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Copyright 2000: Queens Printer,
St. John's, Newfoundland and Labrador, Canada

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Revised Statutes of Newfoundland 1990


CHAPTER M-10

AN ACT RESPECTING THE APPOINTMENT OF GUARDIANS FOR THE CUSTODY AND MANAGEMENT OF THE ESTATES OF MENTALLY DISABLED AND OTHER PERSONS AND RESPECTING THE ADMINISTRATION OF THOSE ESTATES

Analysis

1. Short title

2. Definitions

3. Committal of estate to guardian

4. Appointment of new guardian

5. Costs

6. Powers of guardian

7. Duties of guardian

8. Administrative powers

9. Powers of court respecting property

10. Conferring authority on guardian

11. Additional powers of guardian

12. Execution of assurances, etc.

13. Receipts by guardian

14. Property of mentally disabled non-resident

15. Transfer of money

16. Temporary maintenance

17. Declaration of incapacity

18. Disposal of estate

19. Discharge of guardian

20. Notice to be sent to registrar

21. Information respecting persons referred to in s.20

22. Where office of registrar vacant

23. Probate or administration

24. Maintenance of dependants and preservation of property

25. Registrar not required to preserve where no funds available

26. Application by registrar to judge

27. Ss.66 to 74 of the Judicature Act apply

28. Fees

29. Discharge of liability for losses

30. Regulations

31. Investment of money

32. Security by registrar not necessary

33. Rules

34. Registrar may practise and charge fees

35. Provision for paid assistance for registrar

36. Visiting privileges of registrar


Short title

1. This Act may be cited as the Mentally Disabled Persons' Estates Act.

RSN1970 c234 s1

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Definitions

2. In this Act

(a) "court" means the Trial Division;

(b) "guardian" means a guardian to whom, under this Act, the custody and management of the estate of a mentally disabled person are committed;

(c) "hospital" means the Waterford Hospital, St. John's, and includes another hospital designated by the Minister of Health, with the consent of the authority operating the hospital, as a hospital for the purposes of the Mental Health Act;

(d) "judge" means a judge of the Trial Division;

(e) "lease" includes a lease in which the lessee is given an option to purchase;

(f) "mentally disabled person" means a person

(i) in whom there is such a condition of arrested or incomplete development of mind, whether arising from inherent causes or induced by disease or injury, or

(ii) who is suffering from a disorder of the mind,

requiring care, supervision and control for the protection of his or her property, whether or not he or she has been committed to the hospital under the Mental Health Act;

(g) "registrar" means the Registrar of the Supreme Court, and includes the Deputy Registrar of the Supreme Court when acting under section 22;

(h) "superintendent of the hospital" means the person in charge of the hospital;

(i) "transfer" means the execution and delivery by a person of every necessary or suitable assurance for conveying, assigning, transferring, releasing or disposing of property or an interest in property to another person, together with the performance of all formalities required by law for the validity of the transfer, and includes the transfer of negotiable instruments by endorsement; and

(j) "trust" includes a trust implied and constructive, a trust where the trustee has some beneficial interest, and the powers and duties incident to the office of personal representative of a deceased person, and "trustee" has a corresponding meaning.

RSN1970 c234 s2; 1974 No57 s38(264(w));
1986 c42 Sch A

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Committal of estate to guardian

3. (1) The court or a judge may, on the application of a person having an interest in, having a claim against or wishing to make a payment to the estate of a mentally disabled person or of a person who has the custody of or who has responsibility for the care or treatment of a mentally disabled person, make an order appointing a guardian for the custody and management of the estate of that mentally disabled person and committing to the guardian the custody and management of that estate.

(2) An order made under subsection (1) takes effect immediately, unless the guardian is required, by the order, to give security, in which case the order takes effect upon the completion of the security.

RSN1970 c234 s3

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Appointment of new guardian

4. The court or judge may, where good cause is shown, make an order appointing a new guardian, either in substitution for or in addition to a former or existing guardian.

