New South Wales: NSW Trustee and Guardian Act 2009 (NSW)

NSW Trustee and Guardian Act 2009 No 49 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. Chapter 1 Preliminary 1 Name of Act This Act is the NSW Trustee and Guardian Act 2009. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— adult means an individual who is aged 18 years or over. Chief Executive Officer means the Chief Executive Officer of the NSW Trustee. common fund—see section 104. costs includes fees, charges, commission, disbursements, expenses and remuneration. Director-General means the Director-General of the Attorney General's Department. exercise a function includes perform a duty. function includes a power, authority or duty. legal representative has the same meaning as it has in the Succession Act 2006. managed missing person—see section 38. managed person—see section 38. management of a trust matter includes administration of an estate. manager—see section 38. MHRT means the Mental Health Review Tribunal constituted under the Mental Health Act 2007. mortgage includes a charge. NSW Trustee and Guardian or NSW Trustee means the NSW Trustee and Guardian constituted by this Act. operational funds means funds of or under the control of the NSW Trustee that are not trust funds or protective funds. patient—see section 38. protected person—see section 38. protective capacity means a capacity exercised by the NSW Trustee under this Act in relation to managed persons or the management of their estates. protective funds means funds of the NSW Trustee that the NSW Trustee holds in any protective capacity. Reserve Fund means the Fund established under section 109. spouse means— (a) the person to whom a person is legally married (including the husband or wife of a person), or (b) the other party to a de facto relationship, in which the parties have cohabited for a period of not less than 2 years, but where more than one person would so qualify as a spouse, means only the last person to so qualify. Note— "De facto relationship" is defined in section 21C of the Interpretation Act 1987. trust capacity means any of the capacities specified in section 11 (1). trust funds means funds of the NSW Trustee that the NSW Trustee holds in any trust capacity. trust instrument means the will, settlement or other instrument (if any) establishing or regulating the trust or other arrangement giving rise to a trust capacity or to an appointment to a trust capacity. trust matter means any trust, estate, fund, asset, agency or affairs. (2) Words and expressions used in this Act have the same meaning as they have in the Probate and Administration Act 1898. (3) Notes included in this Act do not form part of this Act. Note— For the purposes of comparison, a number of provisions of this Act contain bracketed notes in headings, drawing attention ("cf") to equivalent or comparable (though not necessarily identical) provisions of other laws. Abbreviations in the notes include PT Act (Public Trustee Act 1913) and PE Act (Protected Estates Act 1983). 4 (Repealed) Chapter 2 Constitution of NSW Trustee Part 2.1 Constitution and management of NSW Trustee 5 Constitution of NSW Trustee and Guardian There is constituted by this Act a corporation with the corporate name of the NSW Trustee and Guardian. Note— In this Act, the NSW Trustee and Guardian is referred to as the NSW Trustee (see section 3 (1)). 6 Status of NSW Trustee The NSW Trustee is a NSW Government agency. 7 Chief Executive Officer (1) The Governor may appoint a Chief Executive Officer of the NSW Trustee. (2) Schedule 3 contains provisions relating to the Chief Executive Officer. (3), (4) (Repealed) (5) The Chief Executive Officer is responsible for the day-to-day management of the affairs of the NSW Trustee. (6) Any act, matter or thing done in the name of, or on behalf of, the NSW Trustee by the Chief Executive Officer is taken to have been done by the NSW Trustee. 8 Acting Chief Executive Officer (1) The Minister may, from time to time, appoint a person to act in the office of the Chief Executive Officer during the illness or absence of the Chief Executive Officer (or during a vacancy in the office of Chief Executive Officer) and a person, while so acting, has all the functions of the Chief Executive Officer. (2) The Minister may, at any time, remove a person from the office of acting Chief Executive Officer. (3) The acting Chief Executive Officer is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine. 9 Delegation (1) The NSW Trustee may delegate to an authorised person any of its functions, other than this power of delegation. (2) The Chief Executive Officer may delegate to an authorised person any of the Chief Executive Officer's functions, other than this power of delegation. (3) A delegate may sub-delegate to an authorised person any function delegated by the NSW Trustee or Chief Executive