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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
NSW Trustee and Guardian Bill 2009
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The objects of this Bill are:
(a) to constitute the NSW Trustee and Guardian as a statutory corporation and to
confer on it the functions currently exercised by the Public Trustee and the
Protective Commissioner, and
(b) for that purpose, to repeal and re-enact and update, with some modifications,
the provisions of the Public Trustee Act 1913 and the Protected Estates Act
1983.
Outline of provisions
Chapter 1 Preliminary
Clause 1 sets out the name of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or days to be
proclaimed.
Clause 3 defines words and expressions used in the proposed Act.
b2009-034-07.d14
NSW Trustee and Guardian Bill 2009
Explanatory note
Clause 4 repeals the Public Trustee Act 1913 and the Protected Estates Act 1983.
Chapter 2 Constitution of NSW Trustee
Part 2.1 Constitution and management of NSW Trustee
Clause 5 constitutes the NSW Trustee and Guardian (the NSW Trustee).
Clause 6 provides that the NSW Trustee is to be a NSW Government agency (that
is, a statutory body representing the Crown).
Clause 7 provides for the appointment of the Chief Executive Officer of the NSW
Trustee, who is to be responsible for the day-to-day management of the affairs of the
NSW Trustee.
Clause 8 enables an acting Chief Executive Officer to be appointed during the illness
or absence of the Chief Executive Officer or a vacancy in the office of the Chief
Executive Officer.
Clause 9 enables the NSW Trustee and the Chief Executive Officer to delegate their
functions.
Part 2.2 General functions
Clause 10 confers on the NSW Trustee functions that are conferred or imposed on it
by or under the proposed Act or any other Act and also confers on it ancillary
functions. The NSW Trustee may not employ staff, staff are to be provided under the
Public Sector Employment and Management Act 2002.
Clause 11 confers on the NSW Trustee the trustee and estate management functions
previously conferred on the Public Trustee and also the financial management
functions on behalf of certain incapable and missing persons previously conferred on
the Protective Commissioner. It also makes it clear that the NSW Trustee may
prepare wills and carry out professional services in connection with wills, probate
and administration.
Clause 12 re-enacts, and applies to the NSW Trustee, provisions that permit the
NSW Trustee to be appointed as a trustee and as a sole trustee in the place of
2 original trustees. The existing prohibition on appointment contrary to a trust
instrument is retained.
Clause 13 re-enacts, and applies to the NSW Trustee, a provision that enables the
NSW Trustee to refuse to act in a trust capacity. The prohibition relating to trusts that
may not be accepted is also re-enacted.
Clause 14 re-enacts, and applies to the NSW Trustee, a provision enabling the
Supreme Court to waive the requirement for the consent of a person to the
appointment of the NSW Trustee as a trustee.
Clause 15 re-enacts, and applies to the NSW Trustee, provisions that regulate the
functions of joint trustees where the NSW Trustee is a joint trustee, including
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Explanatory note
provision for money and property under the trustees' control to be dealt with in the
same way as if the NSW Trustee were the sole trustee.
Clause 16 re-enacts the current powers of the Public Trustee and the Protective
Commissioner relating to property and confers them on the NSW Trustee. The
current power to grant and renew leases for 10 years is applied to both the trust
capacities (that is wills, trustee and deceased estate administration functions) and
protective capacities (that is, the functions relating to management of the affairs of
persons who are incapable of managing their affairs and missing persons) of the
NSW Trustee.
Clause 17 re-enacts, and applies to the NSW Trustee, provisions allowing money
held on trust to be advanced for the maintenance, education, advancement or benefit
of a minor or incapable person and makes it clear that this power will extend to past
or future maintenance. Existing powers to obtain Supreme Court directions relating
to money held to or in respect of such persons, and existing exonerations, are also
re-enacted.
Clause 18 re-enacts a provision allowing the payment of small amounts owed by a
person who has died without waiting for administration of the person's estate.
Clause 19 re-enacts, and applies to the NSW Trustee, a provision releasing the NSW
Trustee from any requirements to provide a bond or other security before being
appointed in a trust capacity.
Clause 20 enables the NSW Trustee to appoint agents, including a power to appoint
registrars and deputy registrars of Local Courts as agents, and to employ persons to
advise or assist it.
Clause 21 enables the NSW Trustee when acting in one capacity (for example, a
trust capacity) to sue itself when acting in another capacity (for example, a protective
capacity). The NSW Trustee may apply to the Supreme Court for directions in any
such case.
Chapter 3 Deceased estates
Part 3.1 Appointment of NSW Trustee as executor or
administrator or collector under order to collect
Clause 22 enables the Supreme Court to grant probate of a will or administration of
any estate to the NSW Trustee.
Clause 23 entitles the NSW Trustee to a grant of administration of an intestate estate
where the deceased person left property in New South Wales if administration of the
estate has not been previously granted, has been revoked or the administrator dies
without completing the administration.
Clause 24 enables the Supreme Court to transfer administration of an estate to the
NSW Trustee on application by an executor or administrator, whether or not there is
any other existing executor or administrator. Existing provisions about the effect of
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Explanatory note
such a transfer and the liability of former executors and administrators and the NSW
Trustee are re-enacted.
Clause 25 enables the Supreme Court to order the NSW Trustee to act as the
collector of an estate of a person if there are reasonable grounds to suppose that the
person has died intestate leaving property in New South Wales. Existing provisions
prohibiting distribution of the estate without special authorisation by the Court are
re-enacted.
Part 3.2 Small estates
Division 1 Elections to administer small estates
Clause 26 re-enacts provisions enabling small estates to be dealt with by filing an
election to administer instead of applying for probate or administration where
probate or administration has not previously been obtained. On an election being
filed, the NSW Trustee is taken to have been appointed as the executor or
administrator of the estate.
Clause 27 re-enacts provisions enabling small estates to be dealt with by filing an
election to administer instead of applying for probate or administration where an
executor or administrator has died and part of the estate is unadministered. On an
election being filed, the NSW Trustee is taken to have been appointed as the
administrator de bonis non of the unadministered estate.
Clause 28 provides for administration under the proposed Division to end if an estate
is found to be worth more than the amount required to be dealt with as a small estate.
The NSW Trustee may obtain probate or administration in the ordinary manner.
Clause 29 provides for administration under the proposed Division to end if a later
will, or a will, is found. The NSW Trustee may obtain probate or administration in
the ordinary manner.
Clause 30 provides for the form and advertisement of notices of elections under the
proposed Division.
Division 2 Small estates for which probate or administration
not required
Clause 31 re-enacts, and applies to the NSW Trustee, provisions which enable
certain small estates to be dealt with by the NSW Trustee, after giving notice in
accordance with the regulations, as if probate or administration had been granted to
the NSW Trustee.
Part 3.3 General
Clause 32 re-enacts, and applies to the NSW Trustee, a provision which excuses the
NSW Trustee from having to file or pass accounts if acting alone in relation to an
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Explanatory note
estate or when acting jointly (unless the other person wishes to claim commission or
if ordered to file or pass accounts by the Supreme Court).
Clause 33 sets out the entitlement of the NSW Trustee to costs out of estates where
the NSW Trustee applies for probate or administration.
Clause 34 re-enacts, and applies to the NSW Trustee, provisions relating to the
obligation to repay the proceeds of the sale of goods of a person for whom the NSW
Trustee is not acting in a trust capacity.
Clause 35 provides for the NSW Trustee to pay to the equivalent body in another
State or Territory, or a country recognised by the regulations for the purpose of the
proposed section, (the Public Trustee of a reciprocating State) money collected
under an order to collect relating to a person who was domiciled in that reciprocating
State. It also provides for the payment to the NSW Trustee of the proceeds of an
estate by a Public Trustee of a reciprocating State that is acting as the collector of an
estate of a person who was domiciled in New South Wales when the person died.
Clause 36 re-enacts provisions that preserve the appointment of a specified person
appointed under a will to conduct legal or other business of an estate for which the
NSW Trustee is the executor or administrator. The NSW Trustee is not liable for any
act or omission of that person.
Clause 37 requires the NSW Trustee to be notified of debts, shares, property and
other assets of a deceased person whose estate is vested in the NSW Trustee.
Chapter 4 Management functions relating to
persons incapable of managing their
affairs
Part 4.1 Preliminary
Clause 38 defines words and expressions used in the proposed Chapter.
Clause 39 sets out the duties of persons exercising functions under the proposed
Chapter with respect to protected persons and patients. The duties reflect those
established under the Guardianship Act 1987.
Clause 40 enables an order for the management of an estate under the proposed
Chapter to be made for part of the estate.
Part 4.2 Orders by Supreme Court that estates of
persons subject to management
Clause 41 re-enacts the power of the Supreme Court to declare that a person is
incapable of managing his or her own affairs and to appoint a suitable person as the
manager of the person's estate or to commit the management of the person's estate
to the NSW Trustee.
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Explanatory note
Clause 42 enables orders for the management of estates of persons to be made by the
Supreme Court if a finding of incapacity has been made in another State or Territory
or a country to which the proposed section applies.
Part 4.3 Orders for management of estates of mental
health patients
Division 1 Orders by MHRT
Clause 43 re-enacts provisions requiring information about the question of capacity
to manage affairs to be given by an authorised medical officer who is bringing a
person before a mental health inquiry (that is, an inquiry to determine whether a
person should be involuntarily detained in a mental health facility) under the Mental
Health Act 2007.
Clause 44 requires the Mental Health Review Tribunal (the MHRT) to order that the
estate of a person be subject to management under the proposed Act if the MHRT has
ordered the detention of the person in a mental health facility and it is satisfied that
the person is not capable of managing his or her own affairs. Currently, the MHRT
must make a management order unless it is satisfied that a person is capable of
managing his or her own affairs. A person the subject of such an order or any such
order under any other provision of the proposed Part is a protected person.
Clause 45 requires the MHRT to consider the capacity of a person to manage his or
her own affairs after reviewing the person's case under the Mental Health (Forensic
Provisions) Act 1990 and order that the estate of a person be subject to management
under the proposed Act if the MHRT has ordered the detention of the person in a
mental health facility and it is satisfied that the person is not capable of managing his
or her own affairs. Currently, the MHRT must make a management order unless it is
satisfied that a person is capable of managing his or her own affairs.
Clause 46 enables the MHRT, on application, to consider the capacity of a person to
manage his or her own affairs and to order that the estate of a person be subject to
management under the proposed Act if it is satisfied that the person is not capable of
managing his or her own affairs. Currently, the MHRT must make a management
order unless it is satisfied that a person is capable of managing his or her own affairs.
Clause 47 re-enacts a provision enabling the MHRT to make interim management
orders but limits the period of such orders to 6 months.
Clause 48 re-enacts a provision enabling the MHRT to review an interim
management order.
Clause 49 re-enacts a provision providing for an appeal to the Supreme Court by the
protected person against a management order made by the MHRT.
Clause 50 re-enacts a provision providing for an appeal to the Administrative
Decisions Tribunal (the ADT) by the protected person against a management order
made by the MHRT.
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Explanatory note
Clause 51 re-enacts a provision that requires the MHRT, on request, to give formal
written reasons for a decision to make a management order.
Clause 52 provides that the estate of a person ordered by the MHRT to be subject to
management is committed to the management of the NSW Trustee, subject to any
special order of the Supreme Court.
Division 2 Applications by patients who are not protected
persons
Clause 53 re-enacts, and applies to the NSW Trustee, a provision that enables the
NSW Trustee to undertake the management of the estate of a patient in a mental
health facility, on application by the patient or, if the patient is under 18 years, on
application by the person having parental responsibility for the patient.
Part 4.4 Orders for management of estates of missing
persons
Clause 54 re-enacts the provision conferring power on the Supreme Court to declare
that a person is a missing person and to make a management order. The Supreme
Court may appoint a suitable person as the manager of the missing person's estate or
commit the management of the missing person's estate to the NSW Trustee. A person
subject to such an order is a managed missing person.
Part 4.5 Management of estates
Division 1 Management of estates by NSW Trustee
Clause 55 applies the proposed Division to the estate of a protected person or
managed missing person or patient (a managed person) that is committed to the
management of the NSW Trustee.
Clause 56 confers on the NSW Trustee, in respect of the management of the estate
of a managed person, all necessary and incidental functions and such other functions
as are directed or authorised by the Supreme Court.
Clause 57 confers on the NSW Trustee, for the purposes of exercising its protective
capacities, all the functions of a managed person (including those that the person
would have if not under incapacity or missing).
Clause 58 re-enacts, and applies to the NSW Trustee, provisions conferring power
to execute and sign documents in the name of and on behalf of a managed person and
relating to the effect of any such document.
Clause 59 sets out the things for which money of the estate of a managed person may
be used, including for the payment of debts and engagements, repayment of expenses
chargeable to the estate, the person's funeral expenses, maintenance of dependants,
maintenance of the person and the preservation and improvement of the estate.
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NSW Trustee and Guardian Bill 2009
Explanatory note
Clause 60 enables the NSW Trustee to pay money, or hand over chattels or
documents, of the estate of a protected person to the person or another person as
directed if the person is absent from a mental health facility.
Clause 61 re-enacts, and applies to the NSW Trustee, a provision conferring
jurisdiction on the Supreme Court, on application, to give necessary directions with
respect to the exercise by the NSW Trustee of its protective capacities.
Clause 62 re-enacts, and applies to the NSW Trustee, a provision enabling an
application to be made to the ADT for a review of a decision by the NSW Trustee
made in connection with the exercise of its functions under the proposed Division or
a decision that is of a class prescribed by the regulations for the purposes of the
proposed section.
Division 2 Management of estates by other persons
Clause 63 applies the proposed Division to the estate of a managed person that is
managed by a person other than the NSW Trustee.
Clause 64 re-enacts, and applies to the NSW Trustee, provisions enabling the
Supreme Court and the NSW Trustee to make orders as to the administration and
management of the estates of managed persons, including orders in connection with
authorising, directing and enforcing the functions of managers. The Supreme Court
may also make orders in connection with supervising the exercise of functions of
managers. Any order by the NSW Trustee is subject to the regulations or any
direction by the Supreme Court or, in the case of a person under guardianship, the
Guardianship Tribunal.
Clause 65 re-enacts, and applies to the NSW Trustee, provisions enabling the
Supreme Court and the NSW Trustee to make orders as to the property of the estate
of a managed person. Any order by the NSW Trustee is subject to the regulations or
any direction by the Supreme Court or, in the case of a person under guardianship,
the Guardianship Tribunal.
Clause 66 re-enacts, and applies to the NSW Trustee, a provision conferring on the
NSW Trustee power to make orders authorising managers to have necessary and
incidental functions for the management and care of a managed estate and to give the
manager direction in respect of such orders. Any order by the NSW Trustee is subject
to the regulations or any direction by the Supreme Court or the Guardianship
Tribunal (in the case of a person under guardianship).
Clause 67 confers on the manager of an estate power to execute and sign documents
in the name of and on behalf of a managed person, in accordance with an order or
direction of the Supreme Court or the NSW Trustee or the Guardianship Tribunal (in
the case of a person under guardianship), and provides for the effect of any such
document.
Clause 68 re-enacts a provision enabling the Supreme Court and the Guardianship
Tribunal to require the manager of an estate to provide security in respect of the
management. Any such security must be approved by the NSW Trustee and the NSW
Trustee is to ensure compliance with the conditions of any such security.
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Explanatory note
Clause 69 enables the manager of an estate to lodge money of an estate with the
NSW Trustee.
Clause 70 re-enacts, and applies to the NSW Trustee, a provision enabling an
application to be made to the ADT for a review of a decision by the NSW Trustee
made in relation to the functions of a person appointed as a manager.
Division 3 Management of estates generally
Clause 71 re-enacts the provision suspending the power of a managed person to deal
with so much of his or her estate as is subject to management. It continues the power
of the manager to authorise the managed person to deal with part of the estate and
also continues the entitlement to seek a review by the ADT of a decision by the NSW
Trustee relating to an authorisation.
Clause 72 re-enacts, and applies to the NSW Trustee, the provision requiring
consideration of whether consultation with the managed person or his or her relatives
should be undertaken before taking any action with respect to the estate of the person
and requiring consultation if appropriate.
Clause 73 enables the NSW Trustee to authorise payments from a managed person's
estate for the temporary provision of maintenance and other necessary requirements
of the managed person or the managed person's estate pending the making of a
management order.
Clause 74 confers on the NSW Trustee power to prepare a financial plan for the
estate of a managed person and to charge a fee for doing so.
Clause 75 requires the NSW Trustee or other manager of the estate of a managed
person, as far as is reasonably practicable, to ensure that items of a personal nature
are preserved if the managed person or the relatives of the managed person have
requested they be preserved.
Clause 76 enables the NSW Trustee or other manager of the estate of a managed
person to use property of the estate for gifts to relatives or close friends of a seasonal
nature or for a special event or for donations of a nature that the managed person
made or would reasonably be expected to make. A gift must be of an amount that is
reasonable in the circumstances, including having regard to the size of the estate.
Clause 77 re-enacts a provision that enables the cost of the improvement of the
property of a managed person to be charged, with interest, on the improved property
or other property of the estate. Such a charge cannot confer a right of foreclosure or
sale during the life of the managed person and is subject to a restriction that interest
be able to be paid out of the income of the estate.
Clause 78 re-enacts a provision that confers power on the Supreme Court to order
that a manager exercise powers on behalf of and in the name of the managed person
that the managed person has as a trustee or guardian and provides for the effect of
such an exercise of power.
Clause 79 re-enacts a provision that confers power on the Supreme Court to dissolve
a partnership if a member of the partnership becomes a managed person.
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Explanatory note
Clause 80 enables the manager of the estate of a managed person to require, by
written notice, the person who has custody of the managed person's will to provide
a certified copy of the will within 14 days. It will be an offence, without reasonable
excuse, to fail to comply with any such notice or order. A person who has custody of
the will may obtain a direction from the Supreme Court that the person is not required
to provide a copy of the will.
Clause 81 enables the NSW Trustee to exercise in NSW functions relating to the
estate of an interstate protected person, if authorised to do so by the equivalent body
in another State or Territory or in a country recognised by the regulations for the
purpose of the proposed section (the Public Trustee of a reciprocating State). The
NSW Trustee may also, by notice in writing, authorise the Public Trustee of a
reciprocating State to exercise specified management functions of the NSW Trustee
in relation to the estate of a managed person in the reciprocating State.
Clause 82 re-enacts a provision preserving uses, trusts and other rights attached to
property of a managed person that is exchanged on behalf of the managed person.
Clause 83 re-enacts a provision that protects the interests of a managed person and
any beneficiary of a managed person where property of the managed person is
disposed of or otherwise dealt with under the proposed Act.
Clause 84 provides that a managed person may give a power of attorney even though
the estate of the person is subject to management. The effect of a management order
on existing powers of attorney is dealt with in amendments made to the Powers of
Attorney Act 2003 by Schedule 2.46 [6] to the proposed Act.
Part 4.6 Suspension or termination of management
Division 1 Revocation of management orders
Clause 85 provides for the termination of the management of an estate under the
proposed Act if the management order is revoked.
Clause 86 enables the Supreme Court, on application by a protected person, to
revoke a declaration that a person is incapable of managing his or her affairs and to
revoke a management order and make any other necessary orders to give effect to
that order.
Clause 87 enables the Supreme Court, on application by a managed missing person
or other person, to revoke a declaration that a person is a missing person and to
revoke a management order and make any other necessary orders to give effect to
that order.
Clause 88 enables the MHRT, on application by a protected person, to revoke the
management order.
Explanatory note page 10
NSW Trustee and Guardian Bill 2009
Explanatory note
Division 2 Termination by NSW Trustee
Clause 89 enables the NSW Trustee, by certificate, to terminate management of the
estate of a managed person who ceases to be under guardianship or to be a patient if
the NSW Trustee is satisfied that the person is capable of managing his or her own
affairs.
Clause 90 requires the NSW Trustee to notify a managed person who ceases to be
under guardianship or to be a patient and who the NSW Trustee is not satisfied is
capable of managing his or her affairs of the person's right to apply for revocation of
the order. Pending such a revocation, the NSW Trustee may, at its discretion,
continue to manage the person's estate.
Clause 91 enables the NSW Trustee, by certificate, to terminate management of the
estate of a managed person who ceases to be a missing person.
Clause 92 enables the NSW Trustee, on application by a person or a patient who is
not a protected person or the person having parental responsibility for that person, to
terminate management of the estate of the person.
Division 3 Termination on death
Clause 93 terminates the management of the estate of a managed person if the person
dies.
Clause 94 provides for the NSW Trustee to pay money, and hand over chattels or
documents, of the estate of a managed person who has died to the legal representative
of the managed person, subject to any order of the Supreme Court and proposed
section 95.
Clause 95 re-enacts a power to pay money, and hand over chattels or documents, to
a beneficiary of the estate of a managed person without probate or administration of
the estate having been granted and without legal proof of the right or title of the
beneficiary.
Clause 96 re-enacts, and applies to the NSW Trustee, a power to complete
transactions relating to the estate of a managed person that were commenced before
the death of the person.
Division 4 General matters relating to termination of
management of estates
Clause 97 sets out the circumstances in which the NSW Trustee may continue to act
as the manager of an estate after the occurrence of a termination event, pending proof
of the event.
Clause 98 provides for the NSW Trustee to pay money, and hand over chattels or
documents, of the estate of a managed person (other than a person who has died) to
the managed person on termination of the management.
Clause 99 re-enacts, and applies to the NSW Trustee, a provision that, on
termination of management, provides for the acts of the NSW Trustee as the manager
Explanatory note page 11
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Explanatory note
of the estate of the managed person to have continuing force as if they had been done
by the managed person not suffering from incapacity.
Clause 100 re-enacts, and applies to the NSW Trustee, a power to sell unclaimed
personal effects of a managed person after 2 years after management of the estate is
terminated and provides for the payment and recovery of the proceeds.
Chapter 5 Investments and funds
Part 5.1 Investments
Clause 101 enables the NSW Trustee to invest funds held in its trust or protective
capacities in accordance with the Trustee Act 1925 and also enables other managers
of estates of managed persons to so invest funds of those estates.
Clause 102 re-enacts, and applies to the NSW Trustee, a power to purchase real
estate from the estate of a managed person and a power to invest in the preferred
investments (if known) of the managed person.
Part 5.2 Common funds and Reserve Fund
Clause 103 requires the NSW Trustee to keep a separate account with respect to each
trust matter and each managed estate.
Clause 104 enables the NSW Trustee to establish one or more common funds and to
pay into those funds money in respect of one or more trust matters or managed
estates. Any such amounts are held on trust by the NSW Trustee. The NSW Trustee
may establish portfolios and accounts within a common fund and may establish it on
the basis of a unitised system or other basis.
Clause 105 provides that trust funds or protective funds, amounts payable from the
Reserve Fund, certain money paid into court and other money required to be so paid
by law may be included in a common fund. Funds must not be included if payment
to the common fund is prohibited by an applicable trust instrument or a person who
jointly holds funds with the NSW Trustee objects.
Clause 106 requires investment income from a common fund to be applied for
investments, to the Reserve Fund, proportionately to the relevant accounts from
which the fund is derived and for payment of the costs incurred by the NSW Trustee
in the exercise of functions under the proposed Act. The Director-General of the
Attorney General's Department must approve the maximum amount of payments for
costs.
Clause 107 enables the NSW Trustee to determine policies relating to the nature,
management and operation of a common fund.
Clause 108 enables the NSW Trustee to sell and withdraw investments belonging to
a common fund for the purpose of exercising functions in a trust or protective
capacity and to withdraw from a common fund amounts on account of a particular
matter in which the funds for a particular matter are invested.
Explanatory note page 12
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Explanatory note
Clause 109 requires the NSW Trustee to establish a Reserve Fund, which is to be
applied for repayment to the common fund of losses on investments, payment of
costs of protecting investments, certain legal costs and other costs that are not
properly chargeable against a particular estate or trust or able to be paid out of a
particular estate or trust.