RSN1970 c234 s4

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Costs

5. The court or a judge may order the costs, charges and expenses of and incidental to proceedings under this Act, whether incurred in or out of court, to be paid

(a) by a party to the proceeding;

(b) out of the estate of the mentally disabled person or of the person alleged to be mentally disabled; or

(c) partly in 1 way and partly in another.

RSN1970 c234 s5

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Powers of guardian

6. (1) A guardian

(a) has a right to, and shall, take into custody or take under control all real and personal property to which the mentally disabled person is entitled or of which he or she is possessed; and

(b) shall call in, collect and receive payment of debts owing to the mentally disabled person.

(2) The court or a judge may, to facilitate the administration of the estate of a mentally disabled person, by order

(a) vest the property of that person in the guardian; or

(b) appoint some person to transfer the property to the guardian or as the court directs.

RSN1970 c234 s6

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Duties of guardian

7. (1) Unless the court or a judge otherwise orders, a guardian shall

(a) within 6 months after his or her appointment file with the court an inventory of the whole estate of the mentally disabled person, stating the income and profits of the estate and setting out that person's debts, credits and effects, so far as information respecting those matters has come to the knowledge of the guardian;

(b) if property belonging to the estate is discovered after the filing of the inventory referred to in paragraph (a), file with the court a true account of that property as it is discovered;

(c) verify by affidavit every inventory and account filed under paragraph (a) or (b), or have that inventory or account verified by the affidavit of some other person who is in a position to verify it; and

(d) file with the court security as approved by the court

(i) for filing the necessary inventory,

(ii) for accounting for the real and personal estate and the income derived from each of those types of estate at intervals as directed by the court, and

(iii) upon an accounting under subparagraph (ii), for payment immediately into court of the balances in his or her hands after they have been ascertained, or otherwise as the court directs.

(2) A creditor or relative of a mentally disabled person may apply, not more than once in each year, to the court by application in chambers for an order that the guardian

(a) bring in and pass his or her accounts;

(b) file an inventory; and

(c) pay into court the balances in his or her hands, or otherwise as the court directs.

(3) A guardian may at any time voluntarily file his or her accounts with the court and, upon notice that the court directs, apply to the court by application in chambers for an order passing his or her accounts and for a further or other order or directions that the circumstances require.

RSN1970 c234 s7

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Administrative powers

8. The powers conferred by this Act with respect to the management and administration of the estate of a mentally disabled person shall be exercisable, in the discretion of the court,

(a) for the maintenance or benefit of that person and of persons who are dependent upon him or her; or

(b) where it appears to the court to be expedient, in the management of the estate.

RSN1970 c234 s8

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Powers of court respecting property

9. (1) Subject to the rights of secured creditors, the court may order that property of a mentally disabled person be dealt with as is considered most expedient for the purpose of raising, securing or repaying, with or without interest, money that is to be or has been applied to

(a) payment of the debts or engagements of the mentally disabled person;

(b) the discharge of an encumbrance on the property of the mentally disabled person;

(c) the payment of a debt or expenditure incurred for the maintenance of the mentally disabled person or for the maintenance of persons dependent upon him or her, or for his or her or their benefit;

(d) the payment of, or provision for, the expenses of the future maintenance of the mentally disabled person, or that of persons dependent upon him or her; or

(e) the improvement, security or advantage of the property of the mentally disabled person.

(2) In the case of a charge or mortgage for the expenses of future maintenance of a mentally disabled person, or of persons dependent upon him or her, the court may direct it to be payable

(a) contingently, if the interest charged is contingent or future, or upon the happening of the event if the interest is dependent on an event that must happen; and

(b) in a gross sum or in annual or other periodical sums, and at times and in a manner that is considered expedient.

RSN1970 c234 s9

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Conferring authority on guardian

10. The court may, by order, on terms and conditions it considers just, authorize and direct a guardian, in respect of the estate of a mentally disabled person

(a) to sell property and accept mortgages for the purchase money;

(b) to exchange or partition property and give or receive money for equality of exchange or partition;

(c) to carry on the trade or business of the mentally disabled person;

(d) to give leases of property;

(e) to surrender a lease, with or without accepting a new lease, or accept a surrender of a lease;

(f) to surrender, transfer or otherwise dispose of onerous property, with or without consideration;

(g) to exercise a power or give a consent required for the exercise of a power vested in the mentally disabled person;

(h) to exercise a right or obligation to elect, belonging to or imposed upon the mentally disabled person; or

(i) to compromise and settle a debt.