Officer if the delegate is authorised in writing to do so by the NSW Trustee or Chief Executive Officer. (4) In this section, authorised person means— (a) a member of staff of the NSW Trustee, or (b) a person, or committee of persons, of a class approved by the Minister or prescribed by the regulations. Part 2.2 General functions 10 Functions generally (1) The NSW Trustee has such functions as are conferred or imposed on it by or under this or any other Act. (2) The NSW Trustee may do all such supplemental, incidental or consequential acts as may be necessary or expedient for the exercise of its functions. (3) Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the NSW Trustee to exercise its functions. Note— Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the NSW Trustee makes use of) may be referred to as officers or employees, or members of staff, of the NSW Trustee. Section 47A of the Constitution Act 1902 precludes the NSW Trustee from employing staff. 11 General trustee and other functions (cf PT Act, ss 12 and 13) (1) The NSW Trustee may be appointed to and act in any of the following capacities— (a) trustee, (b) executor or administrator, (c) collector of estates under an order to collect, (d) agent or attorney, (e) guardian or receiver of the estate of a minor, (f) receiver of any other property. (2) The NSW Trustee may be appointed to and act in the capacity of a financial manager of the estate of a managed person. (3) The NSW Trustee may prepare wills and carry out professional services in connection with wills, probate and administration. (3A) The NSW Trustee may prepare instruments that create enduring guardianship appointments and carry out professional services in connection with the preparation of the instruments. (3B) The NSW Trustee may prepare instruments that create powers of attorney and carry out professional services in connection with powers of attorney. (4) The NSW Trustee, if appointed to act in a trust or protective capacity— (a) has the same liabilities, and (b) is entitled to the same rights and immunities, and (c) is subject to the same control and orders of any court, as a private person acting in the same capacity. 12 Appointment as trustee (1) The NSW Trustee may be appointed to be a trustee under a trust instrument as an original, new or additional trustee. (2) The NSW Trustee may be appointed as sole trustee, even though the trustees originally appointed were 2 or more, and despite the provisions of the trust instrument as to the number of trustees. (3) However, the NSW Trustee must not be appointed as trustee if the trust instrument contains a direction to the contrary or prohibits the appointment. 13 Refusal of appointment as trustee or manager (cf PT Act, s 12 (3) and (4)) (1) The NSW Trustee may refuse to act in a trust capacity or may accept subject to conditions. However, the NSW Trustee must not refuse merely on the ground of the small value of the trust property or estate concerned. (2) The NSW Trustee must not accept— (a) any trust under a deed of arrangement for the benefit of creditors, or (b) any trust exclusively for religious purposes, or (c) any trust or trust capacity, if the instrument that creates the trust or duty concerned prohibits the appointment of the NSW Trustee. 14 Court may waive consent requirement for appointment (cf PT Act, s 17) (1) This section applies if a trust instrument requires the consent of a person to the appointment of a trustee. (2) The Supreme Court may direct that consent is not required to the appointment of the NSW Trustee if— (a) the person refuses or fails to consent, or (b) the person is, for any reason, not capable of consenting. 15 Functions exercised jointly (cf PT Act, s 12 (1A)) (1) This section applies if the NSW Trustee jointly accepts a trust or is appointed to act jointly in a trust capacity with another person. (2) The NSW Trustee and the other person jointly have and may exercise the same functions as the NSW Trustee would have and may exercise if the NSW Trustee were acting alone. (3) Any money or other property under the control of the NSW Trustee and the other person must be dealt with in the same manner as money or other property under the sole control of the NSW Trustee. (4) If money or other property is payable, transferable or deliverable to the NSW Trustee and the other person jointly— (a) a written receipt given by the NSW Trustee alone is a sufficient discharge for that payment, transfer or delivery, and (b) any person required to make the payment, transfer or delivery is not required to make it to the other person and is not liable for any subsequent loss or misapplication of the money or property. 