Clause 110 enables the NSW Trustee to make advances from a common fund for any
purpose of or relating to a trust matter or managed estate and also enables the NSW
Trustee to advance to a person beneficially entitled to an estate or trust an amount not
exceeding half of the value of the person's beneficial interest. Interest is payable on
any such advance and any such advance is a charge on the assets of the estate or trust.
Chapter 6 General
Part 6.1 Fees and charges
Clause 111 enables the NSW Trustee to charge fees and provides for the amount of
the fees to be prescribed by the regulations.
Clause 112 enables the NSW Trustee to retain or pay from trust property any costs
that it could retain or pay if it were a private trustee.
Clause 113 enables the NSW Trustee to retain or pay from a managed estate costs
incurred in the care and management or supervision of the estate. Such costs are
chargeable whether or not management of the estate is terminated.
Clause 114 enables the NSW Trustee to recover any costs due or payable to the
NSW Trustee as a debt in a court of competent jurisdiction.
Clause 115 enables the Supreme Court and the NSW Trustee to order the payment
from the estate of a managed person of costs with respect to actions taken to comply
with an order or direction under the proposed Act or a transfer or conveyance under
Chapter 4 of the proposed Act or for a specified amount of remuneration for a
manager. The NSW Trustee may only make such an order in relation to costs arising
from an order or direction given by the NSW Trustee or work carried out by a
manager for the purposes of such an order or direction.
Part 6.2 Miscellaneous
Clause 116 provides that the NSW Trustee may require, by notice in writing, a
person to provide specified information or records in connection with a responsibility
of the NSW Trustee when acting in a protective capacity.
Clause 117 confers on the Supreme Court, on application by the NSW Trustee,
power to set aside the disposition of an interest in real or personal property by a
mental health patient while a managed person.
Clause 118 provides for orders of the NSW Trustee under the proposed Act to have
effect according to their tenor and makes it an offence to fail, without reasonable
excuse, to comply with an order or direction of the NSW Trustee.
Explanatory note page 13
NSW Trustee and Guardian Bill 2009
Explanatory note
Clause 119 re-enacts, and applies to the NSW Trustee, a provision requiring a
person who obtains an order directing payment to be made to the NSW Trustee or an
order vesting property in the NSW Trustee or appointing the NSW Trustee as a
trustee, executor or administrator to serve a copy of the order and other information
on the NSW Trustee.
Clause 120 re-enacts, and applies to the NSW Trustee, a provision appropriating the
Consolidated Fund for the discharge of certain liabilities of the NSW Trustee that it
would be personally liable to discharge if it were a private trustee. It also re-enacts
the exclusion from liability of the NSW Trustee for acts that do not arise out of an act
or omission of its staff.
Clause 121 contains provisions excluding the Chief Executive Officer and other
staff of the NSW Trustee from personal liability for acts done in good faith for the
purpose of executing the proposed Act or any other Act or the functions of the NSW
Trustee.
Clause 122 provides for certificates by the Chief Executive Officer relating to the
appointment of the NSW Trustee as the administrator or executor of an estate, a
trustee or as manager of an estate to have evidentiary effect.
Clause 123 re-enacts, and applies to the NSW Trustee, a power to direct a specified
person to visit a managed person and report on the state of mind, bodily health and
general condition of the managed person and on the care and treatment of the
managed person.
Clause 124 provides for the service of documents on the NSW Trustee.
Clause 125 provides that proceedings for an offence under the proposed Act are to
be dealt with summarily.
Clause 126 enables the Director-General of the Attorney General's Department to
require the NSW Trustee to submit a budget to the Director-General in relation to the
NSW Trustee's costs, including projected costs.
Clause 127 provides that savings, transitional and other provisions are contained in
proposed Schedule 1.
Clause 128 enables the Governor to make regulations for the purposes of the
proposed Act.
Schedule 1 Savings, transitional and other
provisions
Schedule 1 contains savings, transitional and other provisions consequent on the
enactment of the proposed Act.
The Schedule:
(a) provides for the construction of references in laws and documents to the Public
Trustee, the Protective Commissioner and related matters, and
Explanatory note page 14
NSW Trustee and Guardian Bill 2009
Explanatory note
(b) provides for the exercise by the NSW Trustee of functions relating to matters
currently being dealt with by the Public Trustee and the Protective
Commissioner, and
(c) continues in force existing regulations (that would otherwise be repealed), and
(d) abolishes the offices of the Public Trustee and the Protective Commissioner,
and
(e) provides for the NSW Trustee to be the universal successor of the corporations
sole established under the Public Trustee Act 1913 and the Protected Estates
Act 1983 (the repealed Acts), and
(f) provides for the continuing operation of existing common funds and reserve
funds under the repealed Acts, while enabling parts of the existing Interest
Suspense Account under the Public Trustee Act 1913 to be used for costs
incurred by the NSW Trustee in the exercise of functions under the proposed
Act, and
(g) makes other provision of a savings and transitional nature.
Schedule 2 Amendment of other Acts
Guardianship Act 1987 No 257
Schedule 2.27 [8] substitutes section 77 of the Guardianship Act 1987 to provide that
the Public Guardian is to be a person appointed under Chapter 1A of the Public
Sector Employment and Management Act 2002. Currently, the Public Guardian is the
holder of the office of Protective Commissioner (an office that is abolished by the
proposed Act).
Schedule 2.27 [9] enables savings and transitional regulations to be made as a
consequence of the enactment of the proposed Act.
The other amendments made by Schedule 2.27 are amendments consequential on the
enactment of the proposed Act.
Powers of Attorney Act 2003 No 53
Schedule 2.46 [6] substitutes section 50 of the Powers of Attorney Act 2003 to
re-enact provisions relating to the effect on an existing power of attorney of a
principal whose estate has become subject to management. These provisions were
formerly contained in the Protected Estates Act 1983.
The other amendments made by Schedule 2.46 are amendments consequential on the
enactment of the proposed Act.
Trustee Companies Act 1964 No 6
Schedule 2.60 inserts proposed sections 15A-15AD relating to the powers of trustee
companies with respect to small estates. The provisions mirror the powers of the
NSW Trustee with respect to small estates and replace provisions that apply the small
estate provisions of the Public Trustee Act 1913 (repealed by the proposed Act).
Explanatory note page 15
NSW Trustee and Guardian Bill 2009
Explanatory note
Amendment of other Acts
The remainder of Schedule 2 makes amendments consequential on the enactment of
the proposed Act to the other Acts specified in that Schedule.
Explanatory note page 16
First print
New South Wales
NSW Trustee and Guardian Bill 2009
Contents
Page
Chapter 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 Repeal of Acts 3
Chapter 2 Constitution of NSW Trustee
Part 2.1 Constitution and management of NSW Trustee
5 Constitution of NSW Trustee and Guardian 4
6 Status of NSW Trustee 4
7 Chief Executive Officer 4
8 Acting Chief Executive Officer 4
9 Delegation 5
b2009-034-07.d14
NSW Trustee and Guardian Bill 2009
Contents
Page
Part 2.2 General functions
10 Functions generally 5
11 General trustee and other functions 5
12 Appointment as trustee 6
13 Refusal of appointment as trustee or manager 6
14 Court may waive consent requirement for appointment 6
15 Functions exercised jointly 7
16 Powers of NSW Trustee relating to property and other
matters 7
17 Power to use funds for benefit of minors and other
incapable persons 9
18 Power to pay small amounts of money due to deceased
persons 9
19 No bond by NSW Trustee 10
20 Appointment of agents and other persons 10
21 NSW Trustee may sue itself in another capacity 10
Chapter 3 Deceased estates
Part 3.1 Appointment of NSW Trustee as executor or
administrator or collector under order to collect
22 Grant of probate or administration to NSW Trustee 11
23 Intestacy where no letters of administration 11
24 Transfer of administration of estate to NSW Trustee 11
25 Administration of estates in cases of supposed deaths 12
Part 3.2 Small estates
Division 1 Elections to administer small estates
26 Election to administer where no previous executor or
administrator 12
27 Election to administer where previous executor or
administrator 13
28 Estate not small estate 14
29 Discovery of later will 14
30 Notices and elections 14
Division 2 Small estates for which probate or
administration not required
31 No probate or administration required 15
Part 3.3 General
32 NSW Trustee not required to file accounts 15
33 Entitlement to costs 16
Contents page 2
NSW Trustee and Guardian Bill 2009
Contents
Page
34 Proceeds of sale of goods of third person 16
35 Reciprocal arrangements for intestacy 16
36 Appointment of other persons to conduct business of estate 17
37 Disclosure of property to NSW Trustee 17
Chapter 4 Management functions relating to
persons incapable of managing
their affairs
Part 4.1 Preliminary
38 Interpretation 19
39 General principles applicable to Chapter 19
40 Orders for management may apply to part of estate 20
Part 4.2 Orders by Supreme Court that estates of persons
subject to management
41 Orders by Supreme Court for management of affairs 20
42 Orders relating to persons outside New South Wales 21
Part 4.3 Orders for management of estates of mental
health patients
Division 1 Orders by MHRT
43 Notice to be given at mental health inquiry of possible
estate management 21
44 Consideration of capability to manage affairs at mental
health inquiries 22
45 Consideration of capability of forensic patients to manage
affairs 22
46 Other orders by MHRT 22
47 Interim orders 22
48 MHRT may review interim orders 23
49 Appeals to Supreme Court against management orders 23
50 Appeals to ADT against estate management orders made
by MHRT 24
51 Notice of reasons for orders and appeal rights 24
52 Estates committed to management of the NSW Trustee 24
Division 2 Applications by patients who are not
protected persons
53 NSW Trustee may undertake management of estates of
certain patients 24
Contents page 3
NSW Trustee and Guardian Bill 2009
Contents
Page
Part 4.4 Orders for management of estates of missing
persons
54 Declaration and order where person missing 25
Part 4.5 Management of estates
Division 1 Management of estates by NSW Trustee
55 Application of Division 26
56 General management functions 26
57 NSW Trustee has all functions of managed person 26
58 Execution of documents for managed persons 26
59 Application of money of managed estates 27
60 Arrangements during absence of patient from mental
health facility 27
61 Supreme Court may give directions to NSW Trustee 28
62 Review by ADT of decisions by NSW Trustee under this
Division 28
Division 2 Management of estates by other persons
63 Application of Division 28
64 Orders by Supreme Court and NSW Trustee as to
management of estates 29
65 Orders by Supreme Court and NSW Trustee as to property 29
66 NSW Trustee may authorise and direct functions of other
managers 30
67 Managers may execute documents 31
68 Security may be required in respect of estate management 31
69 Managers may lodge estate funds with NSW Trustee 31
70 Review by ADT of decisions by NSW Trustee in relation to
managers 32
Division 3 Management of estates generally
71 Managed person cannot deal with estate 32
72 Consultation by NSW Trustee 33
73 Temporary provision for maintenance 33
74 Financial plans 34
75 Personal items to be preserved 34
76 Gifts 34
77 Improvements of estate property may be charged on estate 34
78 Enforcement of trustee powers 35
79 Supreme Court may dissolve partnership of managed
person 35
80 Manager may obtain copy of will 35
81 Reciprocal arrangements for management of estates 36
82 Protection of interests of managed person on partition 37
Contents page 4
NSW Trustee and Guardian Bill 2009
Contents
Page
83 Protection of interests in property of beneficiaries and
other persons 37
84 Powers of attorney 37
Part 4.6 Suspension or termination of management
Division 1 Revocation of management orders
85 Termination by revocation of orders 38
86 Revocation of orders by Supreme Court 38
87 Orders where person no longer missing 38
88 Revocation of order by MHRT 39
Division 2 Termination by NSW Trustee
89 NSW Trustee may terminate management of protected
persons or patients 39
90 Continuation of management after discharge etc 39
91 NSW Trustee may terminate management where person
no longer missing 40
92 NSW Trustee may terminate management of patients who
are not protected persons 40
Division 3 Termination on death
93 Termination on death of person 40
94 Estate to be handed over to legal representative of
deceased person 41
95 Amounts may be paid to beneficiaries or other persons 41
96 NSW Trustee may complete transactions 41
Division 4 General matters relating to termination of
management of estates
97 NSW Trustee may continue to act after termination event
occurs 42
98 Estate to be handed over on termination of management 42
99 Protected person or legal representative bound by acts of
NSW Trustee 42
100 Unclaimed personal effects and money 43
Chapter 5 Investments and funds
Part 5.1 Investments
101 Investment of trust and protective funds 44
102 Additional investment powers of managers relating to
protective funds 44
Contents page 5
NSW Trustee and Guardian Bill 2009
Contents
Page
Part 5.2 Common funds and Reserve Fund
103 Separate accounts to be kept 45
104 Common funds 45
105 Amounts that may be included in common funds 45
106 Application of income of common funds 46
107 Policies about common funds 46
108 Operation of common fund 47
109 Reserve Fund 47
110 Advances 48
Chapter 6 General
Part 6.1 Fees and charges
111 Fees 50
112 Payment of costs and fees from trust property 50
113 Payment of costs relating to management of estates by
NSW Trustee 50
114 Costs may be recovered on summary application to Court 50
115 Supreme Court or NSW Trustee may order certain costs
to be paid out of managed estate 50
Part 6.2 Miscellaneous
116 NSW Trustee may require information and documents to
be provided 51
117 Supreme Court may set aside dealing by patient 51
118 Orders and directions of NSW Trustee must be complied
with 51
119 Service of orders on NSW Trustee 52
120 Appropriation of Consolidated Fund 52
121 Personal liability 52
122 Evidentiary provisions 53
123 Directions by NSW Trustee as to visitors 54
124 Service of documents on NSW Trustee 54
125 Nature of proceedings for offences 54
126 Submission of budgets 54
127 Savings, transitional and other provisions 54
128 Regulations 55
Schedule 1 Savings, transitional and other provisions 56
Schedule 2 Amendment of other Acts 64
Contents page 6
New South Wales
NSW Trustee and Guardian Bill 2009
No , 2009
A Bill for
An Act to constitute the NSW Trustee and Guardian; to confer on it functions as a
trustee, executor or administrator and functions relating to the financial and other
management of estates; to repeal the Public Trustee Act 1913 and the Protected
Estates Act 1983; and for other purposes.
Clause 1 NSW Trustee and Guardian Bill 2009
Chapter 1 Preliminary
The Legislature of New South Wales enacts: 1
Chapter 1 Preliminary 2
1 Name of Act 3
This Act is the NSW Trustee and Guardian Act 2009. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
3 Definitions 7
(1) In this Act: 8
ADT means the Administrative Decisions Tribunal established by the 9
Administrative Decisions Tribunal Act 1997. 10
adult means an individual who is aged 18 years or over. 11
Chief Executive Officer means the Chief Executive Officer of the NSW 12
Trustee. 13
common fund--see section 104. 14
costs includes fees, charges, commission, disbursements, expenses and 15
remuneration. 16
Director-General means the Director-General of the Attorney 17
General's Department. 18
exercise a function includes perform a duty. 19
function includes a power, authority or duty. 20
Guardianship Tribunal means the Guardianship Tribunal constituted 21
under the Guardianship Act 1987. 22
legal representative has the same meaning as it has in the Succession 23
Act 2006. 24
managed missing person--see section 38. 25
managed person--see section 38. 26
management of a trust matter includes administration of an estate. 27
manager--see section 38. 28
MHRT means the Mental Health Review Tribunal constituted under the 29
Mental Health Act 2007. 30
mortgage includes a charge. 31
NSW Trustee and Guardian or NSW Trustee means the NSW Trustee 32
and Guardian constituted by this Act. 33
operational funds means funds of or under the control of the NSW 34
Trustee that are not trust funds or protective funds. 35
Page 2
NSW Trustee and Guardian Bill 2009 Clause 4
Preliminary Chapter 1
patient--see section 38. 1
protected person--see section 38. 2
protective capacity means a capacity exercised by the NSW Trustee 3
under this Act in relation to managed persons or the management of 4
their estates. 5
protective funds means funds of the NSW Trustee that the NSW 6
Trustee holds in any protective capacity. 7
Reserve Fund means the Fund established under section 109. 8
spouse means: 9
(a) a husband or wife, or 10
(b) the other party to a de facto relationship within the meaning of the 11
Property (Relationships) Act 1984, in which the parties have 12
cohabited for a period of not less than 2 years, 13
but where more than one person would so qualify as a spouse, means 14
only the last person to so qualify. 15
trust capacity means any of the capacities specified in section 11 (1). 16
trust funds means funds of the NSW Trustee that the NSW Trustee 17
holds in any trust capacity. 18
trust instrument means the will, settlement or other instrument (if any) 19
establishing or regulating the trust or other arrangement giving rise to a 20
trust capacity or to an appointment to a trust capacity. 21
trust matter means any trust, estate, fund, asset, agency or affairs. 22
(2) Words and expressions used in this Act have the same meaning as they 23
have in the Probate and Administration Act 1898. 24
(3) Notes included in this Act do not form part of this Act. 25
Note. For the purposes of comparison, a number of provisions of this Act 26
contain bracketed notes in headings, drawing attention ("cf") to equivalent or 27
comparable (though not necessarily identical) provisions of other laws. 28
Abbreviations in the notes include PT Act (Public Trustee Act 1913) and PE Act 29
(Protected Estates Act 1983). 30
4 Repeal of Acts 31
The Public Trustee Act 1913 and the Protected Estates Act 1983 are 32
repealed. 33
Page 3
Clause 5 NSW Trustee and Guardian Bill 2009
Chapter 2 Constitution of NSW Trustee
Part 2.1 Constitution and management of NSW Trustee
Chapter 2 Constitution of NSW Trustee 1
Part 2.1 Constitution and management of NSW 2
Trustee 3
5 Constitution of NSW Trustee and Guardian 4
There is constituted by this Act a corporation with the corporate name 5
of the NSW Trustee and Guardian. 6
Note. In this Act, the NSW Trustee and Guardian is referred to as the NSW 7
Trustee (see section 3 (1)). 8
6 Status of NSW Trustee 9
The NSW Trustee is a NSW Government agency. 10
7 Chief Executive Officer 11
(1) The Governor may appoint a Chief Executive Officer of the NSW 12
Trustee. 13
(2) The Chief Executive Officer may be appointed for a term not exceeding 14
5 years but is eligible for re-appointment. 15
(3) The employment of the Chief Executive Officer is subject to Part 3.1 of 16
the Public Sector Employment and Management Act 2002, but is not 17
subject to Chapter 2 of that Act. 18
(4) The Governor may remove the Chief Executive Officer from office only 19
for misbehaviour, incapacity or incompetence, despite anything to the 20
contrary in section 77 of the Public Sector Employment and 21
Management Act 2002. 22
(5) The Chief Executive Officer is responsible for the day-to-day 23
management of the affairs of the NSW Trustee. 24
(6) Any act, matter or thing done in the name of, or on behalf of, the NSW 25
Trustee by the Chief Executive Officer is taken to have been done by 26
the NSW Trustee. 27
8 Acting Chief Executive Officer 28
(1) The Minister may, from time to time, appoint a person to act in the 29
office of the Chief Executive Officer during the illness or absence of the 30
Chief Executive Officer (or during a vacancy in the office of Chief 31
Executive Officer) and a person, while so acting, has all the functions 32
of the Chief Executive Officer. 33
(2) The Minister may, at any time, remove a person from the office of 34
acting Chief Executive Officer. 35
Page 4
NSW Trustee and Guardian Bill 2009 Clause 9
Constitution of NSW Trustee Chapter 2
General functions Part 2.2
(3) The acting Chief Executive Officer is entitled to be paid such 1
remuneration (including travelling and subsistence allowances) as the 2
Minister may from time to time determine. 3
9 Delegation 4
(1) The NSW Trustee may delegate to an authorised person any of its 5
functions, other than this power of delegation. 6
(2) The Chief Executive Officer may delegate to an authorised person any 7
of the Chief Executive Officer's functions, other than this power of 8
delegation. 9
(3) A delegate may sub-delegate to an authorised person any function 10
delegated by the NSW Trustee or Chief Executive Officer if the 11
delegate is authorised in writing to do so by the NSW Trustee or Chief 12
Executive Officer. 13
(4) In this section, authorised person means: 14
(a) a member of staff of the Division of the Government Service 15
comprising the group of staff who are employed under 16
Chapter 1A of the Public Sector Employment and Management 17
Act 2002 to enable the NSW Trustee to exercise its functions, or 18
(b) a person, or committee of persons, of a class approved by the 19
Minister or prescribed by the regulations. 20
Part 2.2 General functions 21
10 Functions generally 22
(1) The NSW Trustee has such functions as are conferred or imposed on it 23
by or under this or any other Act. 24
(2) The NSW Trustee may do all such supplemental, incidental or 25
consequential acts as may be necessary or expedient for the exercise of 26
its functions. 27
(3) However, the NSW Trustee cannot employ any staff. 28
Note. Staff may be employed under Chapter 1A of the Public Sector 29
Employment and Management Act 2002 in the Government Service to enable 30
the NSW Trustee to exercise its functions. 31
11 General trustee and other functions (cf PT Act, ss 12 and 13) 32
(1) The NSW Trustee may be appointed to and act in any of the following 33
capacities: 34
(a) trustee, 35
(b) executor or administrator, 36
Page 5
Clause 12 NSW Trustee and Guardian Bill 2009
Chapter 2 Constitution of NSW Trustee
Part 2.2 General functions
(c) collector of estates under an order to collect, 1
(d) agent or attorney, 2
(e) guardian or receiver of the estate of a minor, 3
(f) receiver of any other property. 4
(2) The NSW Trustee may be appointed to and act in the capacity of a 5
financial manager of the estate of a managed person. 6
(3) The NSW Trustee may prepare wills and carry out professional services 7
in connection with wills, probate and administration. 8
(4) The NSW Trustee, if appointed to act in a trust or protective capacity: 9
(a) has the same liabilities, and 10
(b) is entitled to the same rights and immunities, and 11
(c) is subject to the same control and orders of any court, 12
as a private person acting in the same capacity. 13
12 Appointment as trustee 14
(1) The NSW Trustee may be appointed to be a trustee under a trust 15
instrument as an original, new or additional trustee. 16
(2) The NSW Trustee may be appointed as sole trustee, even though the 17
trustees originally appointed were 2 or more, and despite the provisions 18
of the trust instrument as to the number of trustees. 19
(3) However, the NSW Trustee must not be appointed as trustee if the trust 20
instrument contains a direction to the contrary or prohibits the 21
appointment. 22
13 Refusal of appointment as trustee or manager (cf PT Act, s 12 (3) and (4)) 23
(1) The NSW Trustee may refuse to act in a trust capacity or may accept 24
subject to conditions. However, the NSW Trustee must not refuse 25
merely on the ground of the small value of the trust property or estate 26
concerned. 27
(2) The NSW Trustee must not accept: 28
(a) any trust under a deed of arrangement, or 29
(b) any trust exclusively for religious purposes, or 30
(c) any trust or trust capacity, if the instrument that creates the trust 31
or duty concerned prohibits the appointment of the NSW Trustee. 32
14 Court may waive consent requirement for appointment (cf PT Act, s 17) 33
(1) This section applies if a trust instrument requires the consent of a person 34
to the appointment of a trustee. 35
Page 6
NSW Trustee and Guardian Bill 2009 Clause 15
Constitution of NSW Trustee Chapter 2
General functions Part 2.2
(2) The Supreme Court may direct that consent is not required to the 1
appointment of the NSW Trustee if: 2
(a) the person refuses or fails to consent, or 3
(b) the person is, for any reason, not capable of consenting. 4
15 Functions exercised jointly (cf PT Act, s 12 (1A)) 5
(1) This section applies if the NSW Trustee jointly accepts a trust or is 6
appointed to act jointly in a trust capacity with another person. 7
(2) The NSW Trustee and the other person jointly have and may exercise 8
the same functions as the NSW Trustee would have and may exercise if 9
the NSW Trustee were acting alone. 10
(3) Any money or other property under the control of the NSW Trustee and 11
the other person must be dealt with in the same manner as money or 12
other property under the sole control of the NSW Trustee. 13