RSN1970 c234 s10

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Additional powers of guardian

11. A guardian may, in respect of the estate of a mentally disabled person and without obtaining the authority or direction of the court,

(a) make valid and binding leases of real property for a term not exceeding 3 years;

(b) invest money in securities in which trustees are authorized to invest funds under the Trustee Act;

(c) transfer property held in trust by the mentally disabled person, either solely or jointly with another, to the person beneficially entitled to it;

(d) give a consent to the transfer or assignment of a lease where that consent is required;

(e) perform a contract entered into by the mentally disabled person before his or her incapacity;

(f) draw, accept and endorse bills of exchange and promissory notes, endorse bonds, debentures, coupons and other negotiable instruments and securities and assign choses in action;

(g) give or receive a notice on behalf of the mentally disabled person; and

(h) take steps that he or she considers immediately necessary for the preservation of the assets of the estate of the mentally disabled person.

RSN1970 c234 s11

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Execution of assurances, etc.

12. The guardian, or another person approved by the court, may, in the name and on behalf of the mentally disabled person, execute and do all assurances and things that are necessary to give effect to an order made under this Act.

RSN1970 c234 s12

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Receipts by guardian

13. Where a portion of an estate that is under administration by a guardian is in the possession of another person, the guardian's acknowledgment of receipt

(a) of the portion of the estate; or

(b) of the documents or other evidence of title to the portion of the estate

is a sufficient discharge and release to that other person, without proof that, or inquiry whether, the person whose estate is being dealt with is or has been found or declared to be mentally disabled.

RSN1970 c234 s13

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Property of mentally disabled non-resident

14. (1) Where property within the province stands in the name of or is vested in a person living out of the province, the court or a judge may, upon proof

(a) that the person has been declared or found to be mentally disabled; and

(b) that his or her property has been committed to a guardian or other person appointed to manage it,

order that the property within the province or a part of it be vested in the person appointed.

(2) Where, under this section, property has been vested in a person appointed to manage it, the court or a judge may

(a) upon the filing of a certified copy of an order of a foreign court or other body of competent jurisdiction terminating the guardianship or appointment; or

(b) upon other proof which the court may require,

order that the property or a part of the property be revested in the person formerly declared or found to be mentally disabled.

RSN1970 c234 s14

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Transfer of money

15. Where there is money in court to the credit of a person who has been found or declared or alleged to be mentally disabled, and that person lives in the United Kingdom or in a part of Canada outside the province, the court or a judge, on production of an order of a court exercising jurisdiction in the place where that person lives authorizing another person to receive the money in court, may make an order for the payment of that money to the person so authorized.

RSN1970 c234 s15

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Temporary maintenance

16. (1) Where it appears to the court or a judge

(a) that the mental disability of a person is in its nature temporary;

(b) that it is expedient to make temporary provision for his or her maintenance and that of persons dependent upon him or her; and

(c) that money is readily available,

the court or judge may, instead of appointing a guardian, by order allow out of the available money an amount which appears appropriate for the maintenance of the mentally disabled person and that of persons who are dependent upon him or her.

(2) The court or a judge shall by order direct payment of an amount under subsection (1) to a person it appoints to be applied for the purpose mentioned in that subsection.

(3) A person who receives money under an order made under this section shall account for it when and as the court or judge directs.

RSN1970 c234 s16

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Declaration of incapacity

17. (1) Where it is proved to the satisfaction of the court or a judge that a person through mental infirmity arising from disease, age, habitual drunkenness, the use of drugs or other cause is incapable of managing his or her affairs, the court or judge may declare that without making a declaration of mental disability.