16 Powers of NSW Trustee relating to property and other matters (cf PT Act, s 35, PE Act, s 24) (1) The NSW Trustee may exercise the following functions when acting in a trust capacity or protective capacity— (a) receive money, rent, income and profit of real and personal property, (b) grant leases of property for a term not exceeding 10 years and give to a lessee an option of renewal if the aggregate duration of the lease and any such renewal does not exceed 10 years, (c) enter into a share-farming agreement for a period not exceeding 3 years, (d) surrender a lease and accept a new lease, (e) accept a surrender of a lease and grant a new lease, (f) execute a power of leasing vested in a person having a limited estate only in the property over which the power extends, (g) buy, sell, realise and mortgage (with or without a power of sale) real and personal property, Note— Mortgage includes charge (see section 3 (1)). (h) pay interest secured by a mortgage out of capital, if income is insufficient, (i) postpone the sale, calling in and conversion of any property that the NSW Trustee has a duty to sell, other than property that is of a wasting, speculative or reversionary nature, (j) settle, adjust and compromise a demand made by or against the estate, (k) exchange or join in a partition of property and give or receive money for equality of exchange or partition, (l) carry on a business, so far as may appear desirable for the purpose of more advantageously disposing of, or winding up, the business or preserving the business of a managed person until the managed person is able to carry it on, (m) agree to an alteration of the conditions of a partnership into which a managed person has entered, for the purpose of more advantageously disposing of an interest in the partnership or terminating liability, (n) carry out a contract entered into before the appointment of the NSW Trustee or enter into an agreement terminating the liability, (o) surrender, assign or otherwise dispose of, with or without consideration, onerous property, (p) exercise a power, or give a consent required for the exercise of a power, where the power is vested in a managed person for the benefit of the person or the power of consent is in the nature of a beneficial interest in the person, (q) sequestrate the estate under the bankruptcy laws, (r) take proceedings to cause a company to be placed in liquidation and vote or act by proxy at meetings of creditors or shareholders, whether the company is in liquidation or not, (s) bring and defend actions, suits and other proceedings, (t) without limiting paragraph (s), take criminal proceedings touching or concerning property, (u) pay rates, taxes, assessments, insurance premiums, debts, obligations, costs and expenses and other outgoings, (v) without limiting paragraph (u), pay the reasonable costs of the erection of a memorial or a tombstone over the grave of a deceased person or, if a deceased person is cremated, the reasonable costs of a memorial or any arrangements for the preservation of the ashes of the deceased person, (w) repair and insure against fire or accident any property and charge the cost of repairs to capital or income, or apportion the cost between capital and income, as the NSW Trustee considers equitable, (x) bring land under the Real Property Act 1900, (y) do or omit all things, and execute all documents, necessary to carry into effect the functions of the NSW Trustee. (2) The functions conferred by this section are in addition to, and do not restrict, any other functions of the NSW Trustee. 17 Power to use funds for benefit of minors and other incapable persons (cf PT Act, s 34) (1) This section applies if— (a) a minor is entitled to money held by the NSW Trustee or is entitled to any such money contingently on attaining an age specified in an instrument creating the entitlement, or (b) a person (an incapable person) is entitled to money held by the NSW Trustee and is, in its opinion, not capable of giving a good discharge. (2) The NSW Trustee may pay, or pay to any person it thinks fit, amounts of the money to be used for the past or future maintenance, education, advancement or benefit of the minor or incapable person (including the reimbursement of expenses already paid in that connection). (3) The Supreme Court may, on application by the NSW Trustee, give or vary or revoke directions as to the payment or application of money held by the NSW Trustee to or in respect of a minor or incapable person or determine any related manner. (4) Any such direction or determination exonerates the NSW Trustee from any claim or demand from any person at all. (5) The NSW Trustee is not required to see to the application of money paid under this section. 