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The Public Guardian and Trustee (PGT) provides a number of other protective services on behalf of children and youth. These include:
S.112 Estate Administration Act Notices
The applicant must file the PGT's recommendations with the court and must give the PGT a copy of the grant within a specified timeframe.The PGT may follow up with the executor or administrator to ensure that the minor's share of the estate has been properly dealt with. Parents or guardians have a duty to pursue litigation on behalf of a minor where a minor may have a viable claim as a plaintiff. A minor typically has his or her minority plus two years (in other words, until the person turns 21) in which to pursue a claim for damages for injury to person or property. However, a defendant may serve a notice to proceed on the minor, the minor's parents or guardians, and the Public Guardian and Trustee pursuant to the provisions of section 7 of the Limitations Act . Service of a notice to proceed starts the running of time under the limitation period. Accordingly, the minor will have only two years from the date of delivery of the notice to commence a legal action to pursue the claim if the claim has not settled during that time. When the PGT is served with a notice to proceed, a letter is sent to the parents or guardians explaining the effect of the notice and the need to act. The PGT requests confirmation that a lawyer has been retained by the parents or guardian on the minor's behalf and that a writ has been filed to protect the minor's rights. If the parents or guardians fail to protect the minor's rights, the PGT may initiate a legal action to preserve the interests of the minor where the circumstances warrant. A spouse or child of a deceased testator may apply to the court to vary the deceased's will if the will does not make adequate provision for the proper maintenance and support of the testator's spouse or children. A spouse includes a person married to the testator, or a person who has been living and cohabiting with the testator in a marriage-like relationship, including persons of the same gender, for at least 2 years. A child includes a natural or adopted child. The court may order a provision that it thinks “adequate, just and equitable in the circumstances.” A wills variation action must be commenced within 6 months from the date of the issue of probate or resealing of probate of the will and a copy of the writ of summons must be served on the Public Guardian and Trustee if there are minor children of the testator. a) Minors as Claimants Under the Wills Variation Act While normally a wills variation action will not be brought on behalf of a minor child when the deceased parent leaves his or her estate to the surviving natural parent because it is expected that the surviving parent will, in the normal course, continue to maintain the minor child. However, situations may arise in which a wills variation action may be brought on behalf of a minor child to protect his or her interests. These situations include: a minor who has been excluded from the will of a deceased parent when the parents are divorced; or when a deceased parents leaves his or her estate to the minor's step-parent. Section 112 of the Estate Administration Act requires that anyone applying for a grant of probate or letters of administration where a minor may be entitled to apply under the Wills Variation Act serve notice on the PGT. If it appears that a minor has a viable claim, the PGT will ensure that the minor's parent, guardian or someone else will take steps to protect the minor's claim and act as litigation guardian for the minor and instruct counsel. If it appears that steps are not being taken to protect a minor's legal interests, the PGT will issue a writ and instruct counsel on behalf of the minor and seek payment of counsel's fees from the estate. b) Minor Defendants in Wills Variation Act Actions Sometimes an adult child or spouse seeks a larger share of the deceased estate. In such cases, the minor child's surviving parent or guardian may need to arrange for a lawyer to represent the minor whose inheritance stands to be diminished. If the minor child's surviving parent or guardian is unable to act as litigation guardian due to a conflict, the PGT may agree to act as litigation guardian if no one else is available and will seek payment of its legal fees from the estate. In some cases, a wills variation application may propose to reduce or eliminate the share of a minor beneficiary who is not the testator's child. The minor's parent or guardian would normally instruct counsel on the minor's behalf unless they find themselves in a conflict of interest. If there is no one willing and able to act as litigation guardian for the minor, the PGT may consent to act. The PGT would retain counsel and seek payment of counsel's fees from the estate or the minor's share of the estate. If the parties seeking to vary the will agree to leave any gift to minors intact, the PGT may agree to act as litigation guardian to monitor the arrangement made on behalf of the minors. The estate would be spared the expense of another lawyer's fees unless a concern arose that the interests of the minors required more than monitoring. In which case the PGT may retain counsel for the minors and seek payment of counsel's fees from the estate or the minors' share of the estate. c) Public Guardian and Trustee Comments to the Court Only the court has authority to vary a will under the Wills Variation Act . However, in some cases, adult beneficiaries agree among themselves to distribute an estate in a way other than that which the testator has directed in the will. No one can consent to such an agreement on behalf of a minor. When minors are involved, an application to vary the will must be made to the court and the PGT must be served with a copy of the writ of summons. The PGT will usually provide written comments to the court with respect to the merits