Legal Guardianship and Estate

13 December 2021

Legal Guardianship and Estate

The purpose of this page is to provide information to retirees, beneficiaries and their families on the Funds policies and procedures with regard to retirees and adult beneficiaries who are less autonomous or can no longer manage their pension affairs.

The Fund’s policies and procedures with regard to retirees and beneficiaries who are less autonomous or can no longer manage their pension/financial affairs, as detailed below, are designed to ensure to the extent possible that benefits are paid to those that are entitled to receive them, and that there is proper management and accountability for the administration of the benefits. The Fund recognizes that its policies and requirements may lead to proceedings that can be costly and lengthy. All efforts are being made to alleviate unnecessary burden to retirees and beneficiaries. However, in this respect the Fund has to balance its practice with its fiduciary obligation to all Fund participants and beneficiaries. Certain safeguards are necessary in order to protect the Fund’s assets and minimize potential abuse of benefits paid to those who cannot manage their own pension affairs.

The Fund requires that beneficiaries affix an original signature on all Fund forms. Therefore, if you are unable to sign or manage your financial affairs, the Fund requires the appointment of a legal guardian to act on your behalf. In order for the Fund to recognize a legal guardian to act on your behalf, you must submit a full copy of the appropriate judicial authority’s decision to appoint a legal guardian for the management of your financial or pension-related affairs, the contact details of the legally appointed guardian, and a copy of the passport or official identification document of the legally appointed guardian that bears the owner’s photograph and signature. All documents must be in English or French or accompanied by a professional translation.

When is a legal guardian necessary and what are the responsibilities?

When does the Fund require the appointment of a legal guardian?

As a general rule, where a retiree or adult beneficiary is unable to manage his/her affairs due to ill health and/or infirmity emanating from advanced age, the Fund requires the appointment of a legal guardian to act on behalf of the retiree or beneficiary.

What documentation is required by the Fund to recognize a legal guardian appointed to act on behalf of a retiree or adult beneficiary?

The Fund’s policy requires that the guardian be appointed by the appropriate judicial authority in the retiree’s or beneficiary’s country of residence. Therefore the guardian must submit to the Fund:

(a) a full copy of the decision of the appropriate judicial authority in the retiree’s or beneficiary’s country of residence to appoint him/her as the guardian of the Fund’s retiree or beneficiary. The mandate of the legal guardian pursuant to the decision must include the management of the retiree’s or beneficiary’s financial affairs and/or pension-related affairs.

(b) the contact details of the legally appointed guardian. If more than one guardian is appointed, the Fund must receive the contact details of each legal guardian.

(c) a copy of the passport of the legally appointed guardian or another official identification document that bears the owner’s photograph and signature. If more than one guardian is appointed, the Fund must receive a copy of the official identification document of each legal guardian with their photograph and signature.

(d) if the legal guardian is an organization, an agency or trust, it must inform the Fund of the name of the employee or trustee who is authorized to sign documents on behalf of the retiree or beneficiary as his/her legal guardian, and provide the Fund with a copy of his/her passport or another official identification document that bears the owner’s photograph and signature.

All documents must be in English or French, which are the working languages of the UNJSPF, or accompanied by a professional translation into one of these languages.

What are the powers of the legal guardian acting on behalf of a retiree or beneficiary in relation to UNJSPF benefits?

A guardian who acts on behalf of a retiree or beneficiary must act within the scope of his/her appointment by the judicial authority and the limitations thereof. He/she can sign the Fund’s forms in areas where he/she is authorized to act on behalf of the retiree or beneficiary and send questions and requests for information to the Fund. A UNJSPF benefit can only be paid to a bank account in the name of the retiree or beneficiary.

Therefore, a guardian appointed to manage the monies of a retiree or beneficiary that does not have access to his /her bank account, should open a guardianship/trust bank account in the name of or on behalf of the retiree or beneficiary, or a joint bank account in the name of the guardian and the retiree or beneficiary, and fill out and send to the Fund the Payment Instruction Form accordingly, together with a copy of the bank account statement or a letter from the bank that confirms the name(s) on the bank account.

Requirements

What information is required by the Fund on forms and correspondence sent on behalf of the retiree or beneficiary?

The Fund’s forms or letters sent by the guardian must include the full name of the retiree or beneficiary, his/her retirement number, the full name of the guardian, his/her title (i.e. guardian of (name of retiree/beneficiary)) and the date.

What should be done if the appointment of the legal guardian has been cancelled, his/her mandate has been amended, or he/she has been replaced by another guardian?

The guardian must send to the Fund immediately any decisions or other documents, which amend or cancel his/her appointment as the guardian of the retiree or beneficiary.

Does the Fund only recognize court-appointed legal guardians or does it also recognize court appointments under other protection regimes?

Although this booklet refers solely to the term “guardian”, this term is used by the Fund in its generic form, and covers court appointments under different types of protection regimes available under different jurisdictions, including tutorship, conservatorship and curatorship.