(4) If money or other property is payable, transferable or deliverable to the 14
NSW Trustee and the other person jointly: 15
(a) a written receipt given by the NSW Trustee alone is a sufficient 16
discharge for that payment, transfer or delivery, and 17
(b) any person required to make the payment, transfer or delivery is 18
not required to make it to the other person and is not liable for any 19
subsequent loss or misapplication of the money or property. 20
16 Powers of NSW Trustee relating to property and other matters (cf PT Act, 21
s 35, PE Act, s 24) 22
(1) The NSW Trustee may exercise the following functions when acting in 23
a trust capacity or protective capacity: 24
(a) receive money, rent, income and profit of real and personal 25
property, 26
(b) grant leases of property for a term not exceeding 10 years and 27
give to a lessee an option of renewal if the aggregate duration of 28
the lease and any such renewal does not exceed 10 years, 29
(c) enter into a share-farming agreement for a period not exceeding 30
3 years, 31
(d) surrender a lease and accept a new lease, 32
(e) accept a surrender of a lease and grant a new lease, 33
(f) execute a power of leasing vested in a person having a limited 34
estate only in the property over which the power extends, 35
(g) buy, sell, realise and mortgage (with or without a power of sale) 36
real and personal property, 37
Note. Mortgage includes charge (see section 3 (1)). 38
Page 7
Clause 16 NSW Trustee and Guardian Bill 2009
Chapter 2 Constitution of NSW Trustee
Part 2.2 General functions
(h) pay interest secured by a mortgage out of capital, if income is 1
insufficient, 2
(i) postpone the sale, calling in and conversion of any property that 3
the NSW Trustee has a duty to sell, other than property that is of 4
a wasting, speculative or reversionary nature, 5
(j) settle, adjust and compromise a demand made by or against the 6
estate, 7
(k) exchange or join in a partition of property and give or receive 8
money for equality of exchange or partition, 9
(l) carry on a business, so far as may appear desirable for the purpose 10
of more advantageously disposing of, or winding up, the business 11
or preserving the business of a managed person until the managed 12
person is able to carry it on, 13
(m) agree to an alteration of the conditions of a partnership into which 14
a managed person has entered, for the purpose of more 15
advantageously disposing of an interest in the partnership or 16
terminating liability, 17
(n) carry out a contract entered into before the appointment of the 18
NSW Trustee or enter into an agreement terminating the liability, 19
(o) surrender, assign or otherwise dispose of, with or without 20
consideration, onerous property, 21
(p) exercise a power, or give a consent required for the exercise of a 22
power, where the power is vested in a managed person for the 23
benefit of the person or the power of consent is in the nature of a 24
beneficial interest in the person, 25
(q) sequestrate the estate under the bankruptcy laws, 26
(r) take proceedings to cause a company to be placed in liquidation 27
and vote or act by proxy at meetings of creditors or shareholders, 28
whether the company is in liquidation or not, 29
(s) bring and defend actions, suits and other proceedings, 30
(t) without limiting paragraph (s), take criminal proceedings 31
touching or concerning property, 32
(u) pay rates, taxes, assessments, insurance premiums, debts, 33
obligations, costs and expenses and other outgoings, 34
(v) without limiting paragraph (u), pay the reasonable costs of the 35
erection of a memorial or a tombstone over the grave of a 36
deceased person or, if a deceased person is cremated, the 37
reasonable costs of a memorial or any arrangements for the 38
preservation of the ashes of the deceased person, 39
(w) repair and insure against fire or accident any property, 40
Page 8
NSW Trustee and Guardian Bill 2009 Clause 17
Constitution of NSW Trustee Chapter 2
General functions Part 2.2
(x) bring land under the Real Property Act 1900, 1
(y) do or omit all things, and execute all documents, necessary to 2
carry into effect the functions of the NSW Trustee. 3
(2) The functions conferred by this section are in addition to, and do not 4
restrict, any other functions of the NSW Trustee. 5
17 Power to use funds for benefit of minors and other incapable persons 6
(cf PT Act, s 34) 7
(1) This section applies if: 8
(a) a minor is entitled to money held by the NSW Trustee or is 9
entitled to any such money contingently on attaining an age 10
specified in an instrument creating the entitlement, or 11
(b) a person (an incapable person) is entitled to money held by the 12
NSW Trustee and is, in its opinion, not capable of giving a good 13
discharge. 14
(2) The NSW Trustee may pay, or pay to any person it thinks fit, amounts 15
of the money to be used for the past or future maintenance, education, 16
advancement or benefit of the minor or incapable person (including the 17
reimbursement of expenses already paid in that connection). 18
(3) The Supreme Court may, on application by the NSW Trustee, give or 19
vary or revoke directions as to the payment or application of money held 20
by the NSW Trustee to or in respect of a minor or incapable person or 21
determine any related manner. 22
(4) Any such direction or determination exonerates the NSW Trustee from 23
any claim or demand from any person at all. 24
(5) The NSW Trustee is not required to see to the application of money paid 25
under this section. 26
18 Power to pay small amounts of money due to deceased persons (cf PT 27
Act, s 34C) 28
(1) The NSW Trustee may pay an amount payable by the NSW Trustee to 29
a person who has died to another person without requiring 30
administration to be taken out in the estate of the deceased person if: 31
(a) the amount does not exceed the amount prescribed by the 32
regulations for the purposes of this section, and 33
(b) the NSW Trustee considers that the other person is entitled to the 34
amount. 35
(2) A person to whom an amount is paid under this section must apply the 36
money as required by law in the administration of the estate. 37
Page 9
Clause 19 NSW Trustee and Guardian Bill 2009
Chapter 2 Constitution of NSW Trustee
Part 2.2 General functions
(3) A payment made by the NSW Trustee under this section is valid against 1
all persons and the NSW Trustee is discharged from all liability in 2
respect of all money so paid by the NSW Trustee. 3
(4) This section does not affect any right of a person to claim or recover 4
money paid under this section from a person other than the NSW 5
Trustee. 6
19 No bond by NSW Trustee (cf PT Act, s 49) 7
No bond or other security is required from the NSW Trustee before 8
being appointed, by or under this or any other Act, in any trust capacity. 9
20 Appointment of agents and other persons 10
(1) The NSW Trustee may appoint agents and act as an agent for other 11
persons. 12
(2) The NSW Trustee may appoint a registrar or deputy registrar appointed 13
under the Local Courts Act 1982 as an agent of the NSW Trustee. 14
(3) Any such registrar or deputy registrar has, and may exercise, the agency 15
functions which he or she is appointed to exercise. 16
(4) Without limiting subsection (1) or (2), the NSW Trustee may employ 17
another person to transact any business or do any act that is required to 18
be done by it, or to advise or assist it, when exercising its trust or 19
protective capacities. 20
(5) The NSW Trustee is not responsible for any default of any agent so 21
employed. 22
21 NSW Trustee may sue itself in another capacity 23
(1) The NSW Trustee, acting in one capacity, may maintain proceedings 24
against itself acting in another capacity. 25
(2) However, in any such case the NSW Trustee may apply to the Supreme 26
Court for direction as to the manner in which the opposing interests are 27
to be represented and must comply with the Court's directions. 28
Page 10
NSW Trustee and Guardian Bill 2009 Clause 22
Deceased estates Chapter 3
Appointment of NSW Trustee as executor or administrator or collector under Part 3.1
order to collect
Chapter 3 Deceased estates 1
Part 3.1 Appointment of NSW Trustee as executor or 2
administrator or collector under order to 3
collect 4
22 Grant of probate or administration to NSW Trustee (cf PT Act, s 18 (1)) 5
(1) The Supreme Court may grant: 6
(a) probate of a will, or 7
(b) administration of any estate (whether for general, limited or 8
special purposes), 9
to the NSW Trustee. 10
(2) This section does not limit the generality of the powers or other 11
functions of the Supreme Court or the NSW Trustee. 12
Note. Under section 61 of the Probate and Administration Act 1898, a deceased 13
person's estate vests in the NSW Trustee until probate, administration or an 14
order to collect is granted. 15
23 Intestacy where no letters of administration (cf PT Act, s 18 (1A)) 16
(1) The NSW Trustee is, on application, entitled as of right to a grant of 17
administration of the estate of a person who died intestate leaving 18
property in New South Wales if: 19
(a) letters of administration of the deceased person's estate have not 20
been granted, or 21
(b) letters of administration of the estate granted to a person other 22
than the NSW Trustee are revoked, or 23
(c) a person granted letters of administration of the estate dies 24
without completing administration of the estate. 25
(2) The NSW Trustee is not required to provide, and the Supreme Court 26
may not require the provision of, any citation or consent before 27
administration of the estate of the deceased person is granted. 28
(3) However, if the NSW Trustee and any other person severally apply for 29
the administration of the deceased person's estate, the Supreme Court 30
may grant administration of the estate to the NSW Trustee or other 31
person, as the Court thinks fit. 32
24 Transfer of administration of estate to NSW Trustee (cf PT Act, s 18 (2)) 33
(1) The Supreme Court may make an order transferring an estate to the 34
NSW Trustee for administration, on application by an executor who has 35
been granted probate or an administrator who has been granted 36
Page 11
Clause 25 NSW Trustee and Guardian Bill 2009
Chapter 3 Deceased estates
Part 3.2 Small estates
administration. This section applies despite the existence of any other 1
executor or administrator. 2
(2) The Supreme Court may, in any such order, determine the extent to 3
which the existing executor or executors or the existing administrator or 4
administrators remain liable for any matters arising after the making of 5
the order. 6
(3) On an order transferring an estate being made, section 75A of the 7
Probate and Administration Act 1898 applies as if the NSW Trustee had 8
been appointed as an administrator under that section. 9
25 Administration of estates in cases of supposed deaths (cf PT Act, s 23) 10
(1) The Supreme Court may order the NSW Trustee to administer the estate 11
of a person if it appears to the Court that there are reasonable grounds 12
to suppose that the person has died intestate (whether in or outside New 13
South Wales) leaving property in New South Wales. 14
(2) If such an order is made, the NSW Trustee may: 15
(a) collect, manage and administer the personal estate of the person, 16
and 17
(b) enter and manage the real estate of the person, including 18
receiving the rents and profits of any such estate, and 19
(c) pay and discharge the debts and liabilities of the person. 20
(3) The NSW Trustee may exercise any such function as if the person were 21
certainly dead and the NSW Trustee had obtained a grant of probate or 22
administration. 23
(4) The NSW Trustee must not distribute any assets of the person's estate 24
except in accordance with an order of the Supreme Court specially 25
authorising the distribution. 26
(5) Nothing in this section affects the application of sections 40A-40C of 27
the Probate and Administration Act 1898. 28
Part 3.2 Small estates 29
Division 1 Elections to administer small estates 30
26 Election to administer where no previous executor or administrator (cf 31
PT Act, s 18A (1)-(3)) 32
(1) The NSW Trustee may file an election to administer the estate of a 33
deceased person who died testate or intestate in the registry of the 34
Supreme Court, instead of applying for probate or administration, if: 35
Page 12
NSW Trustee and Guardian Bill 2009 Clause 27
Deceased estates Chapter 3
Small estates Part 3.2
(a) the gross value of the estate in New South Wales, as estimated by 1
the NSW Trustee, is less than the amount prescribed by the 2
regulations for the purposes of this section, and 3
(b) no person has obtained probate of the estate or taken out 4
administration, and 5
(c) the NSW Trustee is entitled to obtain probate or letters of 6
administration of the estate, and 7
(d) the NSW Trustee has made due inquiries as to the will, if the 8
deceased person died testate. 9
(2) An election must be sealed by the NSW Trustee and must set out: 10
(a) the name, residence and occupation (as far as it is known to the 11
NSW Trustee) of the deceased person, and 12
(b) particulars of property forming the deceased person's estate, and 13
(c) the date of the deceased person's death as then known to the 14
NSW Trustee, and 15
(d) if the deceased person died testate, state that, after due inquiries, 16
the NSW Trustee believes that the document annexed to the 17
election is the testator's last will and that the will has been validly 18
executed according to the law governing the execution of wills. 19
(3) On an election being filed, the NSW Trustee is taken to have been 20
appointed by the Supreme Court as the executor of the estate or the 21
administrator of the estate. 22
27 Election to administer where previous executor or administrator (cf PT 23
Act, s 18A (3A)) 24
(1) The NSW Trustee may file an election to administer the unadministered 25
estate of a deceased person who died testate or intestate in the registry 26
of the Supreme Court, instead of taking out administration de bonis non, 27
if: 28
(a) the executor or administrator of the estate has died and no other 29
person has taken out administration de bonis non in respect of the 30
estate, and 31
(b) part of the estate is unadministered, and 32
(c) the gross value of the unadministered part of the estate in New 33
South Wales is less than the amount prescribed by the regulations 34
for the purposes of this section, and 35
(d) the NSW Trustee is entitled to take out administration de bonis 36
non. 37
(2) An election must be sealed by the NSW Trustee and must set out: 38
(a) the fact of the original grant, and 39
Page 13
Clause 28 NSW Trustee and Guardian Bill 2009
Chapter 3 Deceased estates
Part 3.2 Small estates
(b) the fact of the death of the executor or administrator, and 1
(c) particulars of the property left unadministered. 2
(3) On an election being filed, the NSW Trustee is taken to have been 3
appointed by the Supreme Court as the administrator de bonis non of the 4
estate. 5
28 Estate not small estate (cf PT Act, s 18A (5)) 6
(1) If, after an election takes effect under this Division, the NSW Trustee 7
becomes aware that the gross value of the estate or the unadministered 8
estate exceeds the amount prescribed for the purposes of making an 9
election, the NSW Trustee must file a notice to that effect in the registry 10
of the Supreme Court. 11
(2) The NSW Trustee is not entitled to continue to administer the estate 12
under this Division but must obtain probate or administration in the 13
ordinary manner. 14
29 Discovery of later will (cf PT Act, s 18A (5A)) 15
(1) If, after an election takes effect under this Division, a later will, or a will, 16
is found, the NSW Trustee must file a notice to that effect in the registry 17
of the Supreme Court. 18
(2) On filing the notice, the NSW Trustee ceases to be the executor or 19
administrator of the estate and may, if it is otherwise entitled to do so, 20
obtain probate or administration in the ordinary manner or make a new 21
election under this Division. 22
(3) If the NSW Trustee does not obtain probate or letters of administration 23
or make a new election under this Division, the Probate and 24
Administration Act 1898 applies as if a grant of probate or 25
administration to the NSW Trustee had been revoked. 26
Note. See section 40D of the Probate and Administration Act 1898. 27
30 Notices and elections 28
(1) The NSW Trustee must publish, in accordance with the regulations, 29
notice of an election made by, or a notice filed by, the NSW Trustee 30
under this Division. 31
(2) A notice under this Division is to be in the form (if any) prescribed by 32
the regulations and to contain the particulars prescribed by the 33
regulations. 34
(3) A notice that complies with this section is conclusive evidence that the 35
NSW Trustee is entitled to administer an estate under this Division. 36
Page 14
NSW Trustee and Guardian Bill 2009 Clause 31
Deceased estates Chapter 3
General Part 3.3
Division 2 Small estates for which probate or administration 1
not required 2
31 No probate or administration required (cf PT Act, s 34A) 3
(1) This section applies to the estate of a deceased person who died testate 4
or intestate if: 5
(a) the net value of the estate in New South Wales is less than the 6
amount prescribed by the regulations for the purposes of this 7
section, and 8
(b) the NSW Trustee has no knowledge of any application having 9
been lodged for probate of the will or for the administration of the 10
estate, and 11
(c) the NSW Trustee has given notice in accordance with the 12
regulations of its intention to act under this section. 13
(2) The NSW Trustee may deal with the estate as if probate of the will of 14
the deceased person or administration of the estate had been granted to 15
the NSW Trustee. 16
(3) The NSW Trustee is entitled to the same commission as it would be 17
entitled to if the NSW Trustee had been granted probate or 18
administration of the estate. The commission is a first charge on the 19
estate. 20
(4) The NSW Trustee must deposit any will of a deceased person with an 21
estate to which this section applies in accordance with section 51 of the 22
Succession Act 2006. 23
Part 3.3 General 24
32 NSW Trustee not required to file accounts (cf PT Act, s 35A) 25
(1) The NSW Trustee, when acting alone in relation to any estate, is not 26
required to file or pass accounts relating to the estate unless the Supreme 27
Court, on the application by or on behalf of a person interested in the 28
estate, so orders. 29
(2) The NSW Trustee, when appointed and acting jointly with any other 30
person in relation to any estate, is not required to file or pass accounts 31
relating to the estate unless: 32
(a) the other person wishes to claim commission for his or her pains 33
and trouble, or 34
(b) the Supreme Court, on application by or on behalf of a person 35
interested in the estate, so orders. 36
Page 15
Clause 33 NSW Trustee and Guardian Bill 2009
Chapter 3 Deceased estates
Part 3.3 General
33 Entitlement to costs (cf PT Act, ss 43A and 43B) 1
(1) The NSW Trustee is entitled to the NSW Trustee's costs out of an estate 2
for any application by the NSW Trustee for probate of any will or for 3
administration with a will annexed. 4
(2) The NSW Trustee is entitled to the NSW Trustee's costs out of an estate 5
if the NSW Trustee applies for administration at the request of one or 6
more beneficiaries of a deceased estate who cannot agree as to the 7
person to be appointed administrator, whether or not the NSW Trustee 8
is appointed administrator. 9
(3) The NSW Trustee is not liable for the costs of any other person in 10
respect of an application or estate referred to in subsection (1) or (2). 11
34 Proceeds of sale of goods of third person (cf PT Act, s 47) 12
(1) If the NSW Trustee disposes of goods of a person other than a person 13
for whom the NSW Trustee is acting in a trust capacity, the NSW 14
Trustee must pay the proceeds of any such sale to the person on proof 15
of ownership. 16
(2) The NSW Trustee is not liable to pay the proceeds of the sale to any 17
such person if the proceeds have, in good faith and without notice of the 18
person's interest in the goods, been applied to the debts of the deceased 19
person or in the course of the distribution or administration of the estate 20
of the deceased person. 21
35 Reciprocal arrangements for intestacy (cf PT Act, ss 55 and 56) 22
(1) In this section: 23
Public Trustee of a reciprocating State means a person or body that 24
exercises functions equivalent to the trust capacities of the NSW 25
Trustee in the reciprocating State. 26
reciprocating State means a State or Territory of Australia or a country 27
prescribed by the regulations as a reciprocating State for the purposes of 28
this section. 29
(2) The NSW Trustee may pay to the Public Trustee of a reciprocating State 30
the proceeds of an estate of a person for which the NSW Trustee is 31
acting as collector of the estate, after payment of creditors and any costs 32
under this Act, if: 33
(a) the person was domiciled in the reciprocating State when the 34
person died, and 35
(b) the Public Trustee of the reciprocating State is the administrator 36
of the estate or is the collector of the estate in the reciprocating 37
State. 38
Page 16
NSW Trustee and Guardian Bill 2009 Clause 36
Deceased estates Chapter 3
General Part 3.3
(3) The NSW Trustee: 1
(a) is not required to see to the application of, and is not liable in 2
respect of, any money paid to the Public Trustee of a 3
reciprocating State under this section, and 4
(b) is not liable for any act or omission of the Public Trustee of a 5
reciprocating State in the exercise of functions referred to in this 6
section. 7
(4) The NSW Trustee may receive from the Public Trustee of a 8
reciprocating State the proceeds of the estate of a person in the 9
reciprocating State that is being administered by that Public Trustee or 10
for which that Public Trustee is acting as the collector of the estate if: 11
(a) the person was domiciled in this State when the person died, and 12
(b) the NSW Trustee is the administrator of the person's estate. 13
(5) The proceeds of an estate received by the NSW Trustee under this 14
section form part of the estate of the deceased person and are to be dealt 15
with in accordance with the law of this State. 16
36 Appointment of other persons to conduct business of estate (cf PT Act, 17
s 57) 18
(1) This section applies to an estate of a deceased person if the NSW 19
Trustee is acting in a trust capacity and the testator or settler has directed 20
in a trust instrument that a specified person is to conduct the legal or 21
other business of the estate. 22
(2) The specified person is entitled to conduct the legal or other business of 23
the estate in accordance with the direction. 24
(3) The NSW Trustee is not liable for any act or omission of the specified 25
person in conducting the legal or other business of the estate. 26
(4) The Supreme Court may, on application by the NSW Trustee, or any 27
other person interested in the estate, on cause being shown, direct that 28
the specified person is not to conduct the legal or other business of the 29
estate and may appoint any other person to conduct the business 30
concerned. 31
37 Disclosure of property to NSW Trustee (cf PT Act, s 54) 32
An association, corporation or other person must, on or as soon as is 33
reasonably practicable after becoming aware of the vesting of the estate 34
of a deceased person in the NSW Trustee, notify the NSW Trustee of 35
the following matters: 36
(a) any property of the deceased person that is in the possession of 37
the association, corporation or other person, 38
Page 17
Clause 37 NSW Trustee and Guardian Bill 2009
Chapter 3 Deceased estates
Part 3.3 General
(b) any amount owed to the deceased person by the association, 1
corporation or other person, 2
(c) any share of the deceased person in the assets of a partnership, 3
(d) in the case of a corporation, any shares held by the deceased 4
person in the corporation, 5
(e) in the case of an association, any entitlement of the deceased 6
person to the assets of the association. 7
Maximum penalty: 10 penalty units. 8
Page 18
NSW Trustee and Guardian Bill 2009 Clause 38
Management functions relating to persons incapable of managing their Chapter 4
affairs Part 4.1
Preliminary
Chapter 4 Management functions relating to 1
persons incapable of managing their 2
affairs 3
Part 4.1 Preliminary 4
38 Interpretation 5
In this Chapter: 6
estate of a person means the property and affairs of a person and, if only 7
part of the estate of a person is under management under this Chapter, 8
means only that part of the property and affairs of the person. 9
involuntary patient has the same meaning as it has in the Mental Health 10
Act 2007. 11
managed missing person means a person in respect of whom an order 12
is in force under Part 4.4 that the person's estate be subject to 13
management under this Act. 14
managed person means a protected person, managed missing person or 15
patient whose estate is subject to management under this Act. 16
manager of an estate means the NSW Trustee, if management of the 17
estate is committed to the NSW Trustee, or any person who is appointed 18
as the manager of the estate of a managed person. 19
mental health facility has the same meaning as it has in the Mental 20
Health Act 2007. 21
mental health inquiry means a mental health inquiry under section 34 22
of the Mental Health Act 2007. 23
patient has the same meaning as it has in the Mental Health Act 2007. 24
person under guardianship has the same meaning as it has in Part 3 of 25
the Guardianship Act 1987. 26
protected person means a person in respect of whom an order is in force 27
under Part 4.2 or 4.3 or the Guardianship Act 1987 that the whole or any 28
part of the person's estate be subject to management under this Act. 29
39 General principles applicable to Chapter 30
It is the duty of everyone exercising functions under this Chapter with 31
respect to protected persons or patients to observe the following 32
principles: 33
(a) the welfare and interests of such persons should be given 34
paramount consideration, 35
(b) the freedom of decision and freedom of action of such persons 36
should be restricted as little as possible, 37