(2) Where the court or a judge has under subsection (1) declared a person to be incapable of managing his or her affairs, the court or a judge may commit the custody and management of the estate of that person to a guardian, and, upon the commitment, this Act applies, with the necessary changes, to the same extent as if that person had been declared or found to be mentally disabled.

RSN1970 c234 s17

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Disposal of estate

18. (1) Where it appears to the court or a judge

(a) that a person is through mental infirmity arising from disease, age, habitual drunkenness, the use of drugs or other cause incapable of managing his or her affairs; and

(b) that the value of his or her personal estate or money payable to him or her under a contract of insurance does not exceed the sum of $2,000,

the court or judge may, although there has been no declaration of mental disability, by order authorize and direct a person in possession or control of the estate or money to dispose of it in a manner and to an extent that the court or judge considers appropriate.

(2) A person given authority and direction by the court or judge under subsection (1) has and may exercise all the rights and powers with regard to the personal estate of the mentally infirm person or to money payable under a contract of insurance that the mentally infirm person would have or could exercise if the mentally infirm person was of full age and of sound and disposing mind.

(3) The court or a judge may order the costs of and incidental to an application under this section to be paid by the applicant or out of the estate or money dealt with under this section.

RSN1970 c234 s18

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Discharge of guardian

19. The court or a judge may, on the application of the guardian or of the person of whose estate he or she is the guardian, order that the guardian be discharged and make other orders that the court or judge considers necessary for the revesting in that person of property which was vested in the guardian under this Act.

RSN1970 c234 s19

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Notice to be sent to registrar

20. (1) The superintendent of the hospital shall, in accordance with subsection (3), send to the registrar, by hand or by registered mail, a notice in respect of every person who has been committed to the hospital under and in accordance with the Mental Health Act, and the notice shall set out

(a) the name, address and, where known, the age of that person;

(b) the date of admission of that person to the hospital;

(c) the names, known to the superintendent, of members of the immediate family and other close relatives of that person;

(d) information which the superintendent may have and which may help the registrar in locating property owned or held by that person; and

(e) the name of a person known or believed by the superintendent to be the guardian of that person.

(2) Subsection (1) shall not apply in respect of a person who is excluded from that subsection by order of the Deputy Minister of Health or some other person designated by order of the Minister of Health generally or specially for the purpose, upon that deputy minister or designated person being satisfied that the circumstances applicable to that person do not warrant the application of that subsection to him or her, provided, however, that by a later order that deputy minister may direct that the person shall be subject to that subsection.

(3) A notice which is sent under subsection (1) shall be sent within 14 days after the date of admission of a person who is admitted to the hospital.

(4) The registrar is the guardian of the estate of a person referred to in subsection (1) from the date on which he or she receives the notice sent to him or her under that subsection as if he or she had been appointed guardian under subsection 3(1), and the registrar is the guardian of that estate until

(a) the court or a judge makes an order appointing another person to be the guardian or confirming the appointment of a person who had been appointed guardian before the registrar received the notice; or

(b) he or she is discharged by the court or a judge under section 19.

(5) Subsection (1) does not apply to a person who is voluntarily a patient of the hospital.

(6) Where, while a patient of the hospital, a person who is voluntarily a patient of the hospital becomes committed under the Mental Health Act, the date of admission for the purposes of this section is the date he or she stops being a voluntary patient and becomes a committed patient in the hospital.

RSN1970 c234 s20; 1989 c12 s20

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Information respecting persons referred to in s.20

21. (1) Where, under section 20, the registrar becomes the guardian of the estate of a person referred to in subsection (1) of that section, the registrar may, while he or she is guardian, make use of the services and facilities of a department of the government of the province for the purposes of obtaining information concerning that person, his or her relatives and property.

(2) Where requested by the registrar to help him or her in obtaining the information referred to in subsection (1), a department to which that request is directed shall provide assistance and provide information that it can give and provide.

(3) The Deputy Minister of Health or other officer designated by the registrar shall, upon the written request of the registrar, make a full and thorough investigation as to the relatives of a person of whose estate the registrar is the guardian under section 20 and as to that person's estate, whether in possession, in action, in reversion, in remainder or in prospect, and that deputy minister or other officer shall provide the registrar with a written report of the results of that investigation.

