New South Wales Bills Explanatory Notes New South Wales Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
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.
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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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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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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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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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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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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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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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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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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.
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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
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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.
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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.
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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
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(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 16
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.
Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.