The following definitions apply in this Act. 2006, c.16, s.151; 2012, c.14, s.1; 2012, c.39, s.126; 2014, c.26, s.64; 2016, c.37, s.162; 2019, c.2, s.125; 2020, c.25, s.95; 2022, c.28, s.46
“Board” means the Board of Directors of the Commission.(conseil)
“Commission” means the New Brunswick Legal Aid Services Commission continued under the Legal Aid Act.(Commission)
“Executive Director” means the Executive Director of Legal Aid appointed under the Legal Aid Act.(directeur général)
“fiscal year” means the period commencing on April 1 in one year and ending on March 31 in the next year.(année financière)
“Minister” means the Minister of Justice and includes any person designated by the Minister to act on the Minister’s behalf.(ministre)
“Public Trustee” means the person appointed as Public Trustee under subsection 2(1).(curateur public)
“trust fund account” means the trust fund account referred to in section 9.(compte en fiducie)
2012, c.14, s.2
The Lieutenant-Governor in Council shall appoint a barrister and solicitor who is a member in good standing of the Law Society of New Brunswick as the Public Trustee.
The Civil Service Act does not apply to the Public Trustee.
If a new Public Trustee is appointed under this section, the new Public Trustee is, immediately on appointment, vested with all the property, powers, authority, rights, duties and responsibilities of the predecessor Public Trustee.
2012, c.14, s.3
Before taking office, the Public Trustee shall take the following oath or affirmation before a person who is authorized to administer it:
Before commencing his or her duties, an employee in the office of the Public Trustee shall take the following oath or affirmation before a person who is authorized to administer it:
2012, c.14, s.4; 2013, c.44, s.40
In this section, “public service” means the departments, boards, commissions, corporations, agencies and educational institutions whose employees are members of the pension plan converted to a shared risk plan in accordance with An Act Respecting Public Service Pensions.
The Public Trustee is responsible for the administration of this Act and may designate in writing any person who is employed within the office of the Public Trustee to act on his or her behalf.
Repealed: 2012, c.14, s.4
The Public Trustee may in writing delegate to any person who is not employed within the office of the Public Trustee, but is a person employed in the public service, any power, authority, right, duty or responsibility conferred or imposed on the Public Trustee under this or any other Act or a regulation under this or any other Act.
The Public Trustee may impose such terms and conditions as he or she considers appropriate on a delegation made under subsection (2).
Anything done by a person under a delegation made under subsection (2) shall have the same effect as if it had been done by the Public Trustee.
The Public Trustee may revoke, in whole or in part, a delegation made under subsection (2).
2012, c.14, s.52012, c.14, s.5; 2013, c.44, s.40; 2016, c.37, s.162
The Executive Director may, on behalf of the Commission, employ such persons as the Executive Director considers necessary for the provision of services of the office of the Public Trustee.
The remuneration and other conditions of employment of the employees in the office of the Public Trustee shall be established by the by-laws of the Board.
The pension plan converted to a shared risk plan in accordance with An Act Respecting Public Service Pensions applies to the employees in the office of the Public Trustee.
The Civil Service Act does not apply to the employees in the office of the Public Trustee.
Subject to the approval of the Board, employees of the office of the Public Trustee are eligible to participate in any employee benefit program established by the Treasury Board.
The Public Trustee may, on such terms and conditions as he or she considers appropriate, contract for such services as the Public Trustee considers necessary to carry out his or her duties or exercise his or her powers.
2016, c.46, s.23; 2019, c.30, s.35; 2021, c.18, s.1; 2022, c.60, s.82
The Public Trustee has the powers and duties conferred or imposed on the Public Trustee under this or any other Act or the regulations under this or any other Act.
The Public Trustee may
(a) act as a representative under the Supported Decision-Making and Representation Act,
(b) Repealed: 2022, c.60, s.82
(b.1) continue to act as a representative under the Supported Decision-Making and Representation Act on behalf of a deceased person, from the person’s death until letters probate of the will or letters of administration of the deceased person’s estate are granted to the Public Trustee or to another person and notice of this is given to the Public Trustee, and in so doing may exercise all the powers that an executor would have in respect of the management of the deceased person’s estate if the property were devised or bequeathed to the executor in trust for payment of debts and distribution of the residue,
(c) Repealed: 2019, c.30, s.35
(d) act as an attorney in accordance with the terms of a power of attorney,
(d.1) Repealed: 2019, c.30, s.35
(e) act as an executor under a will or as an administrator of the property of a deceased person,
(f) act as a litigation guardian for a person under disability,
(g) act as a litigation administrator of the estate of a deceased person,
(h) act as the committee of the estate of a person declared to be an absentee under the Presumption of Death Act, and
(i) act, either alone or jointly with any other person or persons, as a trustee if the Public Trustee is appointed a trustee
(i) in a will, settlement or other instrument creating a trust,
(ii) by a majority of the trust’s beneficiaries who have reached 19 years of age and who are otherwise capable of making the appointment, or
(iii) by a court.