18 Power to pay small amounts of money due to deceased persons (cf PT Act, s 34C) (1) The NSW Trustee may pay an amount payable by the NSW Trustee to a person who has died to another person without requiring administration to be taken out in the estate of the deceased person if— (a) the amount does not exceed the amount prescribed by the regulations for the purposes of this section, and (b) the NSW Trustee considers that the other person is entitled to the amount. (2) A person to whom an amount is paid under this section must apply the money as required by law in the administration of the estate. (3) A payment made by the NSW Trustee under this section is valid against all persons and the NSW Trustee is discharged from all liability in respect of all money so paid by the NSW Trustee. (4) This section does not affect any right of a person to claim or recover money paid under this section from a person other than the NSW Trustee. 19 No bond by NSW Trustee (cf PT Act, s 49) No bond or other security is required from the NSW Trustee before being appointed, by or under this or any other Act, in any trust capacity. 20 Appointment of agents and other persons (1) The NSW Trustee may appoint agents and act as an agent for other persons. (2) The NSW Trustee may appoint a registrar or deputy registrar appointed under the Local Court Act 2007 as an agent of the NSW Trustee. (3) Any such registrar or deputy registrar has, and may exercise, the agency functions which he or she is appointed to exercise. (4) Without limiting subsection (1) or (2), the NSW Trustee may employ another person to transact any business or do any act that is required to be done by it, or to advise or assist it, when exercising its trust or protective capacities. (5) The NSW Trustee is not responsible for any default of any agent so employed. 21 NSW Trustee may sue itself in another capacity (1) The NSW Trustee, acting in one capacity, may maintain proceedings against itself acting in another capacity. (2) However, in any such case the NSW Trustee may apply to the Supreme Court for direction as to the manner in which the opposing interests are to be represented and must comply with the Court's directions. 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 (cf PT Act, s 18 (1)) (1) The Supreme Court may grant— (a) probate of a will, or (b) administration of any estate (whether for general, limited or special purposes), to the NSW Trustee. (2) This section does not limit the generality of the powers or other functions of the Supreme Court or the NSW Trustee. Note— Under section 61 of the Probate and Administration Act 1898, a deceased person's estate vests in the NSW Trustee until probate, administration or an order to collect is granted. 23 Intestacy where no letters of administration (cf PT Act, s 18 (1A)) (1) The NSW Trustee is, on application, entitled as of right to a grant of administration of the estate of a person who died intestate leaving property in New South Wales if— (a) letters of administration of the deceased person's estate have not been granted, or (b) letters of administration of the estate granted to a person other than the NSW Trustee are revoked, or (c) a person granted letters of administration of the estate dies without completing administration of the estate. (2) The NSW Trustee is not required to provide, and the Supreme Court may not require the provision of, any citation or consent before administration of the estate of the deceased person is granted. (3) However, if the NSW Trustee and any other person severally apply for the administration of the deceased person's estate, the Supreme Court may grant administration of the estate to the NSW Trustee or other person, as the Court thinks fit. 24 Transfer of administration of estate to NSW Trustee (cf PT Act, s 18 (2)) (1) The Supreme Court may make an order transferring an estate to the NSW Trustee for administration, on application by an executor who has been granted probate or an administrator who has been granted administration. This section applies despite the existence of any other executor or administrator. (2) The Supreme Court may, in any such order, determine the extent to which the existing executor or executors or the existing administrator or administrators remain liable for any matters arising after the making of the order. (3) On an order transferring an estate being made, section 75A of the Probate and Administration Act 1898 applies as if the NSW Trustee had been appointed as an administrator under that section. 