Business

Unclaimed moneys

BY VENICE WILLIAMS-GORDON

Sunday, March 17, 2019

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Under Section 16 of the Banking Act of Jamaica, every banking institution in Jamaica is obliged to file an annual return with the Bank of Jamaica.

This annual return enables the Government of Jamaica to recover unclaimed money (also referred to as dormant accounts). Section 40 of the said Act stipulates that money can only be considered unclaimed after the account has been dormant for a period of 15 years.

Recently, the Government of Jamaica indicated its desire to reduce this period significantly. While this is not official and is in the consideration stage, it is important for you to make the necessary preparation to prevent loss.

Section 40 of the Banking Act allows for the following procedure should the government seek to claim such money:

Section 40(1) allows the minister to inspect the annual report to determine all unclaimed money. This section also allows the minister to carry out three steps in an effort to claim this money:

1. Give full details of the money

2. State the period for which the money has remained dormant

3. State that the owner and/or claimant has no less than 1 year within which to make a claim against the money and this must be to the satisfaction of the bank or a court of competent jurisdiction.

Section 40(2) states that where the claimant fails to provide proof, after one year the money will become part of the revenue of Jamaica and the accountant-general shall keep a record of all such money.

Section 40(4) states that the unclaimed money shall be recoverable from the bank as debt owed to the government.

Section 40(5) states that the accountant-general shall pay the sum to any person who establishes a claim to the satisfaction of the accountant-general. (It is important to note that where there is unclaimed money at this stage, the government can make its claim).

Unclaimed money can occur in several instances, namely:

1. a deceased person

2. a person of unsound mind

3. a person who is suffering from Alzheimer's

4. a person who has migrated and has never returned home

5. a person who is an illegal immigrant

6. a person who is incarcerated.

DECEASED PEOPLE

Where a person is deceased, the deceased's family members must ensure that the estate of that person is administrated upon. It is irrelevant whether he/she has a Last Will and Testament or there is no will.

Where there is a will, a grant of probate can be applied for, and where there is no will, a grant of Letters of Administration can be applied for through the Supreme Court of Judicature of Jamaica.

Once this document is obtained, it can be used by the executor or administrator to deal with the affairs of the deceased's estate.

Please note that if your name is in the will as a beneficiary for money held in any bank account, you cannot take the deceased's will to the bank to receive the sum given to you by the deceased. You must seek the advice of an attorney to have the necessary application done. The bank does not have legal standing to give you the money as indicated in the will without a grant of probate.

PEOPLE OF UNSOUND MIND OR SUFFERING FROM ALZHEIMER'S

Some families are faced with family members who suffer from mental illness or Alzheimer's. The affected person may be living with the family, in state care or homeless, and management of his/her assets including bank accounts and property needs to continue so that the family can provide the best care for the person.

For this purpose, the Mental Health Act provides for an application to be made to the Supreme Court of Judicature of Jamaica for the management of his/her affairs.

Section 3 of the Mental Health Act details as set out below who can make such an application:

1. The closest relative of such a patient, being the husband or wife (husband or wife includes a person with whom the patient has resided for at least six months), may apply. However, if there is no husband or wife, any of the persons named in (a) to (h), in descending order of priority, may apply:

(a) son or daughter

(b) father

(c) mother

(d) brother or sister

(e) grandparent

(f) grandchild

(g) uncle or aunt

(h) nephew or niece.

2. Caregivers are not recognised under the Act to make such an application.

Once this application is made and the order is given by the court, this order will allow for the appointee(s) to act on behalf of the person who is mentally challenged or suffering from Alzheimer's.

PEOPLE WHO HAVE MIGRATED

When an individual owns a bank account or other property in Jamaica, and has migrated for many years and not returned home for whatever reasons, that individual risks losing money that has remained dormant in the account for over 15 years.

INCARCERATED

Individuals who are incarcerated also need to take steps to protect their money in the bank and other assets.

Protection for this category of people can be obtained by power of attorney. Consultation with an attorney will guide the affected party as to the right person to whom to give this power, and the pros and cons in formulating such a document.

Venice Williams-Gordon is an attorney-at-law at Lewis, Smith, Williams & Company.


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