Page 19
Clause 40 NSW Trustee and Guardian Bill 2009
Chapter 4 Management functions relating to persons incapable of managing their
Part 4.2 affairs
Orders by Supreme Court that estates of persons subject to management
(c) such persons should be encouraged, as far as possible, to live a 1
normal life in the community, 2
(d) the views of such persons in relation to the exercise of those 3
functions should be taken into consideration, 4
(e) the importance of preserving the family relationships and the 5
cultural and linguistic environments of such persons should be 6
recognised, 7
(f) such persons should be encouraged, as far as possible, to be 8
self-reliant in matters relating to their personal, domestic and 9
financial affairs, 10
(g) such persons should be protected from neglect, abuse and 11
exploitation. 12
40 Orders for management may apply to part of estate 13
An order may be made under this Chapter for the management of the 14
whole or part of the estate of a person. 15
Note. Orders for the financial management of the estates of persons under 16
guardianship may also be made under Part 3A of the Guardianship Act 1987. 17
Such persons are protected persons for the purposes of this Act. 18
Part 4.2 Orders by Supreme Court that estates of 19
persons subject to management 20
41 Orders by Supreme Court for management of affairs (cf PE Act, s 13) 21
(1) If the Supreme Court is satisfied that a person is incapable of managing 22
his or her affairs, the Court may: 23
(a) declare that the person is incapable of managing his or her affairs 24
and order that the estate of the person be subject to management 25
under this Act, and 26
(b) by order appoint a suitable person as manager of the estate of the 27
person or commit the management of the estate of the person to 28
the NSW Trustee. 29
(2) The Supreme Court may make an order on its own motion or on the 30
application of any person having a sufficient interest in the matter. 31
(3) For the purposes of this section: 32
(a) evidence of a person's capability to manage his or her own affairs 33
may be given to the Supreme Court in any form and in 34
accordance with any procedures that the Court thinks fit, and 35
(b) the Court may personally examine a person whose capability to 36
manage his or her affairs is in question or dispense with any such 37
examination, and 38
Page 20
NSW Trustee and Guardian Bill 2009 Clause 42
Management functions relating to persons incapable of managing their Chapter 4
affairs Part 4.3
Orders for management of estates of mental health patients
(c) the Court may otherwise inform itself as to the person's 1
capability to manage his or her own affairs as it thinks fit. 2
(4) Subsection (3) also applies to an application arising out of the operation 3
of section 37 (2) of the Powers of Attorney Act 2003. 4
42 Orders relating to persons outside New South Wales (cf PE Act, s 14) 5
(1) If a person has been found to be incapable of managing his or her own 6
affairs by a legal inquiry in another State or a Territory, or a country to 7
which this section applies, the Supreme Court may: 8
(a) direct a copy of the inquiry or the finding of the inquiry, duly 9
certified by an officer of the court or other authority to which the 10
finding has been returned, to be filed with the Court, and 11
(b) declare that the person is incapable of managing his or her affairs 12
and order that the estate of the person in this State be subject to 13
management under this Act, and 14
(c) by order appoint a suitable person as manager of the estate of the 15
person in this State or commit the management of the estate of the 16
person in this State to the NSW Trustee. 17
(2) The Governor may, by proclamation published on the NSW legislation 18
website, extend the application of the provisions of this section to 19
another country. 20
Part 4.3 Orders for management of estates of mental 21
health patients 22
Division 1 Orders by MHRT 23
43 Notice to be given at mental health inquiry of possible estate 24
management (cf PE Act, s 15) 25
An authorised medical officer who intends to bring a person before a 26
mental health inquiry must: 27
(a) when giving the information required to be given to the person 28
under section 76 of the Mental Health Act 2007, give to the 29
person the information prescribed by the regulations with respect 30
to the question of the capability of the person to manage his or her 31
affairs, and 32
(b) when giving the notice required to be given under section 76 of 33
that Act, give to each of the persons required to be given that 34
notice the information prescribed by the regulations with respect 35
to the question of the capability of the person subject to the 36
inquiry to manage his or her own affairs. 37
Page 21
Clause 44 NSW Trustee and Guardian Bill 2009
Chapter 4 Management functions relating to persons incapable of managing their
Part 4.3 affairs
Orders for management of estates of mental health patients
44 Consideration of capability to manage affairs at mental health inquiries 1
If the MHRT after conducting a mental health inquiry orders that the 2
person subject to the inquiry be detained in a mental health facility, it 3
must: 4
(a) consider whether the person is capable of managing his or her 5
own affairs, and 6
(b) if satisfied that the person is not capable of managing his or her 7
own affairs, order that the estate of the person be subject to 8
management under this Act. 9
45 Consideration of capability of forensic patients to manage affairs (cf PE 10
Act, s 18) 11
If the MHRT, after reviewing a person's case under Part 5 of the Mental 12
Health (Forensic Provisions) Act 1990, recommends to the Minister 13
that a person be detained in a mental health facility, it must: 14
(a) consider whether the person is capable of managing his or her 15
own affairs, and 16
(b) if satisfied that the person is not capable of managing his or her 17
own affairs, order that the estate of the person be subject to 18
management under this Act. 19
46 Other orders by MHRT (cf PE Act, s 19) 20
(1) The MHRT may, on application, consider a patient's capability to 21
manage his or her affairs and, if satisfied that the patient is not capable 22
of managing his or her affairs, must order that the estate of the person 23
be subject to management under this Act. 24
(2) An application under this section may be made by any person who has, 25
in the opinion of the MHRT, a sufficient interest in the matter. 26
(3) An order may be made under this section even though there has been no 27
change in the capability of the patient's ability to manage his or her own 28
affairs since that capability was last considered under this Part. 29
47 Interim orders (cf PE Act, s 20) 30
(1) The MHRT may, if it appears to the MHRT to be necessary or 31
convenient to do so, make an interim order under this Part for a 32
specified period not exceeding 6 months, pending further consideration 33
of the person's capability to manage his or her affairs. 34
(2) If the further consideration of the capability of the person to whom the 35
interim order relates to manage his or her own affairs is not completed 36
before the expiry of the period specified in the order, the order is taken 37
to be revoked on that expiry. 38
Page 22
NSW Trustee and Guardian Bill 2009 Clause 48
Management functions relating to persons incapable of managing their Chapter 4
affairs Part 4.3
Orders for management of estates of mental health patients
48 MHRT may review interim orders 1
(1) The MHRT may, in an order made under section 47 (an interim order) 2
or a subsequent order, order that the interim order be reviewed within a 3
specified time. 4
(2) The MHRT must begin any required review within the time specified in 5
the relevant order. 6
(3) The MHRT may, at any time on its own motion, review an interim 7
order. 8
(4) If an interim order would cease to have effect before the completion of 9
a review, the order is taken to be extended until the completion of the 10
review. 11
(5) Before carrying out the review, the MHRT must cause a notice 12
specifying the date on which, and the time and place at which, the 13
MHRT will carry out the review to be served on each party to the 14
proceedings. The review is taken to have commenced on the issue of 15
such a notice. 16
(6) A failure to serve notice in accordance with this section does not vitiate 17
the decision of the MHRT on the review. 18
49 Appeals to Supreme Court against management orders (cf PE Act, s 21) 19
(1) An appeal may be made to the Supreme Court by a person who is 20
subject to an order made by the MHRT that the estate of the person be 21
subject to management under this Act. 22
(2) An appeal: 23
(a) is to be by way of a new hearing, and 24
(b) fresh evidence or evidence in addition to, or in substitution for, 25
the evidence in relation to which the order in respect of which the 26
appeal is made may be given on the appeal. 27
(3) If the person to whom the order relates has appealed to the ADT under 28
this Division against the order, the person may not appeal to the 29
Supreme Court under this section against the same order. However, the 30
person may appeal to the Court under this section if the appeal is 31
withdrawn with the approval of the ADT for the purpose of enabling the 32
Court to deal with the matter. 33
(4) On an appeal, the Supreme Court may revoke or confirm the order in 34
respect of which the appeal is made. 35
(5) Neither the MHRT nor any member of the MHRT is liable for any costs 36
relating to an order of the MHRT in respect of which an appeal is made 37
or the appeal. 38
Page 23
Clause 50 NSW Trustee and Guardian Bill 2009
Chapter 4 Management functions relating to persons incapable of managing their
Part 4.3 affairs
Orders for management of estates of mental health patients
50 Appeals to ADT against estate management orders made by MHRT (cf 1
PE Act, s 21A) 2
(1) An appeal may be made to the ADT against an order by the MHRT that 3
the estate of a person be subject to management under this Act. 4
(2) An appeal to the ADT under this section may be made by: 5
(a) the person to whom the order relates, or 6
(b) any other person who was a party to the proceedings in which the 7
order was made. 8
(3) If the person to whom the order relates has appealed to the Supreme 9
Court under this Division against the order, the person may not appeal 10
to the ADT under this section against the same order. However, the 11
person may appeal to the ADT under this section if the appeal is 12
withdrawn with the approval of the Court for the purpose of enabling 13
the ADT to deal with the matter. 14
(4) An appeal under this section is an external appeal within the meaning of 15
the Administrative Decisions Tribunal Act 1997. 16
51 Notice of reasons for orders and appeal rights (cf PE Act, s 21B) 17
(1) If the MHRT makes an order that the estate of a person be subject to 18
management under this Act, the MHRT must, if requested to do so by 19
any party to the proceedings (including the person to whom the order 20
relates), provide the party with formal written reasons for the order as 21
soon as practicable after making the order. 22
(2) In providing those reasons, the MHRT must also advise the party 23
concerned that an appeal may be made to the ADT against the order 24
under this Part. 25
52 Estates committed to management of the NSW Trustee (cf PE Act, s 22) 26
The estate of a person that is ordered, under this Part, to be subject to 27
management under this Act is committed to the management of the 28
NSW Trustee, subject to any special order of the Supreme Court. 29
Division 2 Applications by patients who are not protected 30
persons 31
53 NSW Trustee may undertake management of estates of certain patients 32
(cf PE Act, s 63) 33
(1) The NSW Trustee may, on application in writing, undertake the 34
management of the whole or part of the estate of a patient who is not a 35
protected person. 36
Page 24
NSW Trustee and Guardian Bill 2009 Clause 54
Management functions relating to persons incapable of managing their Chapter 4
affairs Part 4.4
Orders for management of estates of missing persons
(2) An application may be made by a patient if the patient is 18 years or 1
over or, if the patient is under 18 years of age, by the person having 2
parental responsibility (within the meaning of the Children and Young 3
Persons (Care and Protection) Act 1998) for the patient. 4
(3) If the NSW Trustee undertakes the management of the whole or part of 5
the estate of a patient, the whole or part of the estate is taken to be 6
committed to the management of the NSW Trustee. 7
Part 4.4 Orders for management of estates of missing 8
persons 9
54 Declaration and order where person missing (cf PE Act, s 21C) 10
(1) The Supreme Court may: 11
(a) declare that a person is a missing person and order that the estate 12
of the person (or any part of it) be subject to management under 13
this Act, and 14
(b) by order appoint a suitable person as manager of the estate of the 15
person or commit the management of the estate of the person to 16
the NSW Trustee. 17
(2) A declaration and order may be made for the estate of a person under 18
this section only if the Supreme Court is satisfied that: 19
(a) the person is a missing person, and 20
(b) it is not known whether the person is alive, and 21
(c) all reasonable efforts have been made to locate the person, and 22
(d) the person's usual place of residence is in this State, and 23
(e) persons residing at the place where the person was last known to 24
reside, or relatives or friends, with whom the person would be 25
likely to communicate, have not heard from, or of, the person for 26
at least 90 days, and 27
(f) it is in the best interests of the person to do so. 28
(3) An application for a declaration and order under this section in relation 29
to a person may be made by any of the following persons: 30
(a) the spouse of the person, 31
(b) a relative of the person, 32
(c) a business partner or employee of the person, 33
(d) the Attorney General, 34
(e) the NSW Trustee, 35
(f) any other person who has an interest in the estate of the person. 36
Page 25
Clause 55 NSW Trustee and Guardian Bill 2009
Chapter 4 Management functions relating to persons incapable of managing their
Part 4.5 affairs
Management of estates
(4) On the hearing of an application for the purposes of this section, 1
evidence may be given to the Supreme Court in such form and in 2
accordance with such procedures as the Court thinks fit. 3
Part 4.5 Management of estates 4
Division 1 Management of estates by NSW Trustee 5
55 Application of Division 6
This Division applies in respect of the estate of a managed person that 7
is committed to the management of the NSW Trustee. 8
56 General management functions (cf PE Act, s 24) 9
The NSW Trustee has, and may exercise, in respect of the estate of a 10
managed person, the following functions: 11
(a) all functions necessary and incidental to its management and 12
care, 13
(b) such other functions as the Supreme Court or the Guardianship 14
Tribunal (in the case of a person under guardianship) may direct 15
or authorise the NSW Trustee to have or exercise. 16
Note. See also section 16, which sets out the general powers of the NSW 17
Trustee with respect to property. 18
57 NSW Trustee has all functions of managed person (cf PE Act, s 26 (1) and 19
(1A)) 20
(1) For the purposes of its protective capacities in respect of a protected 21
person or patient, the NSW Trustee has, and may exercise, all the 22
functions the person or patient has and can exercise or would have and 23
could exercise if under no incapacity. 24
(2) For the purposes of its protective capacities for a managed missing 25
person, the NSW Trustee has, and may exercise, all the functions that 26
the person has and can exercise or would have and could exercise if the 27
person were not missing. 28
58 Execution of documents for managed persons (cf PE Act, s 26 (2) and (3)) 29
(1) The NSW Trustee may execute and sign any document in the name of 30
and on behalf of a managed person for the purpose of exercising a 31
function in a protective capacity. 32
(2) An exercise of a function by the NSW Trustee under this section: 33
(a) is as effective as if it were exercised by the managed person, and 34
(b) to the extent to which that person lacks capacity to exercise the 35
function, is as effective as if the person did not lack capacity. 36
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affairs Part 4.5
Management of estates
(3) A person acting on a document executed or signed by the NSW Trustee 1
under this section is not bound to inquire as to the NSW Trustee's power 2
to execute or sign the document or as to the application of any money 3
paid pursuant to any dealing with the NSW Trustee as a consequence of 4
the document. 5
59 Application of money of managed estates 6
The NSW Trustee may apply money of the estate of a managed person 7
towards any one or more of the following purposes: 8
(a) the payment of the debts and engagements of the person and the 9
repayment of expenses chargeable to the estate of the person, 10
(b) in the event of the death of the person, the person's funeral 11
expenses, 12
(c) the maintenance of the spouse of the person or any child, parent 13
or other person dependent upon the person, or for whose 14
maintenance the person provided when not a managed person or 15
would be expected to provide, 16
(d) the payment of all proper costs incurred in or about the care, 17
protection, recovery, sale, mortgage, leasing, disposal and 18
management of the estate of the person, 19
(e) the preservation and improvement of the estate of the person, 20
(f) the taking up of rights to issues of new shares, or options for new 21
shares, to which the person may become entitled by virtue of any 22
shareholdings, 23
(g) the maintenance (including future maintenance), clothing, 24
medicine and care, past and present, of the person. 25
60 Arrangements during absence of patient from mental health facility (cf 26
PE Act, s 37) 27
(1) While a protected person who is a patient is absent from a mental health 28
facility, the NSW Trustee may, at the discretion of the NSW Trustee: 29
(a) pay to the patient or to any person on behalf of the patient who 30
gives satisfactory security to the NSW Trustee for the proper 31
management and disposal of it, or as the patient or person directs, 32
the whole or any part of the money standing to the credit of the 33
current account of the patient in the common fund, and 34
(b) hand over to the patient or person, or as the patient or person 35
directs, all or any chattels or documents forming part of the estate 36
of the patient. 37
(2) The receipt of a person in accordance with whose direction money is 38
paid or chattels or documents are handed over under this section is an 39
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Clause 61 NSW Trustee and Guardian Bill 2009
Chapter 4 Management functions relating to persons incapable of managing their
Part 4.5 affairs
Management of estates
absolute release to the NSW Trustee from liability in respect of any 1
action taken by the NSW Trustee under this section. 2
61 Supreme Court may give directions to NSW Trustee (cf PE Act, s 12) 3
(1) The Supreme Court may give to the NSW Trustee such directions as the 4
Court thinks necessary with respect to the exercise by the NSW Trustee 5
of its functions in its protective capacities. 6
(2) An application for directions may be made by any of the following: 7
(a) the NSW Trustee, 8
(b) a managed person, 9
(c) a relative, friend or debtor of a managed person, 10
(d) any other person who has, in the opinion of the Supreme Court, a 11
sufficient interest in the matter. 12
62 Review by ADT of decisions by NSW Trustee under this Division (cf PE 13
Act, s 28A) 14
(1) An application may be made to the ADT for a review of a decision of 15
the NSW Trustee that: 16
(a) is made in connection with the exercise of the NSW Trustee's 17
functions under this Division, and 18
(b) is of a class of decision prescribed by the regulations for the 19
purposes of this section. 20
(2) Subsection (1) does not apply if the decision of the NSW Trustee was 21
made in accordance with a direction given by the Supreme Court to the 22
NSW Trustee. 23
(3) An application under this section may be made by: 24
(a) a managed person in respect of whose estate the decision was 25
made, or 26
(b) the spouse of a managed person in respect of whose estate the 27
decision was made, or 28
(c) any other person whose interests are, in the opinion of the ADT, 29
adversely affected by the decision. 30
Division 2 Management of estates by other persons 31
63 Application of Division 32
This Division applies in respect of the estate of a managed person for 33
whom a manager (other than the NSW Trustee) has been appointed, 34
whether under this Act or under section 25M of the Guardianship Act 35
1987. 36
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Management functions relating to persons incapable of managing their Chapter 4
affairs Part 4.5
Management of estates
64 Orders by Supreme Court and NSW Trustee as to management of estates 1
(1) The Supreme Court or the NSW Trustee may make such orders as it 2
thinks fit in relation to the administration and management of the estates 3
of managed persons. 4
(2) The Supreme Court or the NSW Trustee may also make such orders as 5
it thinks fit in connection with authorising, directing and enforcing the 6
exercise of the functions of managers under this Act. 7
(3) The Supreme Court may also make such orders as it thinks fit in 8
connection with supervising the exercise of the functions of managers 9
under this Act. 10
(4) An order by the NSW Trustee is subject to the regulations or to any 11
direction by the Supreme Court or to any order of the Guardianship 12
Tribunal (in the case of a person under guardianship). 13
65 Orders by Supreme Court and NSW Trustee as to property 14
(1) General power 15
The Supreme Court or the NSW Trustee may make such orders as 16
appear to it necessary for rendering the property and income of a 17
managed person available for the following purposes: 18
(a) the payment of the debts and engagements of, and otherwise for 19
the benefit of, the person, 20
(b) the maintenance and benefit of the family of the person, 21
(c) otherwise as it thinks necessary or desirable for the care and 22
management of the estate of the person. 23
(2) Orders as to disposal of estate 24
Without limiting the generality of subsection (1), the Supreme Court or 25
the NSW Trustee may order that any property of the person be sold, 26
mortgaged, dealt with or disposed of as the Court or the NSW Trustee 27
thinks most expedient for the purpose of raising or securing or repaying 28
with or without interest money which is to be or which has been applied 29
to any one or more of the following purposes: 30
(a) payment of the person's debts or engagements, 31
(b) discharge of any encumbrance on property of the person, 32
(c) payment of any debt or expenditure incurred for the maintenance 33
(including future maintenance), or otherwise for the benefit, of 34
the person, 35
(d) payment of the costs of any proceeding under this Act or of any 36
sale or other disposition made under this Act, 37
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Clause 66 NSW Trustee and Guardian Bill 2009
Chapter 4 Management functions relating to persons incapable of managing their
Part 4.5 affairs
Management of estates
(e) payment of such other sum or sums to such person or persons as 1
the Court or the NSW Trustee thinks fit. 2
(3) Orders as to application of money 3
Without limiting subsection (1), the Supreme Court or the NSW Trustee 4
may authorise and direct the application of money comprising the whole 5
or any part of the estate of the person to any one or more of the 6
following purposes: 7
(a) the preservation and improvement of the estate of the person, 8
(b) the taking up of rights to issues of new shares, or options for new 9
shares, to which the person may become entitled by virtue of any 10
shareholdings, 11
(c) the investment of money, being money not required for the time 12
being for any of the other purposes specified in this subsection, 13
in such manner as the Court or the NSW Trustee thinks fit. 14
(4) An order by the NSW Trustee is subject to the regulations or to any 15
order of the Supreme Court or to any order of the Guardianship Tribunal 16
(in the case of a person under guardianship). 17
66 NSW Trustee may authorise and direct functions of other managers 18
(1) The NSW Trustee may, by order: 19
(a) authorise a manager to have all, or any specified, functions 20
necessary and incidental to the management and care of an estate 21
and such other functions as the NSW Trustee may direct or 22
authorise the manager to have or exercise, and 23
(b) give a manager such directions in respect of the orders, 24
authorities and directions authorised by this subsection as the 25
NSW Trustee thinks fit. 26
(2) Without limiting any other provision of this Division, the NSW Trustee 27
may authorise a manager to have functions of a kind specified in 28
section 16. 29
(3) An order by the NSW Trustee is subject to the regulations or to any 30
order of the Supreme Court or to any order of the Guardianship Tribunal 31
(in the case of a person under guardianship). 32
(4) This section is in addition to sections 64 and 65. 33
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NSW Trustee and Guardian Bill 2009 Clause 67
Management functions relating to persons incapable of managing their Chapter 4
affairs Part 4.5
Management of estates
67 Managers may execute documents (cf PE Act, s 26 (2) and (3)) 1
(1) A manager may, in accordance with an order or direction of the 2
Supreme Court, the NSW Trustee or the Guardianship Tribunal (in the 3
case of a person under guardianship), execute and sign any document 4
and do any other thing in the name of and on behalf of the managed 5
person. 6
(2) An exercise of a function by a manager under this section: 7
(a) is as effective as if it were exercised by the managed person, and 8
(b) to the extent to which that person lacks capacity to exercise the 9
function, is as effective as if the person did not lack capacity. 10
