Individuals, (typically parents) and trust companies may apply to be appointed the trustee of the minor’s property pursuant to section 179 of the Family Law act. ( FLA)
For example, I recently settled an infant’s claim under the wills variation proceedings and the mother wishes to be the trustee of the funds during their infancy. The Public Guardian and Trustee (PGT) is normally in such a role by default, but section 179 FLA makes provision for others to be appointed in that role.
Section 179 (2) FLA sets out the criteria to be considered by the court when appointing a trustee under that section, and sets out a number of matters that might be included in the order.
The Supreme Court may appoint a trustee only if satisfied that it is in the best interests of the child to do so, on consideration of all of the following:
(a) the apparent ability of the proposed trustee to administer the property;
(b) the merits of the proposed trustee’s plan for administering the property;
(c) the views of the child, unless it would be inappropriate to consider them;
(d) the personal relationship between the proposed trustee and the child;
(e)t he wishes of the child’s guardians;
(e) the written comments of the Public Guardian and Trustee;
(g)t he potential benefits and risks of appointing the proposed trustee to administer the property compared to other available options for administering the property;
(h)i f the Supreme Court is considering making an order under subsection (1) (b), that the interests of the child are likely better served by an order made under that subsection than by an order made under subsection (1) (a).
The (PGT) must be served with the court application and the written comments of the PGT in response to the materials will be provided to the court.
The PGT will typically recommend to the court that the property be secured by provisions in the court order, which may vary from bonding to specific provisions to protect the assets. These provisions are typically, a requirement that the trustee be restricted from registering real property transactions, including encumbrances and transfers without a further order of the court or the prior written approval of the PGT.
