The government could soon manage, sell and dispose of the properties of missing persons and the elderly if a bill becomes law.
Currently, the Public Trustee is empowered to administer the assets of people who’ve died without leaving wills and to ensure that these are distributed fairly among their heirs.
However the Public Trustee Amendment Bill (2017) proposes expanding these powers to include the assets of people that have been declared missing as well as aged and ailing adults.
“On application, the court may appoint the Public Trustee to act as a guardian for adults who are incapable of taking decisions by virtue of age, infirmity or any other reason that may be considered by the court,” says the proposed amendment bill.
A court order is needed for the Public Trustee to take over assets. In the case of missing individuals, the Public Trustee will have to make an application for the individual to be declared missing before being granted the powers to take charge of the assets by the court.
It is not clear whether the Trustee will also make the applications needed for the court to grant him power over the estates of the elderly and the unwell.
It is also unclear how the Public Trustee will relate to dependants and beneficiaries of these individuals although he will charge a fee for his guardianship services. The Public Trustee will also be empowered to receive payments on behalf of an elderly or infirm person under the guardianship arrangement.
Once the courts declare someone missing, the Public Trustee would be appointed and empowered to “sell, dispose or otherwise deal with the property”. The trustee would also settle debts and receive payments on behalf of these individuals.
Spouses and children of the missing person would be entitled to payments from the Public Trustee. If the missing person returns they would apply for return of the property through the courts.
If the individual is eventually declared dead, then normal succession laws take effect, including the option of administration of the property by the Public Trustee if there is no will.
According to the proposal, the Public Trustee will have the powers to manage “enemy property”.
The Armed Forces Act defines an enemy as a person who has gone against the Kenyan army as well as armed rebels, rioters and pirates. The amount of time that assets can be held by the trustee has been slashed from 12 years to seven.
After this, the assets will be transferred to the Consolidated Fund although the proposed changes make provisions for heirs to claim the money back.
The proposed law seeks to give the Public Trustee more autonomy, establishing it as a corporate entity rather than a department within the Office of the Attorney-General. Nevertheless, the AG will gain new powers to create rules to govern the operations of the Public Trustee.