When acting as a litigation guardian for a person, the Public Trustee is entitled to all medical reports and other confidential information relating to the person that are reasonably necessary to act on behalf of the person.
Subject to subsections (5) and (6), the Public Trustee may be appointed sole trustee although the trust instrument contemplates 2 or more trustees, and any person who is a trustee with the Public Trustee may at any time retire from the trust upon passing the person’s accounts and paying over the balance.
The Public Trustee is under no duty to act in any capacity or to accept an appointment to act in any capacity by reason only of being empowered or authorized to do so under this or any other Act or a regulation under this or any other Act.
A court or any person may appoint the Public Trustee to act in a certain capacity only if the Public Trustee has consented in writing or has applied for the appointment, and the Public Trustee shall not give consent nor apply for such an appointment unless the Public Trustee considers that no other suitable person is willing and able to act in that capacity.
2026, c.7, s.2
If the Public Trustee, while 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 Trustee of the following is sufficient justification and authority for delivering the property to the personal representative:
(a) an authenticated copy of the probate of the will of the deceased, or of letters of administration of his or her property, or of letters of verification of heirship, or of the act of curatorship or tutorship, granted by a court in Canada having power to make that grant;
(a.1) an authentic copy of the will of the deceased, if the value of the property being held by the Public Trustee is $25,000 or less;
(b) an authentic copy of the will of the deceased, if it is a notarial will under the laws of the Province of Quebec; or
(c) if the deceased died elsewhere than in Canada, an authenticated copy of the probate of his or her will, or of letters of administration of his or her property, or other document to the same effect, granted by any court or authority having the requisite power in those matters.
When the authenticated copy or other document to the same effect is produced to the Public Trustee under subsection (1), a true copy of it shall also be deposited with him or her.
Notwithstanding any other Act, if the Public Trustee is a person’s representative under the Supported Decision-Making and Representation Act or the committee of a person’s estate under the Mental Health Act, the Public Trustee may, if it is reasonable to do so having regard to the value of the estate, make gifts from the estate to charities or to relatives or friends of the person if, in the opinion of the Public Trustee, 2022, c.60, s.82
(a) the person has made similar gifts before the Public Trustee became the person’s representative or the committee of the person’s estate,
(b) there is reason to believe that the person would make such gifts, based on the intentions of the person expressed before the Public Trustee became the person’s representative or the committee of the person’s estate, or
(c) such gifts are appropriate having regard to the person’s relationship with the recipient and any other circumstances considered reasonable by the Public Trustee.
2011, c.20, s.5; 2012, c.14, s.6
The Public Trustee shall establish and maintain a trust fund account.
The Public Trustee shall deposit in the trust fund account money received by the Public Trustee on behalf of a person, estate or trust under this or any other Act, a regulation under this or any other Act, a court order, an instrument or any other document.
Money in the trust fund account is not public money for the purposes of the Financial Administration Act.
Money in the trust fund account shall be invested in a common fund under section 11 unless the money
(a) is immediately required for payment, or
(b) is to be invested under section 12.
Until money in the trust fund account is invested, the Public Trustee may deposit the money in a single account in a bank, trust company or credit union designated by the Commission.
For the purposes of investing money under this Act, the Public Trustee has the powers and duties of a trustee under the Trustees Act, except as otherwise provided in a court order, an instrument, this or any other Act or a regulation under this Act.
For the purposes of investing money, the Public Trustee shall establish and maintain at least one common fund within the trust fund account.
An investment of money in a common fund is not made on account of or for the benefit of a particular person, estate or trust and the investment does not belong to a particular person, estate or trust.
The interest of a person, estate or trust entitled to a share or interest in a common fund is in common with the interest of all other persons, estates or trusts entitled to a share or interest in the common fund.
The Public Trustee shall, in accordance with the regulations, allocate income earned by a common fund to the credit of the persons, estates or trusts for whom or for which the investment was made.