25 Administration of estates in cases of supposed deaths (cf PT Act, s 23) (1) The Supreme Court may order the NSW Trustee to administer the estate of a person if it appears to the Court that there are reasonable grounds to suppose that the person has died intestate (whether in or outside New South Wales) leaving property in New South Wales. (2) If such an order is made, the NSW Trustee may— (a) collect, manage and administer the personal estate of the person, and (b) enter and manage the real estate of the person, including receiving the rents and profits of any such estate, and (c) pay and discharge the debts and liabilities of the person. (3) The NSW Trustee may exercise any such function as if the person were certainly dead and the NSW Trustee had obtained a grant of probate or administration. (4) The NSW Trustee must not distribute any assets of the person's estate except in accordance with an order of the Supreme Court specially authorising the distribution. (5) Nothing in this section affects the application of sections 40A–40C of the Probate and Administration Act 1898. Part 3.2 Small estates Division 1 Elections to administer small estates 26 Election to administer where no previous executor or administrator (cf PT Act, s 18A (1)–(3)) (1) The NSW Trustee may file an election to administer the estate of a deceased person who died testate or intestate in the registry of the Supreme Court, instead of applying for probate or administration, if— (a) the gross value of the estate in New South Wales, as estimated by the NSW Trustee, is less than the amount prescribed by the regulations for the purposes of this section, and (b) no person has obtained probate of the estate or taken out administration, and (c) the NSW Trustee is entitled to obtain probate or letters of administration of the estate, and (d) the NSW Trustee has made due inquiries as to the will, if the deceased person died testate. (2) An election must be sealed by the NSW Trustee and must set out— (a) the name, residence and occupation (as far as it is known to the NSW Trustee) of the deceased person, and (b) particulars of property forming the deceased person's estate, and (c) the date of the deceased person's death as then known to the NSW Trustee, and (d) if the deceased person died testate, state that, after due inquiries, the NSW Trustee believes that the document annexed to the election is the testator's last will and that the will has been validly executed according to the law governing the execution of wills. (3) On an election being filed, the NSW Trustee is taken to have been appointed by the Supreme Court as the executor of the estate or the administrator of the estate. 27 Election to administer where previous executor or administrator (cf PT Act, s 18A (3A)) (1) The NSW Trustee may file an election to administer the unadministered estate of a deceased person who died testate or intestate in the registry of the Supreme Court, instead of taking out administration de bonis non, if— (a) the executor or administrator of the estate has died and no other person has taken out administration de bonis non in respect of the estate, and (b) part of the estate is unadministered, and (c) the gross value of the unadministered part of the estate in New South Wales is less than the amount prescribed by the regulations for the purposes of this section, and (d) the NSW Trustee is entitled to take out administration de bonis non. (2) An election must be sealed by the NSW Trustee and must set out— (a) the fact of the original grant, and (b) the fact of the death of the executor or administrator, and (c) particulars of the property left unadministered. (3) On an election being filed, the NSW Trustee is taken to have been appointed by the Supreme Court as the administrator de bonis non of the estate. 28 Estate not small estate (cf PT Act, s 18A (5)) (1) If, after an election takes effect under this Division, the NSW Trustee becomes aware that the gross value of the estate or the unadministered estate exceeds the amount prescribed for the purposes of making an election, the NSW Trustee must file a notice to that effect in the registry of the Supreme Court. (2) The NSW Trustee is not entitled to continue to administer the estate under this Division but must obtain probate or administration in the ordinary manner. 29 Discovery of later will (cf PT Act, s 18A (5A)) (1) If, after an election takes effect under this Division, a later will, or a will, is found, the NSW Trustee must file a notice to that effect in the registry of the Supreme Court. (2) On filing the notice, the NSW Trustee ceases to be the executor or administrator of the estate and may, if it is otherwise entitled to do so, obtain probate or administration in the ordinary manner or make a new election under this Division. (3) If the NSW Trustee does not obtain probate or letters of administration or make a new election under this Division, the Probate and Administration Act 1898 applies as if a grant of probate or administration to the NSW Trustee had been revoked. Note— See section 40D of the Probate and Administration Act 1898. 