(4) The superintendent of the hospital, or the person in charge of another institution for or having facilities for the care and treatment of patients suffering from mental and nervous diseases, shall, at the time of the admission of a patient suffering, or purported to be suffering, from a mental or nervous disease, obtain from persons accompanying that patient whatever information is available concerning that person's relatives and property, and that information shall be recorded in the records of the hospital or other institution.

RSN1970 c234 s21

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Where office of registrar vacant

22. (1) Where the office of registrar is vacant at the time the notice referred to in subsection 20(1) is sent to the registrar, the notice is presumed to be received by the registrar when that notice is received at the Registry of the Supreme Court, and, immediately upon the appointment of a registrar, the registrar shall become the guardian of the estate of the person covered by that notice, and, until that appointment, the Deputy Registrar of the Supreme Court shall act temporarily as guardian and has all the powers and shall perform the duties of the registrar.

(2) In the absence of the registrar, from illness or other cause, the Deputy Registrar of the Supreme Court has all the powers and shall perform the duties of the registrar under this Act.

RSN1970 c234 s22

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Probate or administration

23. (1) Where, under subsection 20(1),

(a) the registrar becomes the guardian of the estate of a person;

(b) that person dies leaving an estate not exceeding $1,500 in value; and

(c) an application for probate or other proof of title of the personal representative of the deceased person is not made within 1 month from the date that the registrar notifies, in writing and by registered mail, the executor named in the will of the deceased person, or where there is no executor named, the next of kin known to the registrar, of the deceased person that the person has died

probate or other proof of title of the personal representative of the deceased person may be dispensed with.

(2) The registrar may pay, from the estate, the debts, funeral and testamentary expenses of the deceased person and other amounts lawfully payable before distribution of the estate and pay or distribute the balance to the persons appearing to the registrar to be the persons beneficially entitled to the estate of the deceased person.

(3) In determining the persons to whom or the proportions in which the balance of the estate is to be paid or distributed under subsection (2), the registrar may have regard to payments made or expenses incurred by a person for or on account of burial expenses of the deceased person, and a payment or distribution made in accordance with this section shall have the same effect in law as if it were made by the personal representative of the deceased person.

(4) Notice to the executor or next of kin under subsection (1) shall be considered to be served 7 days after the date on which that notice is deposited in the post office for transmission to the executor or next of kin.

RSN1970 c234 s23

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Maintenance of dependants and preservation of property

24. The registrar may, in an informal and summary manner, obtain the written permission of a judge in chambers to the expenditure, upon terms and conditions that the judge may prescribe, of money in the estate of a person referred to in subsection 20(1) of which he or she becomes the guardian under section 20 for

(a) the maintenance of persons dependent on that person; or

(b) the preservation of that person's property,

and the judge may give permission and that permission shall be valid and capable of complete implementation.

RSN1970 c234 s24

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Registrar not required to preserve where no funds available

25. Nothing in this Act shall be construed to require the registrar, where under section 20 he or she acts as guardian of the estate of a person referred to in that section, to insure or otherwise provide for the preservation of that person's property where there are not available to him or her, in or from the estate, money which may be used for that purpose.

RSN1970 c234 s25

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Application by registrar to judge

26. Where the registrar becomes the guardian of the estate of a person under section 20 or another provision of this Act, he or she may make an application that a guardian who is appointed under section 3 may make, but an application by the registrar shall be made in chambers in the 1st instance, and the judge may direct that the matter shall be moved into court, and he or she may direct that an interested person, or, where there is a class of interested persons, 1 or more persons as representatives of that class, shall be notified of the application, and those persons are entitled to be heard.

RSN1970 c234 s26

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Ss.66 to 73 of the Judicature Act apply

27. Sections 66 to 74 of the Judicature Act shall apply to the registrar in respect of an estate of which the registrar becomes guardian under this Act.