The Public Trustee may make investments separate from the common funds in the name of a person, estate or trust for whom or for which the Public Trustee holds money if
(a) the money is subject to an express trust or direction for investment, or
(b) in the opinion of the Public Trustee, it is, for any other reason, in the best interests of the person, estate or trust to do so.
The Public Trustee may charge fees prescribed by regulation for performing any act, duty or service under this or any other Act or a regulation under this or any other Act.
The Public Trustee may charge fees prescribed by regulation for any service performed under this or any other Act or a regulation under this or any other Act by an employee in the office of the Public Trustee.
The Public Trustee is entitled to be reimbursed for expenses incurred by the Public Trustee or an employee in the office of the Public Trustee in respect of the performance of any act, duty or service under this or any other Act or a regulation under this or any other Act.
A reduction or waiver under subsection (5) may be in respect of a person or a class of persons.
This section prevails over a provision in any other Act relating to fees, compensation or expenses.
The Public Trustee has a lien on the real or personal property of a person, estate or trust for whom or for which he or she acts or has acted, for the following amounts:
(a) fees and expenses charged to the person, estate or trust under section 13;
(b) an amount advanced for or on behalf of the person, estate or trust or for the support of dependants; and
(c) the amount of a liability incurred for a purpose referred to in paragraph (b).
In the case of real property, the Public Trustee may register in the appropriate registry office established under the Registry Act or in the appropriate land titles office established under the Land Titles Act a notice claiming a lien and identifying the real property against which it is claimed.
If the Public Trustee holds money of an estate or trust and is proceeding to have his or her accounts passed, the Public Trustee may withhold sufficient money from the estate or trust to adequately secure the costs of the passing of the accounts.
The Public Trustee is not liable for any loss for which a private trustee would not be liable in similar circumstances.
A court may award costs to the Public Trustee in any action or proceeding taken by or against the Public Trustee, and the court may direct the costs to be paid to the Public Trustee on a solicitor and client basis.
Costs shall not be awarded by a court against the Public Trustee in any action or proceeding if the court finds that the Public Trustee has acted reasonably and in good faith.
Notwithstanding any rule, practice or law, the Public Trustee is not liable to pay any costs awarded against a party under disability for whom he or she is acting or has acted as a litigation guardian.
Notwithstanding any rule, practice or law requiring security, it is not necessary for the Public Trustee to give any security for the due performance of his or her duty as executor, administrator, trustee, committee, representative or in any other office to which the Public Trustee may be appointed by order of a court or may hold under any Act or regulation. 2022, c.60, s.82
Subject to subsection (2), the Auditor General shall audit annually the books and accounts of the Public Trustee.
The Auditor General shall audit annually such of the accounts of the Public Trustee relating to estates or trusts under the administration of the Public Trustee as the Auditor General considers necessary.
2012, c.14, s.7
Within 60 days after receiving the Auditor General’s report on the audit of the books and accounts of the Public Trustee for a fiscal year, the Public Trustee shall make to the Commission a report on the operations of the office of the Public Trustee in the fiscal year.
Before the first day of October in each year, the Commission shall submit the report on the operations of the office of the Public Trustee to the Minister for the fiscal year ending on the thirty-first day of March of that year.
The Minister shall lay a copy of the report on the operations of the office of the Public Trustee before the Legislative Assembly if it is in session or, if not, at the next session.
The Lieutenant-Governor in Council may make regulations
(a) imposing duties on the Public Trustee in addition to those imposed by this Act;
(b) establishing, for the purposes of subsection 11(4), the method of allocating income earned by a common fund to the credit of the persons, estates or trusts for whom or for which the investment was made;
(c) prescribing fees chargeable by the Public Trustee for performing any act, duty or service under this or any other Act or a regulation under this or any other Act;
(d) prescribing fees chargeable by the Public Trustee for any service performed under this or any other Act or a regulation under this or any other Act by an employee in the office of the Public Trustee;
(i) as a percentage of
(ii) based on a flat rate;
(g) defining any word or expression used in but not defined in this Act for the purposes of this Act, the regulations or both;
(h) respecting any matter that the Lieutenant-Governor in Council considers necessary or advisable to carry out effectively the intent and purpose of this Act.
(i) in paragraph (h) by striking out the period at the end of the paragraph and substituting a semicolon;
(ii) by adding after paragraph (h) the following:
(i) in paragraph (h) by striking out the period at the end of the paragraph and substituting a semicolon;
(ii) by adding after paragraph (h) the following: