DEATH waits for nobody and arrives unannounced for many. When it does, people often leave behind many affairs unsettled and much of their assets undistributed.
There to help attend to these affairs and the assets is the Office of the Public Curator. This is one of the least understood and appreciated agencies of Government. The office is attached to the Department of Attorney-General and Justice.
It is established by the Public Curator Act 1951. Apart from this law, it is further charged with administering the Wills and Probate Act 1966 which enables it to act as a trustee for wills, deeds of trust and other trust investments or to act as executor, distributor and administrator of deceased estates or insolvent estates.
It is further charged with certain aspects of the Insolvency Act 1951 and the Public Health Act chapter 226, the latter insofar as it appoints the Public Curator to act as trustee or manager of properties or affairs of persons certified insane, infirm or incapable of managing their own affairs.
The parliamentary Public Accounts Committee (PAC) in April 2005 conducted an inquiry to establish the standard to which and the competence and honesty with which the Office of the Public Curator has fulfilled its role as the trustee of estates, and found it terribly wanting.
The inquiry included a detailed audit into the affairs of the office undertaken by the Auditor-General. As a result of the audit report and other evidence taken in this inquiry, the PAC made findings which are highly critical of the performance of the Office of the Public Curator over many years.
In particular, the PAC has identified incidents of fraud and criminal conduct, mismanagement of estates, breach of trust and breach of fiduciary duties on the part of the Public Curator and his agents, contractors or consultants. The committee referred various persons for further investigations and possible prosecution for breaches of their statutory obligations which, although submitted to Parliament in 2006, remains outstanding.
In the words of the PAC, the office is a “national disgrace”. Some 19,600 estates remain unresolved – some for more than 15 years. Another 680 properties remain under trust – many for years with no resolution of estates. More than 700 properties were found to have been mishandled or cannot be found or accounted for.
The PAC noted in its report to Parliament: “The history of the Office of the Public Curator over the last decade, shows a disregard of the requirements of law by managers and staff of the office, a failure to carry out statutory duties, a clear failure to understand or implement the basic duties of a trustee, instances of theft and fraud by staff and third parties and an almost total failure of the office to keep, submit or understand accounts and financial reports.”
The failure of the Office of the Public Curator to attend to its duties and properly and lawfully service estates may have exposed the State to significant liability. Lawsuits are currently pending which will, if successful, cost the State tens of millions of kina. One law suit filed in April is suing the State for K45 million.
Monies allocated to the office by the Government have been misused and misapplied by the Public Curator and the Office of the Attorney-General. Estate monies, property and assets have been misused and misapplied by the Public Curator and the Office of the Attorney-General.
The Public Curator, Paul Wagun, in his testimony, submitted to the PAC, admitted mostly that the above summation of the state of affairs of his office was accurate but he blamed it on the Government, which he said had repeatedly failed to adequately and properly fund and resource it.
This is a damning indictment of an office that is part of the Justice and Attorney-General Department. If this is happening within the Department of Justice, then you ask what must be happening in other agencies and departments of the Government?
It always falls back to the Government and how it funds key agencies. Just last week, evidence was given to the parliamentary committee investigating Asian-owned and operated businesses, indicated that most of the regulatory arms of Government which deal with foreign nationals and businesses are under-resourced and severely understaffed.
In almost every report of the Auditor-General into government institutions, the same complaint is made, that of under funding, under staffing and lack of capacity. You wonder then what happens to the millions of kina that are budgeted every year for the departments.
Almost three quarters of the budget goes to recurrent expenditure, which is mostly Government departments and agencies.