30 Notices and elections (1) The NSW Trustee must publish, in accordance with the regulations, notice of an election made by, or a notice filed by, the NSW Trustee under this Division. (2) A notice under this Division is to be in the form (if any) prescribed by the regulations and to contain the particulars prescribed by the regulations. (3) A notice that complies with this section is conclusive evidence that the NSW Trustee is entitled to administer an estate under this Division. Division 2 Small estates for which probate or administration not required 31 No probate or administration required (cf PT Act, s 34A) (1) This section applies to the estate of a deceased person who died testate or intestate if— (a) the net value of the estate in New South Wales is less than the amount prescribed by the regulations for the purposes of this section, and (b) the NSW Trustee has no knowledge of any application having been lodged for probate of the will or for the administration of the estate, and (c) the NSW Trustee has given notice in accordance with the regulations of its intention to act under this section. (2) The NSW Trustee may deal with the estate as if probate of the will of the deceased person or administration of the estate had been granted to the NSW Trustee. (3) The NSW Trustee is entitled to the same commission as it would be entitled to if the NSW Trustee had been granted probate or administration of the estate. The commission is a first charge on the estate. (4) The NSW Trustee must deposit any will of a deceased person with an estate to which this section applies in accordance with section 51 of the Succession Act 2006. Part 3.3 General 32 NSW Trustee not required to file accounts (cf PT Act, s 35A) (1) The NSW Trustee, when acting alone in relation to any estate, is not required to file or pass accounts relating to the estate unless the Supreme Court, on the application by or on behalf of a person interested in the estate, so orders. (2) The NSW Trustee, when appointed and acting jointly with any other person in relation to any estate, is not required to file or pass accounts relating to the estate unless— (a) the other person wishes to claim commission for his or her pains and trouble, or (b) the Supreme Court, on application by or on behalf of a person interested in the estate, so orders. 33 Entitlement to costs (cf PT Act, ss 43A and 43B) (1) The NSW Trustee is entitled to the NSW Trustee's costs out of an estate for any application by the NSW Trustee for probate of any will or for administration with a will annexed. (2) The NSW Trustee is entitled to the NSW Trustee's costs out of an estate if the NSW Trustee applies for administration at the request of one or more beneficiaries of a deceased estate who cannot agree as to the person to be appointed administrator, whether or not the NSW Trustee is appointed administrator. (3) The NSW Trustee is not liable for the costs of any other person in respect of an application or estate referred to in subsection (1) or (2). 34 Proceeds of sale of goods of third person (cf PT Act, s 47) (1) If the NSW Trustee disposes of goods of a person other than a person for whom the NSW Trustee is acting in a trust capacity, the NSW Trustee must pay the proceeds of any such sale to the person on proof of ownership. (2) The NSW Trustee is not liable to pay the proceeds of the sale to any such person if the proceeds have, in good faith and without notice of the person's interest in the goods, been applied to the debts of the deceased person or in the course of the distribution or administration of the estate of the deceased person. 35 Reciprocal arrangements for intestacy (cf PT Act, ss 55 and 56) (1) In this section— Public Trustee of a reciprocating State means a person or body that exercises functions equivalent to the trust capacities of the NSW Trustee in the reciprocating State. reciprocating State means— (a) any other State or a Territory of Australia, or (b) any country prescribed by the regulations as a reciprocating State for the purposes of this section. (2) The NSW Trustee may pay to the Public Trustee of a reciprocating State the proceeds of an estate of a person for which the NSW Trustee is acting as collector of the estate, after payment of creditors and any costs under this Act, if— (a) the person was domiciled in the reciprocating State when the person died, and (b) the Public Trustee of the reciprocating State is the administrator of the estate or is the collector of the estate in the reciprocating State. (3) The NSW Trustee— (a) is not required to see to the application of, and is not liable in respect of, any money paid to the Public Trustee of a reciprocating State under this section, and (b) is not liable for any act or omission of the Public Trustee of a reciprocating State in the exercise of functions referred to in this section. (4) The NSW Trustee may receive from the Public Trustee of a reciprocating State the proceeds of the estate of a person in the reciprocating State that is being administered by that Public Trustee or for which that Public Trustee is acting as the collector of the estate if— (a) the person was domiciled in this State when the person died, and (b) the NSW Trustee is the administrator of the person's estate. (5) The proceeds of an estate received by the NSW Trustee under this section form part of the estate of the deceased person and are to be dealt with in accordance with the law of this State. 