(3) A person acting on a document executed or signed by a manager under 11
this section is not bound to inquire as to the manager's power to execute 12
or sign the document or as to the application of any money paid pursuant 13
to any dealing with the manager as a consequence of the document. 14
68 Security may be required in respect of estate management (cf PE Act, 15
s 31) 16
(1) The Supreme Court or the Guardianship Tribunal may require a 17
manager it appoints to give security (including security comprising the 18
assets of the managed estate) to the NSW Trustee in respect of the 19
management. 20
(2) A manager is not taken to have complied with a requirement under 21
subsection (1) unless the security given has been approved by the NSW 22
Trustee. 23
(3) The NSW Trustee is to ensure that the conditions of any security 24
provided under this section, or before the commencement of this 25
section, in respect of the management of the estate of a managed person 26
are complied with. 27
(4) The NSW Trustee must report any failure to comply with any such 28
condition to the Supreme Court or the Guardianship Tribunal (as the 29
case requires) immediately on becoming aware of the failure. 30
(5) The provisions of Part 7A of the Bail Act 1978 and Part 7 of the Fines 31
Act 1996 apply to the forfeiture of any security and to the recovery of 32
any security so forfeited in the same way as they apply to the forfeiture 33
of bail money and to the recovery of any bail money so forfeited. 34
69 Managers may lodge estate funds with NSW Trustee (cf PE Act, s 31A) 35
A manager may, subject to any order of the Supreme Court under this 36
Part or of the Guardianship Tribunal, lodge with the NSW Trustee any 37
money that comprises the whole or part of the estate of the managed 38
person. 39
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Clause 70 NSW Trustee and Guardian Bill 2009
Chapter 4 Management functions relating to persons incapable of managing their
Part 4.5 affairs
Management of estates
70 Review by ADT of decisions by NSW Trustee in relation to managers (cf 1
PE Act, s 28A) 2
(1) An application may be made to the ADT for a review of a decision by 3
the NSW Trustee under this Part in relation to the functions of a person 4
appointed as a manager. 5
(2) Subsection (1) does not apply if the decision by the NSW Trustee was 6
made in accordance with a direction given by the Supreme Court to the 7
NSW Trustee. 8
(3) An application under this section may be made by: 9
(a) the person appointed as manager, or 10
(b) any other person who, in the opinion of the ADT, has a genuine 11
interest in the matter to which the NSW Trustee's decision 12
relates. 13
Division 3 Management of estates generally 14
71 Managed person cannot deal with estate (cf PE Act, s 23A) 15
(1) The power of a managed person to deal with his or her estate is 16
suspended in respect of so much of that estate as is subject to 17
management under this Act. 18
(2) However, the manager may, by instrument in writing, authorise the 19
managed person to deal with so much of the estate as the manager 20
considers appropriate and specifies in the instrument. 21
(3) The authorisation may be given at any time and may be withdrawn, 22
wholly or in part, at any time. 23
(4) More than one authorisation may be given under this section. 24
(5) An authorisation must not be given or withdrawn by a manager who is 25
not the NSW Trustee without the approval of the NSW Trustee. 26
(6) An application may be made to the ADT for a review of a decision of 27
the NSW Trustee about whether or not to approve of the giving or 28
withdrawal of an authorisation. 29
(7) An application for review may be made by: 30
(a) the manager, or 31
(b) the managed person, or 32
(c) the spouse of the managed person, or 33
(d) any other person who, in the opinion of the ADT, has a genuine 34
interest in the matter to which the NSW Trustee's decision 35
relates. 36
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NSW Trustee and Guardian Bill 2009 Clause 72
Management functions relating to persons incapable of managing their Chapter 4
affairs Part 4.5
Management of estates
72 Consultation by NSW Trustee (cf PE Act, s 50) 1
(1) The NSW Trustee must take the following steps before taking any 2
action in respect of the estate of a managed person: 3
(a) the NSW Trustee must determine whether the action is of such a 4
nature that the person or a relative or relatives of the person 5
should be consulted about the action, 6
(b) if the NSW Trustee determines that consultation should take 7
place, the NSW Trustee must cause to be taken all steps that are 8
reasonably practicable in the circumstances to give notice to the 9
person or the relative or relatives of the person of the action, 10
(c) the NSW Trustee must consider any submissions made in 11
response to the notice within the time specified in the notice. 12
(2) In determining whether consultation is required in relation to the action, 13
the NSW Trustee must consider all relevant circumstances and matters, 14
including (without limitation) the following: 15
(a) the value of the estate, 16
(b) the value and nature of any particular property proposed to be 17
affected, 18
(c) the consequences of the proposed action, 19
(d) the necessity or practicality of the proposed action, 20
(e) the extent (if any) to which the estate may be prejudiced by any 21
delay in the proposed action being taken. 22
73 Temporary provision for maintenance (cf PE Act, s 72) 23
(1) The NSW Trustee may, if of the opinion that it is desirable to do so, 24
make an order authorising payments from any part of the estate of a 25
managed person for the provision of maintenance and other necessary 26
requirements of the managed person or the managed person's family, 27
pending orders being made as to the management of the estate. 28
(2) An order: 29
(a) is to be in writing addressed to the person holding the relevant 30
part of the estate and the person to whom payment is to be made, 31
and 32
(b) is to specify the person or persons, or the purposes, for which the 33
payment is to be made, and 34
(c) may specify the purposes for which the payment is to be used, 35
and 36
(d) is to specify the amount payable. 37
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Clause 74 NSW Trustee and Guardian Bill 2009
Chapter 4 Management functions relating to persons incapable of managing their
Part 4.5 affairs
Management of estates
(3) A person to whom an amount is paid under this section must, if directed 1
to do so by the NSW Trustee, account to the NSW Trustee for the 2
application of the amount. 3
74 Financial plans 4
(1) The NSW Trustee may prepare a financial plan for the estate of a 5
managed person and may charge a fee for the preparation of the 6
financial plan. 7
(2) The NSW Trustee may prepare a financial plan for the estate of a 8
managed person for which it is not the manager only if requested to do 9
so by the manager. 10
75 Personal items to be preserved (cf PE Act, s 51) 11
A manager must, as far as is reasonably practicable, ensure that any 12
items in the estate of a managed person that are of a personal nature and 13
that the managed person or relatives of the managed person has or have 14
requested to be preserved are preserved. 15
76 Gifts 16
(1) A manager may use property of the estate of a managed person for the 17
following gifts: 18
(a) a gift to a relative or close friend of the managed person that is of 19
a seasonal nature or is given because of a special event (such as a 20
birthday or marriage), 21
(b) a donation of a nature that the managed person made when the 22
managed person had capacity to do so or that the managed person 23
might reasonably be expected to make. 24
(2) A manager may make a gift under this section only if the value of the 25
gift is not more than what is reasonable having regard to all the 26
circumstances and, in particular, the managed person's financial 27
circumstances and the size of the managed person's estate. 28
77 Improvements of estate property may be charged on estate (cf PE Act, 29
s 49) 30
(1) The cost of the improvement of property of the estate of a managed 31
person may, with interest, be charged on the property improved or on 32
any other property of the estate. 33
(2) A charge on property under this section may be created in favour of a 34
person as trustee for the managed person, if the cost is paid from the 35
personal estate of the managed person. 36
(3) A charge on property under this section must not confer any right of sale 37
or foreclosure during the lifetime of the managed person. 38
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Management functions relating to persons incapable of managing their Chapter 4
affairs Part 4.5
Management of estates
(4) Any interest payable under a charge on property under this section must, 1
during the lifetime of the managed person, be at a rate that is generally 2
able to be paid out of the income of the estate. The interest must, as far 3
as practicable, be paid out of that income. 4
78 Enforcement of trustee powers (cf PE Act, s 71) 5
(1) The Supreme Court may, on application by an interested person, order 6
that the manager, on behalf of and in the name of the managed person: 7
(a) exercise a power vested in the managed person as a trustee or 8
guardian, or 9
(b) give consent as a trustee or guardian to the exercise of a power. 10
(2) The Supreme Court may, on such an application: 11
(a) make an order as to the manner in which the power is to be 12
exercised, and 13
(b) if it is appropriate in the circumstances of the case, make any 14
order respecting the trust property that it could have made on the 15
appointment of a new trustee. 16
(3) The manager may exercise a function in accordance with an order under 17
this section. 18
(4) If the manager, in accordance with an order of the Supreme Court under 19
this Act, appoints a trustee on behalf of and in the name of a managed 20
person, the trustee has the same functions as the trustee would have had 21
if lawfully appointed by the Court. 22
79 Supreme Court may dissolve partnership of managed person (cf PE Act, 23
s 69) 24
The Supreme Court may, on application by an interested person, by 25
order, dissolve a partnership if a member of the partnership becomes a 26
managed person. 27
80 Manager may obtain copy of will 28
(1) A manager may, by notice in writing, require a person who has custody 29
of the will of the managed person to give a copy of the will, certified in 30
accordance with the regulations, to the manager within 14 days of the 31
notice being given. 32
(2) The Supreme Court may, on application by a person who has custody of 33
a will, direct that the person is not required to provide a certified copy 34
of the will to a manager of the estate. 35
(3) A person must not, without reasonable excuse, fail to comply with a 36
notice given under this section. 37
Maximum penalty: 5 penalty units. 38
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Clause 81 NSW Trustee and Guardian Bill 2009
Chapter 4 Management functions relating to persons incapable of managing their
Part 4.5 affairs
Management of estates
81 Reciprocal arrangements for management of estates 1
(1) In this section: 2
management functions of the NSW Trustee or the Public Trustee of a 3
reciprocating State means functions that may be exercised in the 4
management of the estate of a person by the NSW Trustee or the Public 5
Trustee of the reciprocating State. 6
Public Trustee of a reciprocating State means a person or body who 7
exercises functions equivalent to the protective capacities of the NSW 8
Trustee in the reciprocating State. 9
reciprocating State means a State or Territory of Australia or a country 10
prescribed by the regulations as a reciprocating State for the purposes of 11
this section. 12
(2) The Public Trustee of a reciprocating State may, by notice in writing to 13
the NSW Trustee, authorise the NSW Trustee to exercise specified 14
management functions of the NSW Trustee in relation to the estate in 15
New South Wales of a person who resides in the reciprocating State and 16
is certified by the Public Trustee of the reciprocating State to be 17
incapable of managing his or her own affairs (an interstate protected 18
person). 19
(3) The NSW Trustee has the same functions in relation to the management 20
in this State of the estate of an interstate protected person as it has in the 21
management in this State of the estate of a protected person. 22
(4) The NSW Trustee must pay or deliver to the Public Trustee of the 23
reciprocating State the balance of any property or money of the estate 24
of an interstate protected person received by the NSW Trustee, after 25
payment of creditors and any charges under this Act. 26
(5) The NSW Trustee may, by notice in writing to the Public Trustee of a 27
reciprocating State, authorise the Public Trustee to exercise specified 28
management functions of the NSW Trustee in relation to the estate in 29
the reciprocating State of a managed person. 30
(6) The NSW Trustee: 31
(a) is not required to see to the application of, and is not liable in 32
respect of, any money or property paid or delivered to the Public 33
Trustee of a reciprocating State under this section, and 34
(b) is not liable for any act or omission of the Public Trustee of a 35
reciprocating State in the exercise of functions referred to in this 36
section. 37
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NSW Trustee and Guardian Bill 2009 Clause 82
Management functions relating to persons incapable of managing their Chapter 4
affairs Part 4.5
Management of estates
82 Protection of interests of managed person on partition (cf PE Act, s 47) 1
If property is exchanged under this Act on behalf of a managed person, 2
it is subject to the same uses, trusts, charges, dispositions, devices and 3
conditions that the property given in exchange would have been subject 4
to if it had not been exchanged. 5
83 Protection of interests in property of beneficiaries and other persons (cf 6
PE Act, s 48) 7
(1) Any managed person and any beneficiary of a managed person has the 8
same interest in any surplus money or other property arising from any 9
sale, mortgage or disposition of any property or other dealing with 10
property under this Act as the managed person or beneficiary would 11
have had in the property the subject of the sale, mortgage, disposition or 12
dealing, if no sale, mortgage, disposition or dealing had been made. 13
(2) The surplus money or other property arising as referred to in subsection 14
(1) is taken to be of the same nature as the property sold, mortgaged, 15
disposed of or dealt with. 16
(3) Except as provided by subsection (4), money received on or for equality 17
of partition and exchange, and all fines, premiums and sums of money 18
received on the grant or renewal of a lease where the property the 19
subject of the partition, exchange or lease was real estate of the managed 20
person are to be considered as real estate. 21
(4) Fines, premiums and sums of money received on the grant or renewal 22
of leases of property of which the managed person was the tenant for life 23
are to be considered as personal estate of the managed person. 24
(5) The Court may make such orders as it thinks fit to give effect to this 25
section. 26
(6) In this section: 27
beneficiary of a managed person means a beneficiary under a will of the 28
person or an executor, administrator or assign of the managed person. 29
Note. Mortgage includes a charge (see section 3 (1)). 30
84 Powers of attorney 31
A managed person may give a power of attorney even though the estate 32
of the person is subject to management. 33
Note. See section 50 of the Powers of Attorney Act 2003 for provisions relating 34
to the suspension or termination of powers of attorney given by persons whose 35
estates are managed under this Act. 36
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Clause 85 NSW Trustee and Guardian Bill 2009
Chapter 4 Management functions relating to persons incapable of managing their
Part 4.6 affairs
Suspension or termination of management
Part 4.6 Suspension or termination of management 1
Division 1 Revocation of management orders 2
85 Termination by revocation of orders 3
The management of the estate of a managed person under this Act is 4
terminated if the order that the estate be subject to management is 5
revoked. 6
Note. The Guardianship Tribunal may revoke a management order relating to 7
a person under guardianship, see Division 2 of Part 3A of the Guardianship Act 8
1987. 9
86 Revocation of orders by Supreme Court (cf PE Act, s 35) 10
(1) The Supreme Court, on application by a protected person and if the 11
Court is satisfied that the protected person is capable of managing his or 12
her affairs, may: 13
(a) revoke any declaration made that the person is incapable of 14
managing his or her affairs, and 15
(b) revoke the order that the estate of the person be subject to 16
management under this Act, and 17
(c) make any orders that appear to it to be necessary to give effect to 18
the revocation of the order, including the release of the estate of 19
the person from the control of the Court or the manager and the 20
discharge of any manager. 21
(2) For the purposes of this section: 22
(a) evidence of a person's capability to manage his or her own affairs 23
may be given to the Supreme Court in any form and in 24
accordance with any procedures that the Court thinks fit, and 25
(b) the Court may personally examine a person whose capability to 26
manage his or her affairs is in question or dispense with any such 27
examination, and 28
(c) the Court may otherwise inform itself as to the person's 29
capability to manage his or her own affairs as it thinks fit. 30
87 Orders where person no longer missing (cf PE Act, s 35A) 31
The Supreme Court, on application by a managed missing person or 32
other person and if satisfied that a managed missing person is alive, 33
may: 34
(a) revoke any declaration made that the person is a missing person, 35
and 36
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NSW Trustee and Guardian Bill 2009 Clause 88
Management functions relating to persons incapable of managing their Chapter 4
affairs Part 4.6
Suspension or termination of management
(b) revoke the order that the estate of the person be subject to 1
management under this Act, and 2
(c) make any orders that appear to it to be necessary to give effect to 3
the revocation of the order, including the release of the estate of 4
the person from the control of the Court or the manager and the 5
discharge of any manager. 6
88 Revocation of order by MHRT (cf PE Act, s 36) 7
The MHRT, on application by a protected person who was, but has 8
ceased to be, a patient, may revoke the order that the estate of the person 9
be subject to management under this Act, if it is satisfied that the 10
protected person is capable of managing his or her affairs. 11
Division 2 Termination by NSW Trustee 12
89 NSW Trustee may terminate management of protected persons or 13
patients (cf PE Act, s 38) 14
(1) The NSW Trustee may certify that management of the estate of a 15
protected person or patient by the NSW Trustee is terminated if: 16
(a) the protected person ceases to be a person under guardianship, or 17
(b) the protected person or patient ceases to be a patient, 18
and the NSW Trustee is satisfied that the person is capable of managing 19
his or her own affairs. 20
(2) Any order that the estate of the person is subject to management under 21
this Act ceases to have effect on certification by the NSW Trustee. 22
(3) The NSW Trustee may refer to the Supreme Court, the MHRT or the 23
Guardianship Tribunal (in the case of a person under guardianship) the 24
question of whether a protected person or patient referred to in 25
subsection (1) is capable of managing his or her own affairs. 26
90 Continuation of management after discharge etc (cf PE Act, s 41 (2)) 27
(1) This section applies if the NSW Trustee becomes aware that a protected 28
person or patient whose estate is managed by the NSW Trustee: 29
(a) ceases to be under guardianship, or 30
(b) ceases to be a patient. 31
(2) If the NSW Trustee is not satisfied that the person is capable of 32
managing his or her own affairs, the NSW Trustee must do all 33
reasonably practicable things to inform the person: 34
(a) if the person is a protected person, that the person may apply to a 35
specified body for the revocation of the order that the person's 36
estate be subject to management, and 37
Page 39
Clause 91 NSW Trustee and Guardian Bill 2009
Chapter 4 Management functions relating to persons incapable of managing their
Part 4.6 affairs
Suspension or termination of management
(b) if the person is a patient who is not a protected person, that the 1
person may apply to have the management terminated, and 2
(c) in any case, that if the order is not revoked or an application for 3
termination is not made, management of the estate will continue 4
at the discretion of the NSW Trustee. 5
(3) The NSW Trustee may, at the discretion of the NSW Trustee, continue 6
to manage the property and affairs of the person until: 7
(a) the order that the estate of the person be subject to management 8
under this Act is revoked or, in the case of a person who is not a 9
protected person, an application for termination is made, or 10
(b) the NSW Trustee is satisfied that the person is capable of 11
managing his or her affairs, 12
whichever first occurs. 13
91 NSW Trustee may terminate management where person no longer 14
missing (cf PE Act, s 35A) 15
(1) The NSW Trustee may, if satisfied that a managed missing person is 16
alive, certify that management of the estate of the person is terminated. 17
(2) Any order that the estate of the protected person is subject to 18
management under this Act ceases to have effect on certification by the 19
NSW Trustee. 20
(3) The regulations may make provision for or with respect to information 21
that the NSW Trustee may take into account for the purpose of being 22
satisfied that a managed missing person is alive. 23
92 NSW Trustee may terminate management of patients who are not 24
protected persons (cf PE Act, s 64) 25
(1) The NSW Trustee may, on application, terminate the management of 26
the estate by the NSW Trustee of a patient who is not a protected person. 27
(2) An application may be made by a patient if the patient is 18 years or 28
over or, if the patient is under 18 years of age, by the person having 29
parental responsibility (within the meaning of the Children and Young 30
Persons (Care and Protection) Act 1998) for the patient. 31
Division 3 Termination on death 32
93 Termination on death of person 33
The management of the estate of a managed person under this Act is 34
terminated on the death of the person. 35
Page 40
NSW Trustee and Guardian Bill 2009 Clause 94
Management functions relating to persons incapable of managing their Chapter 4
affairs Part 4.6
Suspension or termination of management
94 Estate to be handed over to legal representative of deceased person 1
(cf PE Act, s 42 (1) (b)) 2
(1) On the death of a managed person, the NSW Trustee: 3
(a) must pay to the legal representative of the person all money 4
standing to the credit of the current account of the person in the 5
common fund, and 6
(b) must hand over all chattels and documents forming part of the 7
estate of the person to the legal representative. 8
(2) This section is subject to any order of the Supreme Court and to section 9
95. 10
Note. The legal representative includes the executor or administrator of an 11
estate and other persons entitled to administer the estate, see section 55 (2) of 12
the Succession Act 2006. 13
95 Amounts may be paid to beneficiaries or other persons (cf PE Act, s 42 14
(1) (a)) 15
(1) The NSW Trustee may, at the discretion of the NSW Trustee: 16
(a) pay to a person claiming to be entitled in the distribution of the 17
estate or under the will of a deceased managed person (a 18
beneficiary) any sum (not exceeding the prescribed amount) out 19
of money standing to the credit of the account of the deceased 20
person in the common fund, or 21
(b) hand over to the beneficiary any chattels having a value not 22
exceeding that amount and forming part of the estate of the 23
deceased person or any documents having a value not exceeding 24
that amount, or relating to property having a value not exceeding 25
that amount, and forming part of the estate of the deceased 26
person. 27
(2) The NSW Trustee may exercise functions under this section: 28
(a) whether or not probate of the will or letters of administration of 29
the estate have been obtained, and 30
(b) whether or not legal proof is given of the right or title of the 31
beneficiary. 32
96 NSW Trustee may complete transactions (cf PE Act, s 42 (2) and (3)) 33
(1) If a managed person dies, the NSW Trustee may take such steps as are 34
necessary to complete any transaction: 35
(a) that relates to the person's estate, and 36
(b) that was commenced before the death of the person, and 37
(c) to which the person was a party immediately before the person's 38
death. 39
Page 41
Clause 97 NSW Trustee and Guardian Bill 2009
Chapter 4 Management functions relating to persons incapable of managing their
Part 4.6 affairs
Suspension or termination of management
(2) This section does not empower the NSW Trustee to do anything in 1
contravention of: 2
(a) the directions of any executor, administrator or trustee of the 3
person's estate, or 4
(b) any court order. 5
Division 4 General matters relating to termination of 6
management of estates 7
97 NSW Trustee may continue to act after termination event occurs (cf PE 8
Act, s 43) 9
The NSW Trustee may continue to act as, and exercise the functions of, 10
the manager of the estate of a person under this Act until: 11
(a) in the case of a deceased person, the NSW Trustee is satisfied that 12
the person has died, or 13
(b) in the case of the revocation of management under this Act by 14
order of the Supreme Court, the MHRT or by the Guardianship 15
Tribunal, a copy of the order is served on the NSW Trustee. 16
98 Estate to be handed over on termination of management (cf PE Act, ss 39 17
and 40) 18
(1) If the management of the estate of a managed person by the NSW 19