of the proposed settlement. However, the PGT is entitled to appear in court if it thinks that is necessary and to recover costs if so ordered by the court. Trust and Settlement Variations. Under the common law, a trust may be varied with the consent of all the beneficiaries of the trust, vested or contingent, provided they are of age and are mentally competent. However, when the beneficiaries of the trust include minors, unborn or unascertained persons, or persons lacking mental capacity, an application to approve a variation of the trust on their behalf must be brought under the Trust and Settlement Variation Act . The court will not approve an arrangement to vary a trust on behalf of a minor, unborn, unascertained, or otherwise incapable beneficiary unless the arrangement appears to be for benefit of those beneficiaries. Anyone applying to vary a trust under the Trust and Settlement Variation Act must serve the Public Guardian and Trustee with notice in writing of the application and with a copy of the material filed in support of the application not less than 10 days before the date of the application. Applications under the Trust and Settlement Variation Act are complex and time consuming and applicants should provide the PGT with as much notice as possible so that any concerns may be addressed at the outset. The PGT will review the application and material and consider how the proposed arrangement will affect the interests of the minor, unborn, unascertained, and otherwise incapable beneficiaries and ensure that a tangible benefit is conferred by the arrangement on those beneficiaries. The PGT will generally provide written comments on the proposed arrangement to legal counsel acting for the applicant which counsel provides to the court. Counsel for the PGT may appear at the hearing and seek appointment under the Rules of Court to represent the minors, unborn, unascertained or incapable beneficiaries. The PGT is entitled to any costs that the court may order. In narrow circumstances, and depending on the terms of the trust instrument a trust may be accelerated following the disclaimer by a life tenant of his or her interest in the a trust, without the Trust and Settlement Variation Act being invoked. An application would be made to the court with notice to the PGT. The PGT would provide written comments to be provided to the court and would appear at the hearing if necessary and requests costs. Contracts Entered into by Minors. A contract entered into by a minor is generally unenforceable against the minor, but is enforceable by the minor against an adult party to the contract. A party wishing to contract with a minor may apply to the court under the Infants Act for an order granting the minor contractual capacity. Notice of the application must be served on the Public Guardian and Trustee. The PGT will review the contract and make written recommendations to the court. In some cases the PGT will attend at the hearing of the application. In reviewing the contract, the PGT considers: the circumstances surrounding the making of the contract; the nature, subject matter, and terms of the contract; the requirements of the minor, having regard to his or her particular circumstances; the age and means of the minor; and the wishes of the minor's parent or guardian. Under the Employment Standards Regulations , as amended in February 2005, the earnings of minors under the age of 15 working in the entertainment industry are protected. The entertainment industry (for the purposes of the protection under these regulations) is defined as the film, radio, video or television industry or the television and radio commercial industry. If a child under the age of 15 employed as an actor, background performer or extra in the entertainment industry earns more than $2,000 on a production, the employer must remit 25% of any earnings over $2,000 to the Public Guardian and Trustee to hold in trust for the child until he or she turns 19. Authorizing the Sale of a Minor's Real Property. A parent or guardian wishing to sell land owned by a minor on the minor's behalf or in which a minor has an interest must apply to the court under section 2 of the Infants Act and serve a copy of the application on the Public Guardian and Trustee. The PGT will review the application with respect to whether the sale is in the best interest of the minor, considering the appraised value and the proposed selling price of the property, and provide written recommendations to the court. In addition to granting the order authorizing the sale, the court will usually direct that the guardian has the authority to act on the minor's behalf in executing the necessary transfer documents. The court will also make an order regarding receipt and disbursement of the proceeds of sale. Where a minor's property is held in trust, and there is no power of sale contained in the trust instrument, a trustee who wishes to sell the property must seek leave of the court under the Trustee Act and service a copy of the application on the Public Guardian and Trustee. The PGT will review the application and provide written recommendations to the court. Private Trustees for Minor Beneficiaries While many children’s trusts are managed by the Public Guardian and Trustee, this is not always the case. A private person may be appointed as Trustee under a will, a trust document or a court order. Trustees appointed in this manner are considered to be Private Trustees. Private Trustees are expected to administer the child’s money or property with the utmost care and integrity. The PGT recommends that a Trustee seek legal advice from a lawyer before making decisions on behalf of the child or the Trust. For a general guide, see Children’s Trusts: Management of Trusts Where a Beneficiary is a Minor. Private Trustees for minor beneficiaries may be required to report to the PGT about their management of the funds they hold in trust as per the terms of the Trust.
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