Does the Fund recognize appointments that are not made by a court but registered by a governmental authority?

The Fund’s policy is that the third party (guardian) must be appointed by the appropriate judicial authority in the retiree’s or beneficiary’s country of residence. However, where the national law provides for alternative arrangements, including a mechanism under which a governmental authority oversees or approves the arrangement, such appointment is also recognized for the Fund’s purposes.

Examples of such arrangements can be found in the UK (e.g. registered lasting or enduring powers of attorney), Ireland and Canada (Quebec), where there are simplified processes for registration of powers of attorney under the national law managed by a central authority, such as the Office of the Public Guardian or the Office of Wards of Court. In such cases, the third party must submit to the Fund a full copy of the document which appoints the attorney or guardian of the retiree or beneficiary, registered and issued by the relevant authority. The document must be in English or French, which are the working languages of the UNJSPF, or accompanied by a professional translation into one of these languages.

Does the Fund accept third parties appointed under a power of attorney or affidavit?

The Fund does not recognize appointments of third parties by means of powers of attorney or affidavits (even if the affidavits were approved by a national court).

Other options

What if the legal guardian has been appointed on a temporary basis or for a limited duration?

The requirements listed above concerning legal guardians apply also to those appointed on a temporary basis or for a limited duration. The Fund recognizes that such appointments are only for the duration specified in the decision of the appropriate judicial authority. It is, therefore, the legal guardian’s obligation to send to the Fund immediately any decisions or other documents which extend, amend or cancel the appointment or appoints a permanent legal guardian to the retiree or beneficiary.

If a court decision to appoint a temporary guardian does not specify the length of the appointment, the temporary guardian must inform the Fund when court proceedings concerning the appointment of a permanent guardian are expected to take place, and send to the Fund any decisions issued thereof. If it is clear that the appointment is only temporary, the Fund will normally review the appointment six months after the initial guardianship appointment to determine whether or not payment should be suspended.

Under what circumstances does the Fund accept that a retiree or beneficiary, who can no longer affix his/her original signature on documents, will affix his/her thumbprint instead?

In cases where a retiree or beneficiary can no longer sign documents due to ill health, the Fund accepts that in lieu of an original signature the retiree or beneficiary may affix his/her original thumbprint on a document, provided it is duly authenticated as specified below. Note that authentication is required for each document on which a thumbprint is affixed. This arrangement can be exercised under the following conditions:

(a) the thumbprint of the retiree or beneficiary has to be duly authenticated by an official of the retiree’s former employing organization or officer of any UNJSPF member organization (such as a Human Resources Officer), a UNJSPF Official, a Government Official, a Notary Public or an attending physician. The person authenticating the retiree’s or beneficiary’s thumbprint must affix on the document their full name and title, the date, their stamp/seal of office, and, if applicable, also their license or index number, as well as an original signature.

(b) when the retiree or beneficiary uses his/her thumbprint in lieu of a signature for the first time, the Fund must receive a medical certificate or statement in English or French (or accompanied by a professional translation into English or French) on official stationary from his/her attending physician indicating the nature of the retiree’s or beneficiary’s medical condition, which prevents him/her from signing.

The above arrangement cannot be used in order to amend the retiree’s or beneficiary’s payment instructions or the “Designation of recipient of residual settlement” form (known as UNJSPF A/2 form). Furthermore, the Fund recommends that during the period when this arrangement is used, the retiree/beneficiary or his/her family or friends should start the proceedings for the appointment of a legal guardian for the retiree or beneficiary.

What if a retiree or beneficiary can still sign documents, however, given the passage of time the signature differs notably from the original signature the Fund has on file?

In cases where the signature of the retiree or beneficiary differs notably from the original signature the Fund has on file, the Fund will request the beneficiary or retiree to have his/her signature duly authenticated by an official in the retiree’s former employing organization or officer of any UNJSPF member organization (such as a Human Resources Officer), a UNJSPF Official, a Government Official or a Notary Public. The person authenticating the retiree’s or beneficiary’s signature must affix on the document their full name and title, the date, their stamp/seal of office, and, if applicable, also their license or index number, as well as an original signature. Signatures affixed by the retiree or beneficiary from that point onwards will have to match the authenticated signature.

Furthermore, the Fund recommends that during the period when this arrangement is used, the retiree/beneficiary or his/her family or friends should start the proceedings for the appointment of a legal guardian for the retiree or beneficiary.

Legal guardians for beneficiaries of child benefits who are under the age of 21 or disabled

A UNJSPF benefit payable to the child of a former participant or retiree of the Fund, when the child is under the age of 21 (minor) or disabled, is usually paid on the child’s behalf to the former participant or retiree, in accordance with UNJSPF Administrative Rule J.2(e).