Trustee terminates (other than because of the death of the person), the 20
NSW Trustee must, subject to any order of the Supreme Court or the 21
Guardianship Tribunal: 22
(a) pay to the person, or as the person directs, all money standing to 23
the credit of the current account of the person in the common 24
fund, and 25
(b) hand over to the person, or as the person directs, all chattels and 26
documents forming part of the estate of the person. 27
(2) The receipt of a person in accordance with whose direction money is 28
paid or chattels or documents are handed over under this section is an 29
absolute release to the NSW Trustee from liability in respect of any 30
action taken by the NSW Trustee under this section. 31
99 Protected person or legal representative bound by acts of NSW Trustee 32
(cf PE Act, s 45) 33
If the management of an estate of a person by the NSW Trustee is 34
terminated, the person or the legal representative of the person is bound 35
by and may take advantage of an act lawfully done by the NSW Trustee 36
on behalf of the person: 37
(a) as if the act had been done by the person himself or herself, and 38
Page 42
NSW Trustee and Guardian Bill 2009 Clause 100
Management functions relating to persons incapable of managing their Chapter 4
affairs Part 4.6
Suspension or termination of management
(b) to the extent to which the person had no capacity to do the act, as 1
if the person were under no such incapacity. 2
100 Unclaimed personal effects and money (cf PE Act, s 44) 3
(1) The NSW Trustee may sell all personal effects in the hands of the NSW 4
Trustee belonging to a person, and not claimed within 2 years from the 5
date of termination of management of the estate of the person. The 6
proceeds of the sale must be paid into the Consolidated Fund. 7
(2) All money standing to the credit of the current account of a person in the 8
common fund at the end of 6 years from the date of termination of the 9
management of the estate of the person must be paid to the Consolidated 10
Fund. 11
(3) The owner of the proceeds of a sale referred to in subsection (1) or of 12
any money referred to in subsection (2) is, on proving ownership, 13
entitled to recover the proceeds or money from the Treasurer. 14
(4) Any such proceeds are, or money is, appropriated from the 15
Consolidated Fund for the purpose of enabling its payment to the person 16
and the Treasurer may withdraw the proceeds or money from the 17
Consolidated Fund and pay the proceeds or money to the person 18
accordingly. 19
Page 43
Clause 101 NSW Trustee and Guardian Bill 2009
Chapter 5 Investments and funds
Part 5.1 Investments
Chapter 5 Investments and funds 1
Part 5.1 Investments 2
101 Investment of trust and protective funds 3
(1) The NSW Trustee may invest trust funds and protective funds in 4
accordance with the Trustee Act 1925. 5
(2) Any other manager of an estate of a managed person may invest funds 6
of the estate in accordance with the Trustee Act 1925. 7
102 Additional investment powers of managers relating to protective funds 8
(cf PE Act, s 28) 9
(1) Purchase of real estate 10
A manager may purchase real estate out of part of the estate of a 11
managed person if it appears to the manager to be desirable for the 12
purpose of: 13
(a) protecting the estate from injury or deterioration in value, or 14
(b) increasing the value or facilitating the sale of other lands of the 15
estate, or 16
(c) providing a home for the person or any dependants of the person. 17
(2) Preferred investments 18
A manager may invest any money that is part of the estate of a managed 19
person and is not required under this Act to be applied for any other 20
purpose in the form of investment preferred by the person, if the 21
manager is aware that the person prefers a particular form of 22
investment. 23
(3) For the purpose of ascertaining whether or not a managed person prefers 24
a particular form of investment, the manager may have regard to the 25
following matters: 26
(a) any investments of which the manager is aware that were made 27
by the person before the person became a managed person, 28
(b) any statements made to the manager by relatives of the person, 29
and verified by statutory declaration, as to the views expressed to 30
them by the person, either before or after the person became a 31
managed person, regarding his or her preferred forms of 32
investment, 33
(c) any views expressed to the manager by the person regarding the 34
person's preferred form of investment. 35
Page 44
NSW Trustee and Guardian Bill 2009 Clause 103
Investments and funds Chapter 5
Common funds and Reserve Fund Part 5.2
(4) Section prevails 1
This section has effect despite section 101. 2
Part 5.2 Common funds and Reserve Fund 3
103 Separate accounts to be kept 4
The NSW Trustee must keep a separate account in a common fund with 5
respect to each trust matter of the NSW Trustee and each estate for 6
which the NSW Trustee is the manager. 7
104 Common funds 8
(1) The NSW Trustee is to establish one or more funds to be known as 9
common funds. 10
(2) If there is more than one common fund, each common fund must have 11
a distinguishing number. 12
(3) The NSW Trustee may from time to time, without liability for breach of 13
trust, pay into or withdraw money from a common fund in accordance 14
with this Act. 15
(4) Without limitation, money may be paid into a common fund in respect 16
of one or more trust matters and in respect of one or more clients or 17
managed estates. 18
(5) Amounts credited to a common fund are held on trust by the NSW 19
Trustee. 20
(6) The NSW Trustee may: 21
(a) establish such portfolios and accounts within a common fund as 22
it thinks fit, and 23
(b) establish a common fund on the basis of a unitised system or any 24
other appropriate basis. 25
105 Amounts that may be included in common funds 26
(1) A common fund may include only the following: 27
(a) trust funds or protective funds, or both, 28
(b) amounts payable to the common fund from the Reserve Fund, 29
(c) money paid into court that has been subsequently paid to the 30
NSW Trustee for payment into a common fund, 31
(d) any other money required under any Act to be paid into a 32
common fund under this Act. 33
Page 45
Clause 106 NSW Trustee and Guardian Bill 2009
Chapter 5 Investments and funds
Part 5.2 Common funds and Reserve Fund
(2) An amount must not be included in a common fund if: 1
(a) the relevant trust instrument prohibits investment in the common 2
fund, or 3
(b) the amount is held by the NSW Trustee with another person who 4
has objected in writing to the amount's inclusion in the common 5
fund. 6
(3) In this section, court means the following: 7
(a) the Supreme Court, 8
(b) the Land and Environment Court, 9
(c) the District Court, 10
(d) the Dust Diseases Tribunal, 11
(e) a Local Court, 12
(f) any other court or tribunal prescribed by the regulations. 13
106 Application of income of common funds 14
(1) Income from investment of a common fund may be applied, as 15
determined by the NSW Trustee, for the following: 16
(a) investments authorised by this Act, 17
(b) payment into the Reserve Fund, 18
(c) payment of costs incurred by the NSW Trustee in the exercise of 19
functions under this Act, 20
(d) payments in respect of the accounts from which the fund is 21
derived. 22
(2) For the purposes of subsection (1) (d), payments (including any debits) 23
in respect of accounts from which the fund is derived: 24
(a) are to be made periodically, and 25
(b) are to be divided between each account in the common fund in 26
proportion to the amounts invested from those accounts and the 27
period of the investment. 28
(3) Payments for costs incurred by the NSW Trustee in the exercise of 29
functions under this Act must not exceed the amount approved by the 30
Director-General. 31
107 Policies about common funds 32
(1) The NSW Trustee may determine policies, not inconsistent with this 33
Act, relating to the nature, management and operation of a common 34
fund, and in particular for or with respect to all or any of the following: 35
(a) the class or classes of money that may be included in the fund, 36
Page 46
NSW Trustee and Guardian Bill 2009 Clause 108
Investments and funds Chapter 5
Common funds and Reserve Fund Part 5.2
(b) the class or classes of investment in which money to the credit of 1
the fund may be invested, 2
(c) the portfolios and accounts of a fund, 3
(d) the manner in which interest is to be credited and apportioned, 4
(e) the manner in which profit or loss of a capital nature is to be 5
determined and apportioned, 6
(f) the manner of entry to and exit from the fund, 7
(g) the determination, and the frequency of determination, of the 8
value of investments in the fund, 9
(h) the determination of the method of valuation by reference to 10
which investments in and withdrawals from the fund are to be 11
made, 12
(i) the intervals at which, and the method by which, payment or 13
allocation of the income arising from the fund is to be made. 14
(2) The NSW Trustee may amend or replace the policies from time to time. 15
108 Operation of common fund 16
(1) The NSW Trustee may sell investments belonging to a common fund 17
and may withdraw any of the money belonging to a common fund for 18
any purpose of or relating to its trust capacities or protective capacities. 19
(2) The NSW Trustee may, in its discretion, at any time withdraw from a 20
common fund any amount at credit in the common fund on account of 21
a trust matter or a managed estate and invest the amount on the separate 22
account of the matter or estate. 23
(3) Amounts so withdrawn from a common fund, as from the date of the 24
withdrawal, cease to have any claim for interest or otherwise from the 25
common fund. 26
109 Reserve Fund 27
(1) The NSW Trustee is to establish a Reserve Fund. 28
(2) The Reserve Fund may be applied, as determined by the NSW Trustee, 29
for the following: 30
(a) payment to a common fund of amounts determined by the NSW 31
Trustee to be equivalent to the loss on realisation of any 32
investment of the common fund, 33
(b) payment of any costs incurred in protecting investments of the 34
common fund, 35
(c) payment of any other costs incurred in respect of a common fund 36
or the Reserve Fund or investment of the common fund or 37
Page 47
Clause 110 NSW Trustee and Guardian Bill 2009
Chapter 5 Investments and funds
Part 5.2 Common funds and Reserve Fund
Reserve Fund that the NSW Trustee determines are appropriate 1
to pay from the Reserve Fund, 2
(d) payment of any costs not ordered by a court to be charged against 3
a particular trust or estate (including a managed estate) or 4
otherwise not properly chargeable against a particular trust or 5
estate (including a managed estate), 6
(e) payment of any costs not ordered by a court to be charged against 7
a trust or estate (including a managed estate) but otherwise 8
properly chargeable against a particular trust or estate (including 9
a managed estate) where there are insufficient funds in the 10
particular trust or estate to meet the costs, 11
(f) payment of any costs incurred by the NSW Trustee in obtaining 12
any kind of advice or in any legal proceedings to which the NSW 13
Trustee is or is made a party if the costs are such that, because of 14
general interest and the importance of the subject-matter of the 15
proceedings, they should not, in the opinion of the NSW Trustee, 16
be charged against a particular trust or estate (including a 17
managed estate). 18
(3) The NSW Trustee may invest the Reserve Fund as if it were money held 19
in a common fund. 20
(4) In this section: 21
managed estate means the estate of a managed person. 22
110 Advances (PT Act, s 36F, PE Act, s 59) 23
(1) The NSW Trustee may make advances from a common fund for any 24
purpose of or relating to a trust matter or estate of a managed person. 25
(2) The NSW Trustee may, on application by a person beneficially entitled 26
to a trust or estate (including an estate of a managed person) managed 27
or administered by the NSW Trustee, make an advance to the person of 28
an amount not exceeding half of the value (as estimated by the NSW 29
Trustee) of the person's beneficial interest. 30
(3) Any advance bears interest at the rate fixed by the NSW Trustee. 31
(4) The advance, and any interest on the advance, are a charge on the assets 32
of the trust or estate, or on the specific asset or the beneficial interest, in 33
respect of which the advance was made. 34
(5) If the advance is applied towards the discharge of any debt or liability, 35
the charge under this section ranks in the same order of priority as the 36
debt or liability. 37
Page 48
NSW Trustee and Guardian Bill 2009 Clause 110
Investments and funds Chapter 5
Common funds and Reserve Fund Part 5.2
(6) Any sum advanced from a common fund under this section is, for the 1
purposes of the rules for the fund, taken to be invested in a class of 2
investments in which money to the credit of the fund may be invested. 3
Page 49
Clause 111 NSW Trustee and Guardian Bill 2009
Chapter 6 General
Part 6.1 Fees and charges
Chapter 6 General 1
Part 6.1 Fees and charges 2
111 Fees (cf PT Act, s 9 (1), PE Act, s 8 (1) and (2)) 3
(1) Fees may be charged in respect of the functions of the NSW Trustee. 4
(2) The amount of any such fees may be determined by way of percentage 5
or otherwise and is to be prescribed by the regulations. 6
(3) The NSW Trustee may, at the discretion of the NSW Trustee, waive, 7
remit or reduce any fees payable under this section. 8
112 Payment of costs and fees from trust property (cf PT Act, s 9 (2) and (4)) 9
(1) The NSW Trustee may retain or pay out of any trust property any costs 10
that the NSW Trustee could retain or pay if it were a private trustee. Any 11
fees charged under this Act may be retained or paid in the same manner 12
as, and in addition to, any such costs. 13
(2) The incidence of the fees and costs as between corpus and income is to 14
be determined by the NSW Trustee. 15
113 Payment of costs relating to management of estates by NSW Trustee (cf 16
PE Act, ss 7 and 8 (3) and (4)) 17
(1) The NSW Trustee may retain or pay out of the estate of a managed 18
person, or any money of any such person received by the NSW Trustee, 19
any costs of the NSW Trustee incurred in the care and management of 20
the estate of the person or in the supervision of the management of the 21
estate of the person. 22
(2) The costs are chargeable on and payable from the estate of the person 23
whether or not the management under this Act of the estate of the person 24
has terminated. 25
114 Costs may be recovered on summary application to Court 26
Any costs due or payable to the NSW Trustee may be recovered as a 27
debt in a court of competent jurisdiction. 28
115 Supreme Court or NSW Trustee may order certain costs to be paid out of 29
managed estate (cf PE Act, s 77) 30
(1) The Supreme Court or the NSW Trustee may order that the following 31
costs be paid, in accordance with the order, from the estate of a managed 32
person: 33
Page 50
NSW Trustee and Guardian Bill 2009 Clause 116
General Chapter 6
Miscellaneous Part 6.2
(a) costs with respect to actions taken for the purposes of complying 1
with any order or direction under this Act, or any transfer or 2
conveyance under Chapter 4, 3
(b) remuneration, of a specified amount, to the manager of the estate. 4
(2) The NSW Trustee may make an order under this section only in relation 5
to costs arising from an order or direction given by the NSW Trustee 6
under Chapter 4 or work carried out by the manager of an estate of a 7
managed person in connection with any such order or direction. 8
Part 6.2 Miscellaneous 9
116 NSW Trustee may require information and documents to be provided 10
(1) The NSW Trustee may, by notice in writing given to a person, order the 11
person to furnish to the NSW Trustee such information or records (or 12
both) as the NSW Trustee requires in connection with any matter 13
relating to the responsibilities of the NSW Trustee when acting in a 14
protective capacity. 15
(2) Any such notice must specify the manner in which the information or 16
records are required to be furnished and a reasonable time (not less than 17
14 days after the giving of the notice) by which the information or 18
records are required to be furnished. 19
117 Supreme Court may set aside dealing by patient (cf PE Act, s 75) 20
(1) The Supreme Court may, on application by the NSW Trustee, set aside 21
the disposition of an interest in real or personal property by a patient 22
while a managed person and may make any consequential orders the 23
Court thinks fit. 24
(2) The NSW Trustee must give notice of an application to such persons as 25
the Supreme Court directs. 26
(3) For the purposes of an application, the patient is, in the absence of 27
evidence to the contrary, taken to have been mentally ill when the 28
patient disposed of the interest concerned. 29
118 Orders and directions of NSW Trustee must be complied with 30
(1) An order by the NSW Trustee under this Act has effect according to its 31
tenor. 32
(2) A person must not, without reasonable excuse, fail to comply with an 33
order or direction given to the person by the NSW Trustee in accordance 34
with this Act. 35
Maximum penalty: 10 penalty units. 36
Page 51
Clause 119 NSW Trustee and Guardian Bill 2009
Chapter 6 General
Part 6.2 Miscellaneous
119 Service of orders on NSW Trustee (cf PT Act, s 51) 1
(1) This section applies to an order made by a court or a tribunal, on the 2
application of a person other than the NSW Trustee, that: 3
(a) directs a payment to be made to the NSW Trustee, or 4
(b) vests property in the NSW Trustee, or 5
(c) appoints the NSW Trustee as a trustee, executor or administrator. 6
(2) A person who obtains an order to which this section applies must: 7
(a) serve a copy of the order on the NSW Trustee, and 8
(b) serve on the NSW Trustee a written statement as to any property 9
affected by the order, the location of any such property and the 10
name of any person who possesses the property, if known to the 11
person who obtained the order, and 12
(c) provide the NSW Trustee with any other information that the 13
NSW Trustee reasonably requires the person to provide. 14
(3) A person who obtains an order to which this section applies must not, 15
without reasonable excuse, fail to comply with subsection (2). 16
Maximum penalty: 10 penalty units. 17
120 Appropriation of Consolidated Fund (cf PT Act, s 37) 18
(1) Any amount required to discharge a liability of the NSW Trustee that 19
the NSW Trustee would be personally liable to discharge if it were a 20
private trustee is payable from the Consolidated Fund (which is 21
appropriated for that purpose). 22
(2) An amount is not payable under this section for a liability, and the NSW 23
Trustee is not subject to a liability, if the liability: 24
(a) does not arise out of any act or omission of the NSW Trustee or 25
a member of staff of the NSW Trustee, and 26
(b) could not have been reasonably avoided by the exercise of 27
reasonable diligence by the NSW Trustee or a member of staff of 28
the NSW Trustee. 29
121 Personal liability 30
(1) A matter or thing done or omitted to be done by the Chief Executive 31
Officer, a member of staff of the NSW Trustee or a person acting under 32
the direction of the NSW Trustee or any other person does not, if the 33
matter or thing was done or omitted to be done in good faith for the 34
purpose of executing this or any other Act or the functions of the NSW 35
Trustee, subject the Chief Executive Officer, member of staff or a 36
person so acting personally to any action, liability, claim or demand. 37
Page 52
NSW Trustee and Guardian Bill 2009 Clause 122
General Chapter 6
Miscellaneous Part 6.2
(2) Subsection (1) also applies to any act or omission done or omitted in 1
good faith for the purpose of executing the NSW Trustee's functions, if 2
the NSW Trustee, in good faith, takes out probate or administration of 3
the estate of a deceased person, administers an estate under statutory 4
powers or acts as a trustee under a will and subsequently it is discovered 5
that: 6
(a) the person is not deceased, or 7
(b) if administration is granted or carried out, the person did not die 8
intestate, or 9
(c) if probate is granted or the NSW Trustee is acting under a will, 10
the will was revoked or altered by a later will or is invalid. 11
(3) Subsection (2) does not affect any remedy of a person against any 12
person who has shared in the distribution of the estate concerned or 13
received the benefit of any such trust administered or executed by the 14
NSW Trustee. 15
(4) Any disposal of an interest in property, or any payment made, in the 16
exercise of the protective capacities of the NSW Trustee in accordance 17
with this Act is valid and binding on all persons. 18
122 Evidentiary provisions 19
(1) A certificate signed or purporting to be signed by the Chief Executive 20
Officer or a person authorised in writing by the Chief Executive Officer 21
and stating that: 22
(a) the NSW Trustee is, or the NSW Trustee and any other persons 23
are, the administrators of an estate of a deceased person and the 24
basis and date on which the NSW Trustee and any other persons 25
became authorised to administer the estate of the person, or 26
(b) the NSW Trustee has, or the NSW Trustee and any other persons 27
have, been granted probate or letters of administration of an 28
estate of a deceased person on a specified date, 29
and the name, residence and occupation of the deceased person, is, 30
despite any Act or other law to the contrary, admissible in any legal 31
proceedings and is evidence of the death of the deceased person and of 32
any of the matters stated in the certificate and of the authority of the 33
NSW Trustee to act as administrator or executor. 34
(2) A certificate signed or purporting to be signed by the Chief Executive 35
Officer or a person authorised in writing by the Chief Executive Officer 36
and stating that, on a specified date or during a specified period, the 37
estate of a specified person was or was not subject to management under 38
this Act is admissible in any legal proceedings and is evidence of the 39
matters stated in the certificate. 40
Page 53
Clause 123 NSW Trustee and Guardian Bill 2009
Chapter 6 General
Part 6.2 Miscellaneous
123 Directions by NSW Trustee as to visitors (cf PE Act, s 79) 1
The NSW Trustee may make the following orders: 2
(a) an order directing a specified person to visit a managed person 3
(other than a person who is a patient) and to report in writing to 4
the NSW Trustee on the state of mind, bodily health and general 5
condition of the managed person and on the care and treatment of 6
the managed person, 7
(b) an order directing that such information as the NSW Trustee 8
thinks necessary be given to the person directed to visit the 9
managed person as to the nature and extent of the assets of the 10
managed person and as to the orders made under this Act in 11
respect of the person, 12
(c) an order that any fees and expenses arising in connection with the 13
visit be paid out of the estate of the managed person. 14
124 Service of documents on NSW Trustee 15
(1) A document may be served on the NSW Trustee by leaving it at, or by 16
sending it by post to, the head office of the NSW Trustee. 17
(2) Nothing in subsection (1) affects the operation of any provision of a law 18
or of the rules of a court authorising a document to be served on the 19
NSW Trustee in a manner not provided for by subsection (1). 20
125 Nature of proceedings for offences 21
Proceedings for an offence under this Act or the regulations may be 22
dealt with summarily. 23
126 Submission of budgets 24
(1) Whenever directed to do so by the Director-General, the NSW Trustee 25
is to submit a budget to the Director-General in relation to the NSW 26
Trustee's costs, including projected costs, in connection with the 27
exercise of the NSW Trustee's functions. 28
(2) The budget is to relate to such period, and include such information, as 29
the Director-General directs. 30
127 Savings, transitional and other provisions 31
Schedule 1 contains savings, transitional and other provisions 32
consequent on the enactment of this Act. 33
Page 54
NSW Trustee and Guardian Bill 2009 Clause 128
General Chapter 6
Miscellaneous Part 6.2
128 Regulations 1
(1) The Governor may make regulations, not inconsistent with this Act, for 2
or with respect to any matter that by this Act is required or permitted to 3
be prescribed or that is necessary or convenient to be prescribed for 4
carrying out or giving effect to this Act. 5
(2) In particular, regulations may be made for or with respect to the 6
following: 7
(a) the custody of property placed with the NSW Trustee and 8
instruments of title relating to any such property, 9
(b) the fixing of scales of commission and other charges by the NSW 10
Trustee under this Act, 11
(c) the waiver or reduction of costs by the NSW Trustee. 12
(3) A regulation may create an offence punishable by a penalty not 13
exceeding 20 penalty units. 14
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NSW Trustee and Guardian Bill 2009
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other 1
provisions 2
(Section 127) 3
Part 1 General 4
1 Regulations 5
(1) The regulations may contain provisions of a savings or transitional 6
nature consequent on the enactment of the following Acts: 7
this Act 8
(2) Any such provision may, if the regulations so provide, take effect from 9
the date of assent to the Act concerned or a later date. 10
(3) To the extent to which any such provision takes effect from a date that 11
is earlier than the date of its publication on the NSW legislation website, 12
the provision does not operate so as: 13
(a) to affect, in a manner prejudicial to any person (other than the 14
State or an authority of the State), the rights of that person 15
existing before the date of its publication, or 16
(b) to impose liabilities on any person (other than the State or an 17
authority of the State) in respect of anything done or omitted to 18
be done before the date of its publication. 19
Part 2 Provisions consequent on enactment of this 20
Act 21
Division 1 Preliminary 22
2 Definitions 23
In this Part: 24