36 Appointment of other persons to conduct business of estate (cf PT Act, s 57) (1) This section applies to an estate of a deceased person if the NSW Trustee is acting in a trust capacity and the testator or settler has directed in a trust instrument that a specified person is to conduct the legal or other business of the estate. (2) The specified person is entitled to conduct the legal or other business of the estate in accordance with the direction. (3) The NSW Trustee is not liable for any act or omission of the specified person in conducting the legal or other business of the estate. (4) The Supreme Court may, on application by the NSW Trustee, or any other person interested in the estate, on cause being shown, direct that the specified person is not to conduct the legal or other business of the estate and may appoint any other person to conduct the business concerned. 37 Disclosure of property to NSW Trustee (cf PT Act, s 54) An association, corporation or other person must, on or as soon as is reasonably practicable after becoming aware of the vesting of the estate of a deceased person in the NSW Trustee, notify the NSW Trustee of the following matters— (a) any property of the deceased person that is in the possession of the association, corporation or other person, (b) any amount owed to the deceased person by the association, corporation or other person, (c) any share of the deceased person in the assets of a partnership, (d) in the case of a corporation, any shares held by the deceased person in the corporation, (e) in the case of an association, any entitlement of the deceased person to the assets of the association. Maximum penalty—10 penalty units. Chapter 4 Management functions relating to persons incapable of managing their affairs Part 4.1 Preliminary 38 Interpretation In this Chapter— estate of a person means the property and affairs of a person and, if only part of the estate of a person is under management under this Chapter, means only that part of the property and affairs of the person. involuntary patient has the same meaning as it has in the Mental Health Act 2007. managed missing person means a person in respect of whom an order is in force under Part 4.4 that the person's estate be subject to management under this Act. managed person means a protected person, managed missing person or patient whose estate is subject to management under this Act. manager of an estate means the NSW Trustee, if management of the estate is committed to the NSW Trustee, or any person who is appointed as the manager of the estate of a managed person. mental health facility has the same meaning as it has in the Mental Health Act 2007. mental health inquiry means a mental health inquiry under section 34 of the Mental Health Act 2007. patient has the same meaning as it has in the Mental Health Act 2007. person under guardianship has the same meaning as it has in Part 3 of the Guardianship Act 1987. protected person means a person in respect of whom an order is in force under Part 4.2 or 4.3 or the Guardianship Act 1987 that the whole or any part of the person's estate be subject to management under this Act. 39 General principles applicable to Chapter It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles— (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation. 40 Orders for management may apply to part of estate An order may be made under this Chapter for the management of the whole or part of the estate of a person. Note— Orders for the financial management of the estates of persons under guardianship may also be made under Part 3A of the Guardianship Act 1987. Such persons are protected persons for the purposes of this Act. Part 4.2 Orders by Supreme Court that estates of persons subject to management 41 Orders by Supreme Court for management of affairs (cf PE Act, s 13) (1) If the Supreme Court is satisfied that a person is incapable of managing his or her affairs, the Court may— (a) declare that the person is incapable of managing his or her affairs and order that the estate of the person be subject to management under this Act, and (b) by order appoint a suitable person as manager of the estate of the person or commit the management of the estate of the person to the NSW Trustee. (2) The Supreme Court may make an order on its own motion or on the application of any person having a sufficient interest in the matter. (3) For the purposes of this section— (a) evidence of a person's capability to manage his or her own affairs may be given to the Supreme Court in any form and in accordance with any procedures that the Court thinks fit, and (b) the Court may personally examine a person whose capability to manage his or her affairs is in question or dispense with any such examination, and (c) the Court may otherwise inform itself as to the person's capability to manage his or her own affairs as it thinks fit. (4) Subsection (3) also applies to an application arising out of the operation of section 37 (2) of the Powers of Attorney Act 2003. 