1986 c42 Sch B

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Fees

28. The registrar may charge for his or her services, collect and account for in the manner prescribed by the regulations those fees, charges and expenses that may be prescribed by the regulations.

RSN1970 c234 s28

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Discharge of liability for losses

29. All sums required to discharge liability for a loss that the registrar would be personally liable to discharge if he or she were a private trustee shall be made good out of the assurance fund or out of the Consolidated Revenue Fund, but neither the registrar, nor the officers acting for, by or under him or her, nor the assurance fund, nor the Consolidated Revenue Fund is liable for a loss that would not have imposed liability upon a private trustee.

RSN1970 c234 s29

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Regulations

30. The Lieutenant-Governor in Council may make regulations

(a) imposing on the registrar duties in addition to those imposed by this Act, and prescribing the security to be given by the registrar and officers acting for, by or under him or her;

(b) prescribing the fees, charges and expenses applicable, for the purposes of section 28, under this Act and the application and disposal of those fees, charges and expenses;

(c) providing for the granting of exemptions from payment of fees or charges or the remission of fees or charges paid;

(d) respecting the transfer to and from the registrar of property;

(e) respecting the accounts to be kept and the auditing of them;

(f) for the establishment of an assurance fund for the purpose of meeting losses for which the registrar may be liable;

(g) respecting the establishment of accounts by the registrar for the purposes of this Act and respecting the purposes for which, the manner in which and conditions subject to which payments may be made into and out of an account or those accounts established by the registrar;

(h) fixing the rate of interest to be allowed upon money in the hands of the registrar under this Act and fixing the amount of interest to be charged upon advances made on behalf of an estate and the custody and control of securities held by him or her for investments;

(i) providing for the issuing or providing of certificates or other proof of the status of the registrar as guardian of an estate under section 20, the sufficiency of them and by whom those certificates or other proof of status shall be issued or provided, including the issuing, free of charge or otherwise, of letters of guardianship, or copies of them, out of the court without compliance with a requirement of law or of practice or procedure other than compliance with section 20;

(j) for constituting an advisory committee for the supervision of the investments or other dealings with property by the registrar under this Act and for providing for the remuneration by fees or otherwise of the members of the committee; and

(k) generally, to give effect to the purpose of this Act.

RSN1970 c234 s30

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Investment of money

31. Money held by the registrar that is available for investment may be invested in securities in which trustees are authorized to invest funds under the Trustee Act.

RSN1970 c234 s31

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Security by registrar not necessary

32. Notwithstanding a rule or practice or an Act requiring security, where the registrar has given security under the regulations with respect to a duty imposed on him or her under this Act, it is not necessary for him or her to give additional security for due performance of the same duty in an office to which he or she may be appointed by order of the court or under an Act.

RSN1970 c234 s32; 1986 c42 Sch A

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Rules

33. The rule committee appointed under the Judicature Act may make rules of practice and procedure for the purposes of carrying this Act into effect.

RSN1970 c234 s33; 1986 c42 Sch B

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Registrar may practise and charge fees

34. (1) Notwithstanding section 35 or the Judicature Act, or another Act, the registrar may practise and act as a barrister or solicitor in all matters concerning, arising out of or incidental to the carrying out of this Act or the regulations and may demand and receive fees and other compensation that may be prescribed in the regulations.

(2) Subsection (1) shall not be interpreted as authorizing a person who is not a barrister or a solicitor to so practise.

RSN1970 c234 s34; 1986 c42 Sch B

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Provision for paid assistance for registrar

35. Without limitation of the powers of the registrar as a guardian, where

(a) because of distance, lack of facilities, shortness of time or other cause; or

(b) because special skills or services which cannot be provided by the registrar are involved,

the assistance of other persons is required by the registrar in the performance of his or her duties under this Act, he or she may employ those persons and remunerate them out of the funds of the estate of which he or she is the guardian.

RSN1970 c234 s35

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Visiting privileges of registrar

36. The registrar may, at any time he or she considers desirable, visit the hospital or another place for the purpose of interviewing a person of whose estate he or she is the guardian under section 20.

RSN1970 c234 s36

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