appointed day, in its application to any act, matter, thing or 25
circumstance referred to in this Part means: 26
(a) in relation to a provision of a former Act that is repealed by this 27
Act, the day on which the provision is repealed, or 28
(b) in relation to a provision of this Act, the day on which the 29
provision commences. 30
existing common fund means: 31
(a) a common fund established under the Public Trustee Act and in 32
existence immediately before the commencement of Part 5.2 of 33
this Act, or 34
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NSW Trustee and Guardian Bill 2009
Savings, transitional and other provisions Schedule 1
(b) an investment fund established under the Protected Estates Act 1
and in existence immediately before that commencement. 2
existing reserve fund means: 3
(a) the Estates Guarantee and Reserve Account established under 4
section 36B of the Public Trustee Act, or 5
(b) the reserve fund established under Part 4 of the Protected Estates 6
Act. 7
Interest Suspense Account means the Account of that name established 8
under section 36A of the Public Trustee Act. 9
Protective Commissioner means the Protective Commissioner under 10
the Protected Estates Act. 11
Public Trustee means the Public Trustee under the Public Trustee Act. 12
the former Acts means the Protected Estates Act and the Public Trustee 13
Act. 14
the former corporations means the corporations sole constituted under 15
section 7 of the Public Trustee Act and section 5B of the Protected 16
Estates Act. 17
the Protected Estates Act means the Protected Estates Act 1983, as in 18
force immediately before its repeal by this Act. 19
the Public Trustee Act means the Public Trustee Act 1913, as in force 20
immediately before its repeal by this Act. 21
Division 2 General provisions 22
3 Construction of references 23
(1) Subject to this Schedule and the regulations, in any Act or instrument 24
(whether enacted or made before or after the commencement of this 25
clause): 26
(a) a reference to a provision of the former Acts for which there is a 27
corresponding provision in this Act extends to the corresponding 28
provision of this Act, whether or not in identical terms, and 29
(b) a reference to any act, matter or thing referred to in a provision of 30
the former Acts for which there is a corresponding provision in 31
this Act (including anything arising under paragraph (a)) is taken 32
to have been done or omitted under the corresponding provision 33
of this Act, and 34
(c) a reference (however expressed) to a protected person or a 35
protected missing person under the Protected Estates Act is to be 36
read as a protected person or managed missing person within the 37
meaning of this Act, and 38
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NSW Trustee and Guardian Bill 2009
Schedule 1 Savings, transitional and other provisions
(d) a reference to the Public Trustee or Protective Commissioner is 1
to be read as a reference to the NSW Trustee, and 2
(e) a reference to anything being done under the seal or hand of the 3
Public Trustee or the Protective Commissioner is taken to be a 4
reference to its being done under the seal of the NSW Trustee. 5
(2) The regulations may contain provisions that deal, among other things, 6
with the interpretation of references (however expressed) to an Act 7
repealed or amended by this Act or a provision of an Act repealed or 8
amended by this Act. 9
4 General saving 10
Subject to this Schedule and the regulations: 11
(a) anything begun before the appointed day under a provision of the 12
former Acts for which there is a corresponding provision in this 13
Act extends to the corresponding provision of this Act, and 14
(b) subject to paragraph (a), any act, matter or thing done or omitted 15
under a provision of the former Acts for which there is a 16
corresponding provision in this Act (including anything arising 17
under paragraph (a)) is taken to have been done or omitted under 18
the corresponding provision of this Act. 19
5 NSW Trustee to exercise existing functions and responsibilities of 20
Public Trustee and Protective Commissioner 21
(1) Subject to this Schedule and the regulations: 22
(a) any act, matter or thing done or omitted by, to or in relation to the 23
Public Trustee or the Protective Commissioner before the 24
commencement of this clause is taken to have been done or 25
omitted by, to or in relation to the NSW Trustee, and 26
(b) without limiting paragraph (a), anything commenced to be done 27
by, to or in relation to the Public Trustee or the Protective 28
Commissioner in an official capacity before that commencement 29
is taken to have been commenced to have been done by, to or in 30
relation to the NSW Trustee. 31
(2) Subject to this Act and the regulations: 32
(a) this Act and the regulations extend to and in relation to acts, 33
matters and things occurring before the commencement of this 34
Act, and 35
(b) without limiting paragraph (a), this Act extends to and in relation 36
to: 37
(i) trust instruments and other documents made or executed 38
before as well as on or after that commencement, and 39
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NSW Trustee and Guardian Bill 2009
Savings, transitional and other provisions Schedule 1
(ii) persons who died before as well as to persons who die on 1
or after that commencement. 2
6 Certificate evidence 3
(1) This clause applies to a certificate issued before the commencement of 4
this clause under: 5
(a) section 50 of the Public Trustee Act, or 6
(b) section 79A of the Protected Estates Act, or 7
(c) section 57 of the Confiscation of Proceeds of Crime Act 1989. 8
(2) Neither the enactment of this Act nor its operation affects the existence, 9
validity, admissibility or evidentiary value of such a certificate on or 10
after the repeal or amendment of those provisions by this Act. 11
7 Continuation of Protected Estates Regulation 2003 12
(1) The Protected Estates Regulation 2003, as in force immediately before 13
the repeal of the Protected Estates Act, continues in force and is taken 14
to be a regulation under this Act. 15
(2) The Regulation may be amended or repealed in the same way as any 16
other regulation made under this Act. 17
(3) A reference in the Regulation to the Protective Commissioner is to be 18
read as a reference to the NSW Trustee. 19
8 Continuation of Public Trustee Regulation 2008 20
(1) The Public Trustee Regulation 2008, as in force immediately before the 21
repeal of the Public Trustee Act, continues in force and is taken to be a 22
regulation under this Act. 23
(2) The Regulation may be amended or repealed in the same way as any 24
other regulation made under this Act. 25
(3) A reference in the Regulation to the Public Trustee is to be read as a 26
reference to the NSW Trustee. 27
9 References to MHRT relating to mental health inquiries 28
(1) A reference in section 44 to the MHRT is to be read as a reference to a 29
Magistrate who conducts a mental health inquiry under the Mental 30
Health Act 2007. 31
(2) A Magistrate may refer the question of a person's capability to manage 32
his or her own affairs to the MHRT. 33
(3) If a Magistrate refers the question of a person's capability to manage his 34
or her own affairs, the MHRT must consider the capability of the person 35
to manage his or her own affairs and, if satisfied that the person is not 36
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NSW Trustee and Guardian Bill 2009
Schedule 1 Savings, transitional and other provisions
capable of managing his or her own affairs, must order that the estate of 1
the person be subject to management under this Act. 2
(4) An order by the MHRT has effect as if it were made under Part 4.3. 3
(5) Sections 47, 48, 49, 50 and 51 apply in respect of a Magistrate who 4
conducts a mental health inquiry in the same way as they apply in 5
respect of the MHRT. 6
(6) This clause ceases to have effect on the commencement of section 34 of 7
the Mental Health Act 2007, as inserted by Schedule 16 [6] to the Courts 8
and Crimes Legislation Further Amendment Act 2008. 9
Division 3 Dissolution of offices and corporations 10
10 Abolition of offices and dissolution of corporations sole 11
(1) The office of Public Trustee is abolished and the corporation sole 12
constituted by section 7 of the Public Trustee Act is dissolved. 13
(2) The office of Protective Commissioner is abolished and the corporation 14
sole constituted by section 5B of the Protected Estates Act is dissolved. 15
11 NSW Trustee to be same entity as former corporations sole 16
The NSW Trustee is taken, for all purposes, including the rules of 17
private international law, to be a continuation of and the same legal 18
entity as the former corporations. 19
12 Former Public Trustee and Protective Commissioner not entitled to 20
compensation 21
(1) In this clause: 22
former Protective Commissioner means the person holding office as 23
Protective Commissioner immediately before the abolition of the office 24
of Protective Commissioner by this Act. 25
former Public Trustee means the person holding office as Public 26
Trustee immediately before the abolition of the office of Public Trustee 27
by this Act. 28
(2) The former Public Trustee and the former Protective Commissioner 29
cease to hold office as Public Trustee and Protective Commissioner, 30
respectively, on the abolition of those offices by this Act. 31
(3) The former Public Trustee and the former Protective Commissioner are 32
not entitled to any compensation for loss of office. 33
(4) Subclause (3) does not affect any compensation that may be payable 34
under the Public Sector Employment and Management Act 2002. 35
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NSW Trustee and Guardian Bill 2009
Savings, transitional and other provisions Schedule 1
Division 4 Investment and existing funds 1
13 Existing common funds 2
(1) The existing common funds are continued by this clause and are taken 3
to be common funds established under this Act. 4
(2) The regulations may provide that an existing common fund forms part 5
of another common fund established under this Act. 6
(3) The provisions of the Public Trustee Act and the Protected Estates Act, 7
as in force immediately before the commencement of Chapter 5, 8
continue to apply to and in respect of the existing common funds 9
established under those Acts. 10
(4) Despite subclause (3): 11
(a) interest from investments from the existing common fund 12
established under the Public Trustee Act, or any other amount 13
payable under that Act to the Interest Suspense Account or under 14
section 36C of that Act, is to be paid to the existing common fund 15
or the Reserve Fund in accordance with Chapter 5, and 16
(b) interest and other amounts must not be credited to the Interest 17
Suspense Account, and 18
(c) amounts may be paid from the existing common fund for any 19
purposes for which they can be paid under Chapter 5 (including, 20
without limitation, for the costs incurred by the NSW Trustee in 21
the exercise of the NSW Trustee's functions under this Act). 22
(5) Despite subclause (3): 23
(a) section 36A (4) of the Public Trustee Act ceases to apply to the 24
distribution of interest to accounts forming part of an existing 25
common fund established under that Act at the end of the period 26
of 12 months commencing on the commencement of section 106 27
of this Act, or at the end of such further period as may be 28
prescribed by the regulations, and 29
(b) section 106 (2) of this Act applies on and from that date to the 30
distribution of interest to accounts forming part of any such 31
existing common fund. 32
(6) The provisions of Chapter 5 do not apply to and in respect of the 33
existing common funds, except as provided by this Schedule. 34
(7) Policies may be determined under Chapter 5 with respect to the existing 35
common funds. 36
(8) This clause is subject to the regulations. 37
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NSW Trustee and Guardian Bill 2009
Schedule 1 Savings, transitional and other provisions
14 Application of existing interest distribution provisions to new common 1
funds 2
(1) This clause applies to a common fund established under this Act. 3
(2) Despite any other provision of this Act, interest may be distributed 4
among accounts forming part of a common fund in the same manner as 5
is permitted under clause 13 in respect of existing common funds 6
established under the Public Trustee Act. 7
(3) This clause ceases to have effect on the date that section 36A (4) of the 8
Public Trustee Act ceases to apply to an existing common fund. 9
(4) This clause is subject to the regulations. 10
15 Interest Suspense Account 11
(1) The NSW Trustee must, not later than 12 months after the 12
commencement of Part 5.2, determine the following matters: 13
(a) the part of the Interest Suspense Account that should be allocated 14
to the Reserve Fund for the purposes of that Fund, 15
(b) the part of the Interest Suspense Account that should be allocated 16
to the existing common funds, 17
(c) the part of the Interest Suspense Account referred to in paragraph 18
(b) that should be allocated for the current and future payment of 19
the costs incurred by the NSW Trustee in the exercise of its 20
functions under this Act. 21
(2) In making such a determination, the NSW Trustee is to have regard to 22
the purposes for which the Interest Suspense Account would have been 23
used if the Public Trustee Act had not been repealed and to the purposes 24
for which the common funds under this Act and the Reserve Fund may 25
be used. 26
(3) Any part of the Interest Suspense Account identified under subclause 27
(1) (a) is taken to form part of the Reserve Fund and may be used for the 28
purposes of the Reserve Fund. 29
(4) Any part of the Interest Suspense Account identified under subclause 30
(1) (b) is taken to form part of the existing common funds and may be 31
used for the purposes of the existing common funds. 32
(5) In addition, any part of the Interest Suspense Account identified under 33
subclause (1) (c) may be applied, in accordance with Chapter 5, for the 34
costs incurred by the NSW Trustee in the exercise of the NSW Trustee's 35
functions under this Act. 36
(6) Payments for costs out of the part allocated under subclause (1) (c) must 37
not exceed the amount approved by the Director-General. 38
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NSW Trustee and Guardian Bill 2009
Savings, transitional and other provisions Schedule 1
(7) This clause is subject to the regulations. 1
16 Existing reserve funds 2
(1) The existing reserve funds are continued by this clause and are taken to 3
form part of the Reserve Fund established under this Act. 4
(2) Any part of the existing reserve funds may be applied for the purposes 5
for which the Reserve Fund may be used under this Act. 6
(3) The Reserve Fund may be applied for any purpose for which the 7
existing reserve funds could have been used immediately before the 8
commencement of Part 5.2. 9
(4) The provisions of Chapter 5 apply to and in respect of the existing 10
reserve funds, except as provided by this Schedule. 11
(5) This clause is subject to the regulations. 12
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NSW Trustee and Guardian Bill 2009
Schedule 2 Amendment of other Acts
Schedule 2 Amendment of other Acts 1
2.1 Administrative Decisions Tribunal Act 1997 No 76 2
[1] Sections 22 (1B), 71 (4A) (b) and 126 (1A) (b1) and note to section 118A 3
(1) 4
Omit "section 21A of the Protected Estates Act 1983" wherever occurring. 5
Insert instead "section 50 of the NSW Trustee and Guardian Act 2009". 6
[2] Section 126 (1A) (b2) and Schedule 2, Part 4, Division 2, clause 2 (1) 7
Omit "Protected Estates Act 1983" wherever occurring. 8
Insert instead "NSW Trustee and Guardian Act 2009". 9
2.2 Adoption Act 2000 No 75 10
Section 202 Administration of certain estates 11
Omit "Public Trustee" wherever occurring in section 202 (2) and (4). 12
Insert instead "NSW Trustee and Guardian". 13
2.3 Animal Research Act 1985 No 123 14
Schedule 1 Provisions relating to the members of the Panel 15
Omit clause 7 (1) (d). Insert instead: 16
(d) becomes a mentally incapacitated person, 17
2.4 Anzac Memorial (Building) Act 1923 No 27 18
Section 3 Trustees 19
Omit "The Public Trustee" from section 3 (1). 20
Insert instead "The Chief Executive Officer of the NSW Trustee and 21
Guardian". 22
2.5 Banana Industry Act 1987 No 66 23
Schedule 1 Provisions relating to the members of the Committee 24
Omit clause 4 (1) (d). Insert instead: 25
(d) becomes a mentally incapacitated person, 26
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NSW Trustee and Guardian Bill 2009
Amendment of other Acts Schedule 2
2.6 Burns Philp Trustee Company Limited Act 1990 No 82 1
Section 4 Definitions 2
Omit "Protected Estates Act 1983" from paragraph (e) of the definition of in 3
the capacity of trustee. 4
Insert instead "NSW Trustee and Guardian Act 2009". 5
2.7 Child Protection (International Measures) Act 2006 No 12 6
[1] Section 5 Definitions 7
Omit "Public Trustee" from paragraph (b) of the definition of New South 8
Wales authority in section 5 (1). 9
Insert instead "NSW Trustee". 10
[2] Section 5 (1), definition of "Public Trustee" 11
Omit the definition. Insert instead in alphabetical order: 12
NSW Trustee means the NSW Trustee and Guardian constituted 13
under the NSW Trustee and Guardian Act 2009. 14
[3] Sections 7 (1) (a) and (2), 15, 18 (2) (a) (ii), 19 (2)-(4), 20 (1), 24 (1), (2), (4) 15
and (5), 25 (1), 28 (2), 37 and 38 (2) 16
Omit "Public Trustee" wherever occurring. Insert instead "NSW Trustee". 17
[4] Section 19 If New South Wales authority is asked to assume jurisdiction 18
Omit "Public Trustee Act 1913" from section 19 (3) (a). 19
Insert instead "NSW Trustee and Guardian Act 2009". 20
[5] Sections 31 and 38 (2) 21
Omit "Public Trustee's" wherever occurring. Insert instead "NSW Trustee's". 22
[6] Section 33 Obligation to inform competent authority about serious 23
danger to child 24
Omit "Public Trustee appointed under section 10 of the Public Trustee Act 25
1913" from paragraph (b) of the definition of New South Wales authority in 26
section 33 (5). 27
Insert instead "NSW Trustee". 28
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NSW Trustee and Guardian Bill 2009
Schedule 2 Amendment of other Acts
[7] Section 38 Delegation 1
Omit the definition of Public Trustee's powers from section 38 (3). 2
Insert instead: 3
NSW Trustee's powers means the powers the NSW Trustee may 4
or must exercise under this Act. 5
2.8 Civil Liability Act 2002 No 22 6
[1] Section 23 Court required to inform parties of proposed award 7
Omit "Protective Commissioner under the Protected Estates Act 1983" from 8
section 23 (3). 9
Insert instead "NSW Trustee and Guardian". 10
[2] Sections 23 (5) and 54F 11
Omit "Protected Estates Act 1983" wherever occurring. 12
Insert instead "NSW Trustee and Guardian Act 2009". 13
[3] Sections 26J (3A)-(5), 26L (1), 26Q (5) (b), 26R (3) and (4) (b), 26S, 54D (1), 14
(2) and (6), 54E (1) and (3), 54G (1) and 54H 15
Omit "Public Trustee" wherever occurring. 16
Insert instead "NSW Trustee and Guardian". 17
[4] Section 26J Authority for deduction from damages 18
Omit "Public Trustee Act 1913" from section 26J (3B) (b). 19
Insert instead "NSW Trustee and Guardian Act 2009". 20
[5] Sections 26J (3C), 54G (1) and 54H 21
Omit "Public Trustee's" wherever occurring. 22
Insert instead "NSW Trustee and Guardian's". 23
[6] Section 26V Protection from liability 24
Omit "Public Trustee" wherever occurring in paragraph (b) of the definition 25
of public official in section 26V (2). 26
Insert instead "NSW Trustee and Guardian". 27
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NSW Trustee and Guardian Bill 2009
Amendment of other Acts Schedule 2
[7] Section 54G Hindering or obstructing NSW Trustee and Guardian 1
Omit the definition of Public Trustee from section 54G (2). Insert instead: 2
NSW Trustee and Guardian includes members of staff and 3
agents of the NSW Trustee and Guardian. 4
[8] Section 54H Evidence of NSW Trustee and Guardian's right to act 5
Omit "referred to in section 50 of the Public Trustee Act 1913" from 6
section 54H. 7
Insert instead "authorised by the Chief Executive Officer of the NSW Trustee 8
and Guardian". 9
2.9 Civil Procedure Act 2005 No 28 10
[1] Section 3 Definitions 11
Omit "Protected Estates Act 1983" from paragraph (d) of the definition of 12
person under legal incapacity in section 3 (1). 13
Insert instead "NSW Trustee and Guardian Act 2009". 14
[2] Section 74 Definitions and application 15
Omit "Protected Estates Act 1983" wherever occurring in the definitions of 16
manager and protected person in section 74 (1). 17
Insert instead "NSW Trustee and Guardian Act 2009". 18
[3] Sections 77 (3) (a) and (4) (a) and 78 19
Omit "Public Trustee" wherever occurring. 20
Insert instead "NSW Trustee and Guardian". 21
2.10 Coal Ownership (Restitution) Act 1990 No 19 22
Section 3 Definitions 23
Omit paragraph (b) of the definition of eligible claimant. Insert instead: 24
(b) if such a person is a protected person within the meaning 25
of the NSW Trustee and Guardian Act 2009--means the 26
manager of the person's estate under that Act, or 27
2.11 Commons Management Act 1989 No 13 28
[1] Schedule 1 Provisions applicable to administrators 29
Omit clause 3 (1) (e). Insert instead: 30
(e) becomes a mentally incapacitated person, or 31
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NSW Trustee and Guardian Bill 2009
Schedule 2 Amendment of other Acts
[2] Schedule 2 Provisions relating to the members of a trust board 1
Omit clause 3 (1) (g). Insert instead: 2
(g) becomes a mentally incapacitated person, or 3
2.12 Community Welfare Act 1987 No 52 4
[1] Section 42 Investment of Community Disaster Relief Fund 5
Omit "Public Trustee" from section 42 (2). 6
Insert instead "NSW Trustee and Guardian". 7
[2] Schedule 1 Constitution of certain councils 8
Omit clause 11 (d). Insert instead: 9
(d) becomes a mentally incapacitated person, or 10
2.13 Confiscation of Proceeds of Crime Act 1989 No 90 11
[1] Sections 42M (2) (b) and (4) (b), 42T, 43 (2) (d), 45 (1) (e) and (3) (c), 46 (1) 12
and (2), 47 (1), (2), (4), (5) and (6), 48 (2) (c) (iii) and (4) (a), 51 (1), 51A, 13
52 (1)-(3), 53, 57 (1), 83 (4) (a) and 84 14
Omit "Public Trustee" wherever occurring. 15
Insert instead "NSW Trustee and Guardian". 16
[2] Sections 47 (4) (a) and 57 (1) 17
Omit "Public Trustee's" wherever occurring. 18
Insert instead "NSW Trustee and Guardian's". 19
[3] Sections 51 (2) and 52 (4) 20
Omit the definition of Public Trustee wherever occurring. Insert instead: 21
NSW Trustee and Guardian includes staff and agents of the 22
NSW Trustee and Guardian. 23
[4] Section 52 Protection of NSW Trustee and Guardian and Commissioner 24
of Police from liability in certain cases 25
Omit "Section 45 of the Public Trustee Act 1913" from section 52 (1). 26
Insert instead "Section 121 of the NSW Trustee and Guardian Act 2009". 27
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NSW Trustee and Guardian Bill 2009
Amendment of other Acts Schedule 2
[5] Section 57 Certificate by NSW Trustee and Guardian or Commissioner of 1
Police 2
Omit "referred to in section 50 of the Public Trustee Act 1913" from 3
section 57 (1). 4
Insert instead "authorised by the Chief Executive Officer of the NSW Trustee 5
and Guardian". 6
2.14 Consumer, Trader and Tenancy Tribunal Act 2001 No 82 7
[1] Section 25 Notice of proceedings 8
Omit "Protected Estates Act 1983" from section 25 (3) (a). 9
Insert instead "NSW Trustee and Guardian Act 2009". 10
[2] Section 25 (3) 11
Omit "Protective Commissioner". 12
Insert instead "NSW Trustee and Guardian". 13
2.15 Conveyancing Act 1919 No 6 14
[1] Section 7 Definitions 15
Omit "public trustee" from the definition of Administrator in section 7 (1). 16
Insert instead "NSW Trustee and Guardian". 17
[2] Section 7 (1), definition of "Trust corporation" 18
Omit "Public Trustee". 19
Insert instead "NSW Trustee and Guardian". 20
[3] Section 23G Exceptions to sec 23F 21
Omit "section 24 of the Protected Estates Act 1983" from section 23G (i). 22
Insert instead "the NSW Trustee and Guardian Act 2009". 23
[4] Sections 99A (3) and (4) and 155 (2) 24
Omit "Public Trustee" wherever occurring. 25
Insert instead "NSW Trustee and Guardian". 26
[5] Section 155 Partial repeal of 1900 No 38, sec 4 27
Omit "Public Trustee Act 1913" from section 155 (2). 28
Insert instead "NSW Trustee and Guardian Act 2009". 29
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NSW Trustee and Guardian Bill 2009
Schedule 2 Amendment of other Acts
2.16 Crimes Act 1900 No 40 1
Section 249E Corrupt benefits for trustees and others 2
Omit section 249E (1) (d). Insert instead: 3
(d) a person managing or administering the property (or 4
appointed or employed to manage or administer the 5
property) under the NSW Trustee and Guardian Act 2009. 6
2.17 Criminal Assets Recovery Act 1990 No 23 7
[1] Sections 10 (4), 12 (1) (c1) and (d) and (2) (c), 13A (4) and (5), 14 (1), 17 8
(1), (2) and (4), 18 (1)-(4), 19, 21, 23 (1) and (2), 30 (1), (2), (4), (5) and (7), 9
31 (4), 32 (3) (a1), 52G (5) (a) and 52H 10
Omit "Public Trustee" wherever occurring. 11
Insert instead "NSW Trustee and Guardian". 12
[2] Sections 18 (1), 21 and 30 (4) (a) 13
Omit "Public Trustee's" wherever occurring. 14
Insert instead "NSW Trustee and Guardian's". 15
[3] Section 18 Protection of NSW Trustee and Guardian 16
Omit "Section 45 of the Public Trustee Act 1913" from section 18 (2). 17
Insert instead "Section 121 of the NSW Trustee and Guardian Act 2009". 18
[4] Section 18 (5), definition of "Public Trustee" 19
Omit the definition. Insert instead: 20
NSW Trustee and Guardian includes staff and agents of the 21
NSW Trustee and Guardian. 22
[5] Section 21 Certificate by NSW Trustee and Guardian 23
Omit "referred to in section 50 of the Public Trustee Act 1913". 24
Insert instead "authorised by the Chief Executive Officer of the NSW Trustee 25
and Guardian". 26
2.18 Crown Lands Act 1989 No 6 27
[1] Schedule 1 Members of local land boards 28
Omit clause 4 (1) (d). Insert instead: 29
(d) becomes a mentally incapacitated person, 30
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NSW Trustee and Guardian Bill 2009
Amendment of other Acts Schedule 2
