Excluding the Public Trustee's Role in Estate Management: Power of Attorney and Hospitals Act

Note this article provides legal information, not legal advice. Reading this article should not be construed as obtaining legal advice from Ross Estate Law.

A Power of Attorney (POA) can be designed to include specific provisions regarding the management of the donor's estate, particularly in relation to circumstances that may involve hospital or psychiatric care. One such provision allows the exclusion of the Public Trustee from managing the estate of the donor, even when a person may be declared unable to manage their own affairs.

Excluding the Public Trustee (Section 59 of the Hospitals Act)

Under normal circumstances, when a person in a hospital or psychiatric facility is declared unable to manage their own estate, the Public Trustee steps in to manage their property and affairs. This process is outlined in Section 59 of the Hospitals Act. However, a Power of Attorney can contain an express provision that excludes the operation of Section 59(2), meaning the attorney appointed under the POA would take on the responsibility for managing the estate instead of the Public Trustee.

Key Provisions of the Hospitals Act Related to the Public Trustee

1. Notice to the Public Trustee (Section 59(1)) If a declaration of competency shows that a person in a hospital or psychiatric facility is incapable of managing their estate, the administrator of the hospital or CEO of the psychiatric facility is required to notify the Public Trustee as soon as possible. This notice triggers the involvement of the Public Trustee in managing the person's estate.

2. Powers of the Public Trustee (Section 59(2)) If there is no guardian in place and the Public Trustee believes intervention is necessary, the Public Trustee may take possession of the person’s property and effects. The Public Trustee is then empowered to manage, preserve, and protect the person's assets, using funds from the estate as necessary to maintain the property. The Public Trustee is granted all authority needed for this role, as long as it aligns with the Public Trustee Act and other applicable laws.

Power of Attorney Provision Excluding the Public Trustee

However, a Power of Attorney can explicitly exclude the Public Trustee's involvement under these circumstances. If the attorney wishes to take over the management of the estate, the attorney will conduct the administration instead of the Public Trustee. This provision is particularly useful when the donor has confidence in their appointed attorney and prefers to keep control of their affairs within their circle rather than involving a public authority.

Conclusion

Including a provision in a Power of Attorney that excludes the Public Trustee from managing the donor's estate under Section 59 of the Hospitals Act gives the appointed attorney the authority to act on the donor's behalf in managing their property and finances during periods of incapacity. This provision ensures that the donor's preferences regarding the administration of their estate are honoured, even in situations where they are unable to make decisions due to health-related reasons.

Please note that the information provided in this blog post is for general informational purposes only and is not intended as legal advice. Reading this post does not create an attorney-client relationship, and the information shared here should not be relied upon as a substitute for professional legal counsel. If you require personalized legal advice regarding estate planning or any related matters, we encourage you to schedule a consultation with Ross Estate Law to discuss your unique circumstances.