Allowable Investments
The investments a trustee can make are governed by sections 27-31 of the Trustee Act. The general rule pertaining to a Trustee’s power of investment is that a trust instrument can define the Trustee’s powers of investment. Trustees are bound by the instructions in the trust deed; the trust’s funds must be invested in strict accordance with the powers granted the trustee, regardless of what may be allowed by the Trustee Act. Should the trust instrument remain silent on investment powers, then, historically speaking, trusts were for the most part confined to judicial and later statutory lists of authorized investments.
In 1999 and 2001 changes were made to the Trustee Act. One of the changes was the abolition of the legal list approach. The legal list approach was replaced by the prudent investor approach. Under this amended legislation “a trustee must exercise the care, skill, diligence and judgment that a prudent investor would exercise in making investments”. A trustee may now invest trust property in any form of property in which a prudent investor might invest; thus, one must act as a prudent person of discretion and intelligence would act in one’s own affairs.
The prudent investor approach provides the trustee with a broader selection of investment choices. The legislation now specifically permits trustees to make certain investments such as in mutual funds and common trust funds. The Trustee Act also lays out the mandatory investment criteria which a trustee is obliged to consider when investing trust property. There are seven criteria in section 27(5) of the Trustees Act:
- General economic conditions.
- The possible effect of inflation or deflation.
- The expected tax consequences of investment decisions or strategies.
- The role that each investment or course of action plays within the overall trust portfolio.
- The expected total return from income and the appreciation of capital.
- Needs for liquidity, regularity of income and preservation or appreciation of capital.
- An asset’s special relationship or special value, if any, to the purposes of the trust or to one or more of the beneficiaries.
Substitute Decisions Act
The Substitute Decisions Act governs what may happen when someone is not mentally capable of making certain decisions about their own property or personal care. There are three possible ways for a decision maker to be appointed: a) through a “continuing power of attorney,” b) through “statutory guardianship,” and c) through a guardian of property by the court. The attorney may be given the authority to make any type of decision related to the person’s property that the person could make themselves, except make a will. However, the power of attorney may put conditions on how the property is to be managed. For example, it might say that loans to individuals or certain types of investments cannot be made.
Under section 15(1) of the Substitute Decisions Act, if a certificate is issued under the Mental Health Act certifying that a person who is a patient of a psychiatric facility is incapable of managing property, the Public Guardian and Trustee is the person’s statutory guardian of property. The statutory guardian of property will be the Public Guardian and Trustee unless a family member or other authorized person applies to the Public Guardian and Trustee to assume this role. A person who replaces the Public Guardian and Trustee as statutory guardian of property shall, subject to any conditions imposed by the Public Guardian and Trustee or the court, manage the property in accordance with the management plan.
The property management portions of the Act, (sections 31-42) refer to a “guardian of property”. In this section of the Act, the guardian of property can fall under two different standards.
These standards are found in sections 32(7) and (8) of the act:
- 32(7) a guardian who does not receive compensation for managing property shall exercise the degree of care, diligence and skill that a person of ordinary prudence would exercise in the conduct of their own affairs.
- 32(8) a guardian who receives compensation for managing the property shall exercise the degree of care, diligence and skill that a person in the business of managing property of others is required to exercise.
In addition to the standard of care, a guardian must make required expenditures from an incapable person’s property. The requirements are outlined under Section 37(1) of the Act. The guardian must put the financial needs of the incapable person first and if there are funds left over, the needs of the person’s dependents are the next priority. After that, if there is money still available, it may be spent to satisfy the person’s other legal obligations. When making these latter required expenditures, the guardian must also adhere to the guiding principles under Section 37(2). Optional expenditures such as gifts, loans and charitable donations are allowed under the Act. The guiding principles for how money may be spent are under section 37(4).
In doing all of this, guardians must keep accounts of all transactions