Private trust applications on behalf of a person under 19

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Glossary Accessibility

Overview

Guardians in B.C. are not automatically trustees where a child/youth under the age of 19 receives a sum of money over $10,000.00. For example, from a personal injury settlement.

Applications made under the Family Law Act to appoint a trustee of a trust for a child/youth require written comments to the court from the Public Guardian and Trustee (PGT).

Factors considered by the court

Sections 179 and 180 of the Family Law Act provide for the appointment of a trustee by the Supreme Court of British Columbia if the court is satisfied that the appointment is in the child/youth’s best interests according to the following factors set out in section 179(2):

  • The apparent ability of the proposed trustee to administer the property
  • The merits of the proposed trustee’s plan for administering the property
  • The views of the child/youth, unless it would be inappropriate to consider them
  • The personal relationship between the proposed trustee and the child/youth
  • The wishes of the child/youth’s guardians
  • The written comments of the PGT
  • The potential benefits and risks of appointing the proposed trustee to administer the property compared to other available options for administering the property
  • If the Supreme Court of British Columbia is considering making an order under subsection (1)(b)*, that the interests of the child/youth are likely better served by an order made under that subsection than by an order made under subsection (1)(a)*

*An order under section 179(1)(a) is an order appointing a trustee over all property to which the child/youth is entitled at the time the order is made. An order under section 179(1)(b) is an order appointing a trustee over all property to which the child/youth is entitled at the time the order is made, as well as property to which the child/youth may become entitled in the future unless the property is excluded in the order, or the trustee already has authority over the property.

Guidelines for preparing affidavit supporting materials

Please provide the information set out below to assist the PGT in our review. These are guidelines only. We may request additional information.

  • The child/youth’s full name, including any aliases
  • The child/youth’s date of birth
  • The child/youth’s usual residential address (where they usually live)
  • The name and residential address of the child/youth’s guardian(s) responsible for the child/youth’s legal and financial matters under section 41(k) of the Family Law Act
  • The names and residential addresses of any other guardians
  • The full name and residential address of each proposed trustee and their relationship to the child/youth. If the proposed trustee is a corporate trustee, provide the full legal name of the trust company and local business address where the trust will be administered
  • The source of the funds or assets to be settled on the trust, such as a personal injury settlement, judgment awarded at trial, an inheritance (provide the name of the deceased and the date of death), distribution from a trust, a gift or transfer from another person, insurance proceeds, or proceeds from an Registered Retirement Savings Plan (RRSP) or Registered Retirement Income Fund (RRIF)
  • With respect to the assets to be transferred to the trust:
    • The amount of cash to be transferred to the trust
    • A list of any assets to be transferred to the trust with current market values and, if known, the estimated annual income
    • For real property to be transferred to the trust:
      • The address and legal description of the property
      • The nature of the property, such as a residential house, apartment or condominium, a rental property or a commercial property
      • The most recent B.C. Assessment (the current actual value assessment for tax purposes)
      • A current property appraisal and/or recent realtor valuation
  • A description of the investment education and experience of the proposed trustee(s)
  • A description of the proposed plan for administering the trust property. The plan should address the following, along with any other relevant information, such as:
    • Investment management plans:
      • The name of the investment manager, if any, and details of the management fees if applicable
      • The anticipated investment objective and asset classes that will be purchased, such as Guaranteed Investment Certificates (GICs), government or corporate bonds, equities, or mutual funds
      • Whether the proposed trustee plans to reinvest the income earned, or use the income for the child/youth’s benefit
    • Real estate:
      • If the child/youth will live in the home, indicate who else will live with the child/youth and the arrangements for covering ongoing expenses, repairs and maintenance
      • If the property is a rental or commercial property:
        • The name of the property manager, if any, and details of the management fees, if applicable
        • Whether the property will be sold or retained
      • Details of any mortgage including:
        • The balance outstanding, remaining term and interest rate
        • The amount of the monthly payments and the source of the funds to make monthly payments
        • Whether or not the mortgage will be renewed
        • How the mortgage will be dealt with if it is still in place when the trust ends
    • Trust expenditures and distributions:
      • A description of anticipated capital expenses from the trust, such as insurance and property repairs, including frequency and timing
      • Anticipated annual expenditures or payments from capital or income to or on behalf of the child/youth, including frequency and timing
      • Plans for covering the shortfall if the anticipated annual income does not cover annual expenses and/or payments to the child/youth
    • The name, qualifications and fee schedule of any professional to be hired to prepare trust accounts and/or trust tax returns
    • If appropriate, confirmation that the trust has been discussed with the child/youth, and details of the child/youth’s wishes with respect to the trust
    • The views of the child/youth’s guardian(s) if the proposed trustee is not the child/youth’s guardian
    • The proposed trustee fees, including annual expenses not already mentioned
    • If the applicant is an individual (private trustee), the applicant’s affidavit should include:
      • A statement that the proposed trustee has been advised of the duties and responsibilities of acting as a trustee, including the need to manage the property, maintain accounts, file annual tax returns and authorize disbursements from the trust
      • Confirmation that the proposed trustee is not an undischarged bankrupt and the date(s) of any prior discharge(s) from bankruptcy along with any other relevant details
      • Confirmation that the proposed trustee has not been convicted of an offence involving fraud or property
    • Any other relevant information that may assist the PGT and the court when considering the application

The PGT’s review

How to serve notice of an application to appoint a trustee on the PGT

Please submit your application and payment online. If you are not able to submit online or run into any difficulties making your submission, please contact us at cyslegal@trustee.bc.ca for assistance.

Your application will be assigned to a lawyer in our Child and Youth Services division. The lawyer will request additional material if necessary. Subject to any questions or clarifications that may be required, we will send you our formal written comments.

Fees

The PGT charges a fee of $525.00 ($500.00 plus 5% GST) to examine and respond to an application to appoint a trustee. All fees charged by the PGT are set by the B.C. government in the Public Guardian and Trustee Fees Regulation. For more information, see Fees for protective legal review services.

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Overview Factors considered by the court Guidelines for preparing affidavit supporting materials The PGT's review
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