However, if the child resides with a parent who is not the former participant or retiree of the Fund, payment of the UNJSPF child benefit will be made to the parent with whom the child resides. When the parents of the child are no longer alive or the child is in custody of a third party, the child’s benefit will be paid, on his/her behalf, to a legal guardian appointed for the child by the appropriate judicial authority in the child’s country of residence. As part of the Fund’s policy to ensure that benefits are paid to the person who is entitled to receive them under the Fund’s Regulations, the benefit of a minor or disabled child can only be paid to a guardianship/trust account in the name of or on behalf of the child, an account in the name of the child, or a joint account in the name of the legal guardian and the child. Furthermore, when a minor child turns 16 or when a disabled child can manage his/her financial affairs, the child’s benefit can be remitted directly to him/her.

Which documents must be submitted for recognition of a legal guardian for a minor or disabled child beneficiary?

To be recognized as the legal guardian for a minor or disabled child beneficiary the third party must submit to the Fund:

(a) a full copy of the decision of the appropriate judicial authority in the child’s country of residence to appoint a guardian for the child.
(b) the contact details of the legally appointed guardian. If more than one guardian is appointed, the Fund must receive the contact details of each legal guardian.
(c) a copy of the passport of the legally appointed guardian or another official identification document that bears the owner’s photograph and signature. If more than one guardian is appointed, the Fund must receive a copy of the official identification document of each legal guardian with their photograph and signature.
(d) a UNJSPF Payment Instruction Form signed by the legal guardian and stating the name of the child, the details of the guardianship/trust account in the name of or on behalf of the child, the child’s account, or the joint account in the name of the guardian and the child, and the name of the legal guardian.
(e) a copy of the bank account statement or a letter from the bank that confirms the name(s) on the bank account.

All documents must be in English or French, which are the working languages of the UNJSPF, or accompanied by a professional translation into one of these languages.

Payment to the estate

Upon the participant’s or retiree’s death the Fund first determines whether there is a survivor’s benefit payable under the Fund’s Regulations to the widow(er), divorced surviving spouse, children or secondary dependents. As long as there is a benefit payable to one or more of the above-beneficiaries by the Fund, no other payments are due under the Regulations (e.g. of a residual settlement). If there is no survivor’s benefit payable, the Fund will examine whether there is entitlement to payment of a residual settlement pursuant to Article 38 of the UNJSPF Regulations. A residual settlement is payable only if the total amount of the benefits paid to and on account of the late participant or retiree (including any survivor’s benefit) is less than the late participant’s or retiree’s own contributions to the Fund.

In that event, the difference would be paid to the person(s) and/or institution designated as a recipient by the late participant or retiree on the Fund’s form entitled “Designation of recipient of residual settlement” (known as UNJSPF A/2 form). The benefit is paid as a one-time lump sum payment. If there is no duly filled out and signed UNJSPF A/2 form in the Fund’s records, an amount will be paid to the late participant’s or retiree’s estate as a residual settlement. Note that in the case of a retiree’s death, there will not be a residual settlement payment due to his/her estate if he/she had elected to be paid, upon separation from service, the maximum lump-sum commutation of the benefit allowed (equivalent to the greater of the actuarial equivalent of 1/3 of the benefit or total contributions with compound interest), and the balance as a reduced monthly pension.

For more information about residual settlements, check the dedicated page.

What documents must the Fund receive in order to make a payment to the estate of a late participant or retiree?

The Fund must be provided with the following documents:

(a) a full copy of the decision to appoint an administrator or executor of the estate of the late participant or retiree issued by the judicial authorities.
(b) the contact details of the legally appointed administrator(s) or executor(s) of the estate. If more than one administrator or executor of the estate is appointed, the Fund must receive the contact details of each legally appointed administrator or executor.
(c) a copy of the passport of each legally appointed administrator or executor of the estate or another official identification document that bears the owner’s photograph and signature.
(d) normally the executor or administrator of the estate is requested to open an estate bank account or a legal guardianship/trust bank account. The Fund requires that the executor or administrator submit to the Fund a copy of the bank account statement or a letter from the bank that confirms the name(s) on the bank account.
(e) the UNJSPF Payment Instruction Form filled out and signed by the executor(s) or administrator(s) of the estate. If more than one administrator or executor to the estate is appointed, and the appointed administrators or executors request that payment be made in the name of only one of them, the Fund requires that the other administrator(s) or executor(s) submit his/her authorization for such a payment.

All documents must be in English or French, which are the working languages of the UNJSPF, or accompanied by a professional translation into either of these languages.

Can the Fund recover over payments from the estate of the late participant, retiree or beneficiary?

The Fund can recover from the estate of a late participant, retiree or beneficiary or from benefits payable to the survivors of a late participant or retiree any erroneous payments or overpayments that were made to the late participant, retiree or beneficiary (Article 43 of the UNJSPF Regulations and UNJSPF Administrative Rule J.9). Relevant provisions of the UNJSPF regulations

Disclaimer

If there is any ambiguity, inconsistency or conflict between the information provided here and the UNJSPF Regulations, Rules and Pension Adjustment System, any decisions will be based on the Regulations, Rules and Pension Adjustment System, and not the information contained in this page.