securities, other instruments and other personal property taken as security in respect of a proceeding in that court shall be taken,

(vi) respecting the deposit and custody of mortgages, securities, other instruments and other personal property mentioned in subclause (v) and the duties, if any, that the officer or employee in whose name they are taken has in respect of them;

(g) for constituting a committee for the purposes of section 13.1 and to advise the Public Guardian and Trustee generally on investments and other property management issues;

(h) for constituting a committee to advise the Public Guardian and Trustee generally on guardianship matters;

(i) for constituting committees to advise the Public Guardian and Trustee generally on other matters;

(j) for providing for the remuneration, by fees or otherwise, of the members of the advisory committees;

(k) establishing criteria for determining hardship for the purposes of subsection 8 (3.2).  R.S.O. 1990, c. P.51, s. 14; 1992, c. 32, s. 25 (2, 8, 9); 1996, c. 2, s. 75 (5); 2000, c. 26, Sched. A, s. 14 (5); 2001, c. 9, Sched. B, s. 12 (2).

Note: On the day subsection 4 (1) of the Not-for-Profit Corporations Act, 2010 comes into force, section 14 of the Act is amended by adding the following clause: (See: 2017, c. 20, Sched. 8, s. 123 (2))

(l) prescribing provisions of the Not-for-Profit Corporations Act, 2010 that apply to the Public Guardian and Trustee and prescribing any modifications, if necessary.

Advisory committees

15 (1) The members of the advisory committees of the Public Guardian and Trustee are visitors of his or her office.  1992, c. 32, s. 25 (10).

Suggestions and recommendations

(2) Each advisory committee may make suggestions and recommendations, in connection with its area of jurisdiction, with regard to the policies of the office of Public Guardian and Trustee.  1992, c. 32, s. 25 (10).

Consultation

(3) The Public Guardian and Trustee may consult with the committees on the policies of his or her office.  1992, c. 32, s. 25 (10).

Annual reports

(4) Each advisory committee shall make an annual report to the Attorney General on the performance of its duties and the exercise of its powers.  1992, c. 32, s. 25 (10); 2009, c. 33, Sched. 2, s. 62 (8).

Security by Public Guardian and Trustee not necessary

16 Despite any rule or practice or any Act requiring security, it is not necessary for the Public Guardian and Trustee to give any security for the due performance of his or her duty as executor, administrator, trustee, committee, or in any other office to which the Public Guardian and Trustee may be appointed by order of any court or under any statute.  R.S.O. 1990, c. P.51, s. 16; 1992, c. 32, s. 25 (2).

Audit

17 The Auditor General shall examine and report upon the accounts and financial transactions of the Public Guardian and Trustee.  R.S.O. 1990, c. P.51, s. 17; 1992, c. 32, s. 25 (2); 2004, c. 17, s. 32.

Matters confidential

18 Every person employed in the performance of the duties imposed upon the Public Guardian and Trustee by this or any other Act or by the Lieutenant Governor in Council shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of such employment and shall not communicate any such matters to any person other than to a person legally entitled thereto or to the person’s legal counsel except as may be required in connection with the administration of this Act and the regulations under this Act or any proceedings thereunder.  R.S.O. 1990, c. P.51, s. 18; 1992, c. 32, s. 25 (2).

Report

19 The Public Guardian and Trustee shall, at the end of each fiscal year, prepare a report on his or her operations and submit it to the Attorney General who shall submit the report to the Lieutenant Governor in Council and then lay the report before the Assembly, if it is in session or, if not, at its next session.  R.S.O. 1990, c. P.51, s. 19; 1992, c. 32, s. 25 (2).

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