Some argue that not all people requiring fiduciary services can afford or qualify for those services from trust companies, and so other corporations should be permitted to provide fiduciary services. The Commission finds that current legislation ensures that the fullest protection comes from trust companies and that there is no need to allow other corporate fiduciaries to provide these services.
This report, issued in December, 2002, completes the Commission’s project on the law of trusts. It is the product of an extensive research program that included circulation of consultation papers on aspects of the law of trusts for comment from the bar and public. The report recommends adoption of a modernized Trustees Act reflecting the contemporary needs of settlors,
Gaps in the Powers of Attorney Act have left those who wish others to administer their affairs vulnerable to abuse and without adequate guidance. The Commission suggests addressing a number of issues, including standard forms, a standard test of capacity, criteria of admissibility for attorneys, the effect of death or divorce on power of attorney, and appointment of a corporate attorney under an enduring power.
The Saskatchewan Trustee Act limits the investment options of trustees to a list of approved investments. This fails to promote balanced portfolios, and has motivated drafters of trusts to avoid statutory oversight entirely. The Commission favours a broadened British approach that encourages balanced investments and requires trustees to obtain adequate advice before investing.
Advance directives, or living wills, may be used to promote death with dignity by allowing the termination of treatment when death is imminent. The proposed Advance Health Care Directives Act would recognize advance directives that meet minimal formal requirements, and would afford liability protection to physicians following directives in good faith.
The Commission proposes reforms in the law of guardianship of a child’s person and estate. A draft of a Children’s Act is presented as an alternative to The Infants Act, which is now disjointed and in need of modernization and clarification. The draft incorporates proposals from this report and from the Commission’s 1981 Custody Report.
The Saskatchewan Mentally Disordered Persons Act fails to meet the needs of mentally ill persons requiring personal guardians. The Commission proposes a Personal Guardianship Act to provide a clear and efficient legal framework for legal guardianship. The Commission also recommends the creation of an Office of the Public Guardian, as well as an ombudsman to regulate the system.
The Law Reform Commission considers issues surrounding the decision to commit a mentally ill person, appropriate criteria to be used in making this decision, and the required level of review or oversight. The Saskatchewan Mental Health Act is reviewed, along with a draft Compulsory Mental Health Care Act, the Commission’s recommended replacement legislation.
A legal framework on personal guardianship is needed to protect elderly and mentally disabled people in need of care. The Commission recommends that this area of law be reformed so that personal guardians can be appointed for people who cannot take care of themselves, whether or not property management is involved.