[2] Schedule 3 Provisions relating to the members of a trust board 1
Omit clause 6 (1) (g). Insert instead: 2
(g) becomes a mentally incapacitated person, 3
2.19 Defamation Act 2005 No 77 4
Schedule 1 Additional publications to which absolute privilege applies 5
Omit "Protective Commissioner under section 79 of the Protected Estates Act 6
1983" from clause 24. 7
Insert instead "NSW Trustee and Guardian under section 123 of the NSW 8
Trustee and Guardian Act 2009". 9
2.20 Director of Public Prosecutions Act 1986 No 207 10
Schedule 1 Provisions relating to Senior Officers 11
Omit clause 4 (2) (c). Insert instead: 12
(c) becomes a mentally incapacitated person, 13
2.21 Dormant Funds Act 1942 No 25 14
[1] Section 4 Commissioner of Dormant Funds 15
Omit "Public Trustee" from section 4 (2). 16
Insert instead "Chief Executive Officer of the NSW Trustee and Guardian". 17
[2] Section 11 Proposals for application of dormant fund 18
Omit "Public Trustee" from section 11 (2). 19
Insert instead "NSW Trustee and Guardian". 20
2.22 Duties Act 1997 No 123 21
Section 54 Change in trustees 22
Omit "Public Trustee" wherever occurring in paragraphs (a) and (c) of the 23
definition of special trustee in section 54 (1). 24
Insert instead "NSW Trustee and Guardian". 25
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Schedule 2 Amendment of other Acts
2.23 Education Act 1990 No 8 1
[1] Section 63A Board to be notified of certain matters 2
Omit "Protected Estates Act 1983--the Protective Commissioner" from 3
section 63A (2) (b). 4
Insert instead "NSW Trustee and Guardian Act 2009--the NSW Trustee and 5
Guardian". 6
[2] Schedule 1 Provisions relating to members and procedure of the Board 7
of Studies 8
Omit clause 9 (1) (g). Insert instead: 9
(g) becomes a mentally incapacitated person, or 10
2.24 Entertainment Industry Act 1989 No 230 11
Schedule 1 Provisions relating to the members, staff and procedure of 12
the Council 13
Omit clause 5 (1) (g). Insert instead: 14
(g) becomes a mentally incapacitated person, or 15
2.25 Exhibited Animals Protection Act 1986 No 123 16
Schedule 1 Provisions relating to the members of the advisory 17
committee 18
Omit clause 6 (1) (d). Insert instead: 19
(d) becomes a mentally incapacitated person, 20
2.26 Fire Brigades Act 1989 No 192 21
Schedule 2 Provisions relating to members and procedure of Council 22
Omit clause 5 (1) (g). Insert instead: 23
(g) becomes a mentally incapacitated person, or 24
2.27 Guardianship Act 1987 No 257 25
[1] Section 3 Definitions 26
Omit the definition of Protective Commissioner from section 3 (1). 27
Insert instead in alphabetical order: 28
NSW Trustee means the NSW Trustee and Guardian constituted 29
under the NSW Trustee and Guardian Act 2009. 30
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NSW Trustee and Guardian Bill 2009
Amendment of other Acts Schedule 2
[2] Sections 3F (5) (f) and (7) (f), 25I (1) (a), 25R (b) and 25S (1) (b) (i) and (2) 1
Omit "Protective Commissioner" wherever occurring. 2
Insert instead "NSW Trustee". 3
[3] Sections 25E (1) and 25K (2) 4
Omit "Protected Estates Act 1983" wherever occurring. 5
Insert instead "NSW Trustee and Guardian Act 2009". 6
[4] Section 25E Tribunal may make financial management orders 7
Omit section 25E (3). 8
[5] Section 25M Tribunal may commit estate of protected person to 9
management 10
Omit "Protective Commissioner" wherever occurring. 11
Insert instead "NSW Trustee". 12
[6] Section 25M (1), note 13
Omit the note. 14
[7] Section 25M (2) (b) 15
Omit "section 30 (3) of the Protected Estates Act 1983". 16
Insert instead "Division 2 of Part 4.5 of the NSW Trustee and Guardian Act 17
2009". 18
[8] Section 77 19
Omit the section. Insert instead: 20
77 Public Guardian 21
(1) There is to be a Public Guardian. 22
(2) The Public Guardian is to be the person holding office as such 23
under Chapter 1A of the Public Sector Employment and 24
Management Act 2002. 25
(3) The Public Guardian has the functions conferred or imposed on 26
the Public Guardian by or under this or any other law. 27
(4) The Public Guardian may delegate to a person, of a class of 28
persons approved by the Minister or prescribed by the 29
regulations, any of the Public Guardian's functions, other than 30
this power of delegation. 31
Page 73
NSW Trustee and Guardian Bill 2009
Schedule 2 Amendment of other Acts
[9] Schedule 3 Savings and transitional provisions 1
Insert at the end of clause 1 (1): 2
NSW Trustee and Guardian Act 2009 3
2.28 Imperial Acts Application Act 1969 No 30 4
Section 12 Definitions 5
Omit "Public Trustee" from the definition of Administration. 6
Insert instead "NSW Trustee and Guardian". 7
2.29 Independent Commission Against Corruption Act 1988 8
No 35 9
Schedule 1 Provisions relating to Commissioner and Assistant 10
Commissioners 11
Omit clause 6 (1) (h). Insert instead: 12
(h) becomes a mentally incapacitated person, or 13
2.30 Interpretation Act 1987 No 15 14
Section 21 Meanings of commonly used words and expressions 15
Omit "Protected Estates Act 1983" from the definition of mentally 16
incapacitated person in section 21 (1). 17
Insert instead "NSW Trustee and Guardian Act 2009". 18
2.31 Judicial Officers Act 1986 No 100 19
Schedule 1 Provisions relating to the appointed members of the 20
Commission 21
Omit clause 5 (1) (d). Insert instead: 22
(d) becomes a mentally incapacitated person, 23
2.32 Lake Illawarra Authority Act 1987 No 285 24
Schedule 3 Provisions relating to members of the Authority 25
Omit clause 6 (1) (h). Insert instead: 26
(h) becomes a mentally incapacitated person, or 27
Page 74
NSW Trustee and Guardian Bill 2009
Amendment of other Acts Schedule 2
2.33 Land Tax Management Act 1956 No 26 1
Section 3 Definitions 2
Omit "Public Trustee" from the definition of Trustee company in section 3
3 (1). 4
Insert instead "NSW Trustee and Guardian". 5
2.34 Landlord and Tenant (Amendment) Act 1948 No 25 6
Section 83B NSW Trustee and Guardian's title not a defence to recovery 7
of possession of prescribed premises after death of lessee in certain 8
cases 9
Omit "Public Trustee". Insert instead "NSW Trustee and Guardian". 10
2.35 Limitation Act 1969 No 31 11
[1] Section 11 Definitions 12
Omit "Public Trustee acting under section 23 of the Public Trustee Act 1913" 13
from the definition of Personal representative in section 11 (1). 14
Insert instead "NSW Trustee and Guardian acting under section 25 of the NSW 15
Trustee and Guardian Act 2009". 16
[2] Section 50F Effect of disability on limitation period 17
Omit "Protected Estates Act 1983" wherever occurring in paragraph (b) of the 18
definition of protected person in section 50F (4). 19
Insert instead "NSW Trustee and Guardian Act 2009". 20
2.36 Liquor Act 2007 No 90 21
Sections 62 (5) and 64 (3) 22
Omit "Protective Commissioner" wherever occurring. 23
Insert instead "NSW Trustee and Guardian". 24
2.37 Mental Health Act 2007 No 8 25
Schedule 3 Statement of rights 26
Omit "Protected Estates Act 1983". 27
Insert instead "NSW Trustee and Guardian Act 2009". 28
Page 75
NSW Trustee and Guardian Bill 2009
Schedule 2 Amendment of other Acts
2.38 Minors (Property and Contracts) Act 1970 No 60 1
Sections 28 (2) (b) (ii) and 29 (2) (b) (ii) 2
Omit "Public Trustee" wherever occurring. 3
Insert instead "NSW Trustee and Guardian". 4
2.39 Moratorium Act 1932 No 57 5
Sections 22 (1) and (5) and 46B 6
Omit "Public Trustee" wherever occurring. 7
Insert instead "NSW Trustee and Guardian". 8
2.40 National Parks and Wildlife Act 1974 No 80 9
Schedule 8A Marine Mammals Advisory Committee 10
Omit clause 4 (c). Insert instead: 11
(c) becomes a mentally incapacitated person, or 12
2.41 Non-Indigenous Animals Act 1987 No 166 13
Schedule 1 Provisions relating to the members of the advisory 14
committee 15
Omit clause 6 (1) (d). Insert instead: 16
(d) becomes a mentally incapacitated person, 17
2.42 Parliamentary Remuneration Act 1989 No 160 18
Schedule 2 Parliamentary Remuneration Tribunal 19
Omit clause 4 (1) (e). Insert instead: 20
(e) becomes a mentally incapacitated person, or 21
2.43 Parramatta Stadium Trust Act 1988 No 86 22
Schedule 1 Provisions relating to the trustees 23
Omit clause 7 (d). Insert instead: 24
(d) if the trustee becomes a mentally incapacitated person, or 25
Page 76
NSW Trustee and Guardian Bill 2009
Amendment of other Acts Schedule 2
2.44 Poisons and Therapeutic Goods Act 1966 No 31 1
Schedule 1 Provisions relating to the members of the Advisory 2
Committee 3
Omit clause 6 (1) (g). Insert instead: 4
(g) becomes a mentally incapacitated person, or 5
2.45 Police Regulation (Superannuation) Act 1906 No 28 6
Schedule 4 Provisions relating to members and procedure of the Police 7
Superannuation Advisory Committee 8
Omit clause 5 (1) (f). Insert instead: 9
(f) becomes a mentally incapacitated person, or 10
2.46 Powers of Attorney Act 2003 No 53 11
[1] Section 3 Definitions 12
Omit "section 76 of the Protected Estates Act 1983" from section 3 (3) (b). 13
Insert instead "section 50". 14
[2] Section 16 Effect of irrevocable powers of attorney 15
Omit section 16 (1) (d) and (d1). Insert instead: 16
(d) the principal becoming a mentally incapacitated person, 17
(d1) the principal becoming a person who is a managed missing 18
person within the meaning of the NSW Trustee and 19
Guardian Act 2009, 20
[3] Section 19 Creation of enduring power of attorney 21
Omit "Public Trustee" from paragraph (c) of the definition of prescribed 22
witness in section 19 (2). 23
Insert instead "NSW Trustee and Guardian". 24
[4] Section 22 Effect of ademptions of testamentary gifts by attorney under 25
enduring power of attorney 26
Omit "section 48 of the Protected Estates Act 1983" from section 22 (7). 27
Insert instead "section 83 of the NSW Trustee and Guardian Act 2009". 28
Page 77
NSW Trustee and Guardian Bill 2009
Schedule 2 Amendment of other Acts
[5] Section 37 Review Tribunal may treat certain applications for review of 1
power of attorney as application for management order 2
Omit "section 13 (Declaration and order where person incapable of managing 3
affairs) of the Protected Estates Act 1983" from section 37 (3). 4
Insert instead "section 41 of the NSW Trustee and Guardian Act 2009". 5
[6] Section 50 6
Omit the section. Insert instead: 7
50 Effect of management of estate 8
(1) A power of attorney is not terminated by the estate of the 9
principal becoming subject to management under the NSW 10
Trustee and Guardian Act 2009 (a managed estate). 11
(2) Subsection (1) has effect subject to the terms of the instrument 12
creating the power. 13
(3) A power of attorney is suspended while the estate of the principal 14
is a managed estate. 15
(4) Despite subsection (3), if the Guardianship Tribunal, in making a 16
financial management order under section 25E of the 17
Guardianship Act 1987 in relation to a principal, excludes a 18
specified part of the principal's estate from the order, the 19
Guardianship Tribunal may order that the power of attorney is to 20
remain in force in respect of so much of the estate as is excluded 21
from the financial management order concerned. 22
(5) The Guardianship Tribunal may make a similar order in respect 23
of so much of the estate of the principal as is not managed estate, 24
but only if the estate is a managed estate because of a financial 25
management order made by the Guardianship Tribunal. 26
(6) Despite subsection (3), where an attorney under a power of 27
attorney does an act within the scope of the power while the estate 28
of the principal is a managed estate, the act of the attorney has no 29
less validity and effect than the act of the attorney would have had 30
if this section had not been enacted, but this subsection does not 31
affect the operation of subsection (9). 32
(7) While a power of attorney is suspended by this section, the 33
Supreme Court may restore the power of attorney to operation to 34
such extent, and on such terms and conditions, as the Supreme 35
Court thinks fit. 36
Page 78
NSW Trustee and Guardian Bill 2009
Amendment of other Acts Schedule 2
(8) The Supreme Court may restore a power of attorney to operation 1
under subsection (7) as from any time whether before or after the 2
order of restoration is made or takes effect. 3
(9) If the estate of a principal is a managed estate, the Supreme Court 4
may: 5
(a) terminate the power of attorney, or 6
(b) order that the power of attorney be subject to such 7
conditions as the Court thinks fit. 8
(10) An attorney under a power of attorney and persons dealing with 9
the attorney and all other persons have the like protections 10
against any term or condition of any restoration of the power and 11
against any condition or restriction to which the power is subject 12
under this section as if the term, condition or restriction were 13
effected by act of the principal. 14
(11) The estate of a person whose estate is subject to management 15
under Division 2 of Part 4.3 of the NSW Trustee and Guardian 16
Act 2009 is taken to be a managed estate for the purposes of this 17
section for the life of the person or until the Supreme Court 18
declares that the exercise of the powers of the NSW Trustee and 19
Guardian in relation to the estate is not required. An application 20
to the Court for a declaration may be made by the NSW Trustee 21
and Guardian, the person whose power of attorney is in question 22
or an attorney under the power of attorney. 23
(12) A declaration for the purposes of subsection (11) has no effect 24
otherwise than for the purpose of subsection (11). 25
(13) This section does not apply to a power of attorney given before 26
the commencement of Schedule 1 to the Conveyancing (Powers 27
of Attorney) Amendment Act 1983. 28
(14) This section has effect subject to Part 3. 29
[7] Schedule 2 Form for prescribed power of attorney 30
Omit "*Public Trustee employee,". 31
Insert instead "*NSW Trustee and Guardian employee,". 32
[8] Schedule 2 33
Omit "Public Trustee (www.pt.nsw.gov.au)". 34
Insert instead "NSW Trustee and Guardian". 35
Page 79
NSW Trustee and Guardian Bill 2009
Schedule 2 Amendment of other Acts
2.47 Probate and Administration Act 1898 No 13 1
[1] Section 3 Definitions 2
Omit "Public Trustee" from the definition of Administrator. 3
Insert instead "NSW Trustee". 4
[2] Section 3 5
Insert in alphabetical order: 6
NSW Trustee means the NSW Trustee and Guardian constituted 7
under the NSW Trustee and Guardian Act 2009. 8
[3] Sections 61, 64 (2), 75 (1), 75A (1) and (2), 76, 89 (1), 104 (1) (d) and 110 9
Omit "Public Trustee" wherever occurring. Insert instead "NSW Trustee". 10
[4] Section 85 Executor, administrator or trustee to pass accounts 11
Omit "section 35A of the Public Trustee Act 1913" from section 85 (1A). 12
Insert instead "section 32 of the NSW Trustee and Guardian Act 2009". 13
[5] Section 93 Claims barred against executor or administrator in certain 14
cases 15
Insert "the NSW Trustee or" before "a trustee company" in section 93 (3), (4) 16
and (6) wherever occurring. 17
[6] Section 93 (3) and (4) 18
Insert "the NSW Trustee or" before "the trustee company" wherever 19
occurring. 20
[7] Section 93 (5) 21
Omit "A". Insert instead "The NSW Trustee or a". 22
2.48 Property, Stock and Business Agents Act 2002 No 66 23
[1] Section 5 Exemptions from Act 24
Omit "Public Trustee, the Protective Commissioner" from section 5 (1) (f). 25
Insert instead "NSW Trustee and Guardian". 26
[2] Section 5 (1) (f) 27
Omit "Protected Estates Act 1983". 28
Insert instead "NSW Trustee and Guardian Act 2009". 29
Page 80
NSW Trustee and Guardian Bill 2009
Amendment of other Acts Schedule 2
2.49 Public Finance and Audit Act 1983 No 152 1
[1] Schedule 2 Statutory bodies 2
Omit "Protective Commissioner". 3
Insert instead in alphabetical order "NSW Trustee and Guardian". 4
[2] Schedule 2 5
Omit "Public Trustee". 6
2.50 Public Sector Employment and Management Act 2002 No 43 7
Schedule 2 Executive provisions (other than non-statutory SES 8
positions) 9
Insert in appropriate order in Part 3: 10
Chief Executive Officer of the NSW Trustee and Guardian 11
2.51 Real Property Act 1900 No 25 12
[1] Section 61 Application for foreclosure order 13
Omit "Public Trustee" wherever occurring in section 61 (2A) (a) and (b). 14
Insert instead "NSW Trustee and Guardian". 15
[2] Section 74M Withdrawal of caveats 16
Omit "protected missing person within the meaning of the Protected Estates 17
Act 1983" from section 74M (1) (g). 18
Insert instead "managed missing person within the meaning of the NSW 19
Trustee and Guardian Act 2009". 20
[3] Section 74M (1) (g) 21
Omit "Protective Commissioner". 22
Insert instead "NSW Trustee and Guardian". 23
2.52 Retirement Villages Act 1999 No 81 24
[1] Section 75 Attendance at meetings of residents 25
Omit "Protected Estates Act 1983" from section 75 (3) (b). 26
Insert instead "NSW Trustee and Guardian Act 2009". 27
Page 81
NSW Trustee and Guardian Bill 2009
Schedule 2 Amendment of other Acts
[2] Section 75 (3) (b) 1
Omit "Protective Commissioner" wherever occurring. 2
Insert instead "NSW Trustee and Guardian". 3
2.53 Rural Assistance Act 1989 No 97 4
Schedule 1 Constitution and procedure of New South Wales Rural 5
Assistance Authority Board 6
Omit clause 6 (1) (g). Insert instead: 7
(g) becomes a mentally incapacitated person, or 8
2.54 Sporting Injuries Insurance Act 1978 No 141 9
Section 28 Administration of amounts payable to minors 10
Omit "Public Trustee" wherever occurring. 11
Insert instead "NSW Trustee and Guardian". 12
2.55 Statutory and Other Offices Remuneration Act 1975 (1976 13
No 4) 14
Schedule 2 Public offices 15
Omit "Public Trustee" from Part 1. 16
2.56 Stewards' Foundation of Christian Brethren Act 1989 No 172 17
Schedule 1 Members of the Foundation 18
Omit clause 4 (e). Insert instead: 19
(e) becomes a mentally incapacitated person, or 20
2.57 Succession Act 2006 No 80 21
[1] Section 12 Effect of marriage on a will 22
Omit "Public Trustee" from section 12 (2) (c). 23
Insert instead "NSW Trustee and Guardian". 24
[2] Section 54 Persons entitled to inspect will of deceased person 25
Omit "Protected Estates Act 1983" from section 54 (2) (h). 26
Insert instead "NSW Trustee and Guardian Act 2009". 27
Page 82
NSW Trustee and Guardian Bill 2009
Amendment of other Acts Schedule 2
[3] Section 55 Interpretation 1
Omit "section 18 (2) or 23 (1) of the Public Trustee Act 1913" from section 2
55 (1) (c). 3
Insert instead "section 24 or 25 of the NSW Trustee and Guardian Act 2009". 4
[4] Section 55 (1) (d) 5
Omit "Public Trustee under section 18A of the Public Trustee Act 1913". 6
Insert instead "NSW Trustee and Guardian under Division 1 of Part 3.2 of the 7
NSW Trustee and Guardian Act 2009". 8
[5] Section 55 (1) (e) 9
Omit "section 15A". Insert instead "section 15A or 15AA". 10
2.58 Treasury Corporation Act 1983 No 75 11
[1] Schedule 1 The Chief Executive 12
Omit clause 6 (1) (h). Insert instead: 13
(h) becomes a mentally incapacitated person, 14
[2] Schedule 3 Provisions relating to the members of the Board 15
Omit clause 6 (1) (h). Insert instead: 16
(h) becomes a mentally incapacitated person, or 17
2.59 Trustee Act 1925 No 14 18
[1] Section 5 Definitions 19
Omit "public trustee" from the definitions of Administrator and Trustee 20
wherever occurring. 21
Insert instead "NSW Trustee". 22
[2] Section 5 23
Insert in alphabetical order: 24
NSW Trustee means the NSW Trustee and Guardian constituted 25
under the NSW Trustee and Guardian Act 2009. 26
[3] Sections 6 (6), 7 (2), 8 (2), 10 (2), 45A (1), 47 (1)-(3), 51 (4), 64 (2) and (5), 27
65 (1) and 82A (1A) (b) 28
Omit "public trustee" wherever occurring. Insert instead "NSW Trustee". 29
Page 83
NSW Trustee and Guardian Bill 2009
Schedule 2 Amendment of other Acts
[4] Sections 14E (2) (a), 54 (1), 82A (1A) (a) and 101 1
Omit "Public Trustee" wherever occurring. Insert instead "NSW Trustee". 2
[5] Section 47 Payment to NSW Trustee or trustee company 3
Omit "public trustee's" from section 47 (3). Insert instead "NSW Trustee's". 4
2.60 Trustee Companies Act 1964 No 6 5
Sections 15A-15AD 6
Omit section 15A. Insert instead: 7
15A Election to administer where no previous executor or 8
administrator 9
(1) A trustee company may file an election to administer the estate of 10
a deceased person who died testate or intestate in the registry of 11
the Court, instead of applying for probate or administration, if: 12
(a) the gross value of the estate in New South Wales, as 13
estimated by the trustee company, is less than the amount 14
prescribed by the regulations for the purposes of this 15
section, and 16
(b) no person has obtained probate of the estate or taken out 17
administration, and 18
(c) the trustee company is entitled to obtain probate or 19
administration. 20
(2) An election must be sealed by the trustee company and must set 21
out: 22
(a) the name, residence and occupation (as far as it is known 23
to the trustee company) of the deceased person, and 24
(b) particulars of property forming the deceased person's 25
estate, and 26
(c) the date of the deceased person's death as then known to 27
the trustee company, and 28
(d) if the deceased person died testate, state that, after due 29
inquiries, the trustee company believes that the document 30
annexed to the election is the testator's last will and that 31
the will has been validly executed according to the law 32
governing the execution of wills. 33
(3) On an election being filed, the trustee company is taken to have 34
been appointed by the Court as the executor of the estate or the 35
administrator of the estate. 36
Page 84
NSW Trustee and Guardian Bill 2009
Amendment of other Acts Schedule 2
15AA Election to administer where previous executor or administrator 1
(1) A trustee company may file an election to administer the 2
unadministered property of the estate of a deceased person who 3
died testate or intestate in the registry of the Court, instead of 4
taking out administration de bonis non, if: 5
(a) the executor or administrator of the estate has died and no 6
other person has taken out administration de bonis non in 7
respect of the estate, and 8
(b) part of the estate is unadministered, and 9
(c) the gross value of the unadministered part of the estate in 10
New South Wales is less than the amount prescribed by the 11
regulations for the purposes of this section, and 12
(d) the trustee company is entitled to take out administration 13
de bonis non. 14
(2) An election must be sealed by the trustee company and must set 15
out: 16
(a) the fact of the original grant, and 17
(b) the fact of the death of the executor or administrator, and 18
(c) particulars of the property left unadministered. 19
(3) On an election being filed, the trustee company is taken to have 20
been appointed by the Court as the administrator de bonis non of 21
the unadministered part of the estate. 22
15AB Estate not small estate 23
(1) If, after an election takes effect under section 15A or 15AA, the 24
trustee company becomes aware that the gross value of the estate 25
or the unadministered estate exceeds the amount prescribed for 26
the purposes of making an election, the trustee company must file 27
a notice to that effect in the registry of the Court. 28
(2) The trustee company is not entitled to continue to administer the 29
estate but must obtain probate or administration in the ordinary 30
manner. 31
15AC Discovery of later will 32
(1) If, after an election takes effect under section 15A or 15AA, a 33
later will, or a will, is found, the trustee company must file a 34
notice to that effect in the registry of the Court. 35
Page 85
NSW Trustee and Guardian Bill 2009
Schedule 2 Amendment of other Acts
(2) On filing the notice, the trustee company ceases to be the 1
executor or administrator of the estate and may, if it is otherwise 2
entitled to do so, obtain probate or administration in the ordinary 3
manner or make a new election under section 15A or 15AA. 4
(3) If the trustee company does not obtain probate or letters of 5
administration or make a new election, the Probate and 6
Administration Act 1898 applies as if a grant of probate or 7
administration to the trustee company had been revoked. 8
15AD Notice and form of elections and notices 9
(1) A trustee company must publish, in accordance with the 10
regulations, notice of an election made by it under section 15A or 11
15AA or notice filed under section 15AB. 12
(2) An election under section 15A or 15AA or a notice under section 13
15AB is to be in the form (if any) prescribed by the rules of the 14
Court and to contain the particulars prescribed by the regulations. 15
(3) A notice that complies with this section is evidence that the 16
trustee company is entitled to administer an estate. 17
2.61 Victims Support and Rehabilitation Act 1996 No 115 18
Section 69 Payments from Compensation Fund 19
Omit "Public Trustee" from section 69 (c1). 20
Insert instead "NSW Trustee and Guardian". 21
2.62 Warehousemen's Liens Act 1935 No 19 22
Section 8 Disposition of proceeds of sale 23
Omit "Public Trustee" wherever occurring in section 8 (2)-(4). 24
Insert instead "NSW Trustee and Guardian". 25
2.63 Wollongong Sportsground Act 1986 No 174 26
Schedule 2 Provisions relating to the members of the Trust 27
Omit clause 5 (1) (d). Insert instead: 28
(d) becomes a mentally incapacitated person, 29
Page 86
NSW Trustee and Guardian Bill 2009
Schedule 2 Amendment of other Acts
2.64 Workers Compensation Act 1987 No 70 1
[1] Section 3 Definitions 2
Insert in alphabetical order in section 3 (1): 3
NSW Trustee means the NSW Trustee and Guardian constituted 4
under the NSW Trustee and Guardian Act 2009. 5
[2] Sections 29 (1) and (2)-(5), 30, 31 (1) (b), 83 (7), 85 (1)-(3) and (5)-(8), 86 6
and 87 (1) 7
Omit "Public Trustee" wherever occurring. Insert instead "NSW Trustee". 8
[3] Section 86 NSW Trustee's powers of investment 9
Omit "the common fund under section 36A of the Public Trustee Act 1913" 10
from section 86 (1). 11
Insert instead "a common fund established under the NSW Trustee and 12
Guardian Act 2009". 13
[4] Section 86 (2) 14
Omit "Public Trustee Act 1913". 15
Insert instead "NSW Trustee and Guardian Act 2009". 16
2.65 Youth Advisory Council Act 1989 No 39 17
Schedule 1 Provisions relating to members of Council 18
Omit clause 5 (1) (g). Insert instead: 19
(g) becomes a mentally incapacitated person, or 20
Page 87
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