42 Orders relating to persons outside New South Wales (cf PE Act, s 14) (1) If a person has been found to be incapable of managing his or her own affairs by a legal inquiry in another State or a Territory, or a country to which this section applies, the Supreme Court may— (a) direct a copy of the inquiry or the finding of the inquiry, duly certified by an officer of the court or other authority to which the finding has been returned, to be filed with the Court, and (b) declare that the person is incapable of managing his or her affairs and order that the estate of the person in this State be subject to management under this Act, and (c) by order appoint a suitable person as manager of the estate of the person in this State or commit the management of the estate of the person in this State to the NSW Trustee. (2) The Governor may, by proclamation published on the NSW legislation website, extend the application of the provisions of this section to another country. 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 (cf PE Act, s 15) An authorised medical officer who intends to bring a person before a mental health inquiry must— (a) when giving the information required to be given to the person under section 76 of the Mental Health Act 2007, give to the person the information prescribed by the regulations with respect to the question of the capability of the person to manage his or her affairs, and (b) when giving the notice required to be given under section 76 of that Act, give to each of the persons required to be given that notice the information prescribed by the regulations with respect to the question of the capability of the person subject to the inquiry to manage his or her own affairs. 44 Consideration of capability to manage affairs at mental health inquiries If the MHRT after conducting a mental health inquiry orders that the person subject to the inquiry be detained in a mental health facility, it must— (a) consider whether the person is capable of managing his or her own affairs, and (b) if satisfied that the person is not capable of managing his or her own affairs, order that the estate of the person be subject to management under this Act. 45 Consideration of capability of forensic patients to manage affairs (cf PE Act, s 18) If the MHRT, after reviewing a person's case under Part 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, orders that a person be detained in a mental health facility, it must— (a) consider whether the person is capable of managing his or her own affairs, and (b) if satisfied that the person is not capable of managing his or her own affairs, order that the estate of the person be subject to management under this Act. 46 Other orders by MHRT (cf PE Act, s 19) (1) The MHRT may, on application, consider a patient's capability to manage his or her affairs and, if satisfied that the patient is not capable of managing his or her affairs, must order that the estate of the person be subject to management under this Act. (2) An application under this section may be made by any person who has, in the opinion of the MHRT, a sufficient interest in the matter. (3) An order may be made under this section even though there has been no change in the capability of the patient's ability to manage his or her own affairs since that capability was last considered under this Part. 47 Interim orders (cf PE Act, s 20) (1) The MHRT may, if it appears to the MHRT to be necessary or convenient to do so, make an interim order under this Part for a specified period not exceeding 6 months, pending further consideration of the person's capability to manage his or her affairs. (2) If the further consideration of the capability of the person to whom the interim order relates to manage his or her own affairs is not completed before the expiry of the period specified in the order, the order is taken to be revoked on that expiry. 48 MHRT may review interim orders (1) The MHRT may, in an order made under section 47 (an interim order) or a subsequent order, order that the interim order be reviewed within a specified time. (2) The MHRT must begin any required review within the time specified in the relevant order. (3) The MHRT may, at any time on its own motion, review an interim order. (4) If an interim order would cease to have effect before the completion of a review, the order is taken to be extended until the completion of the review. (5) Before carrying out the review, the MHRT must cause a notice specifying the date on which, and the time and place at which, the MHRT will carry out the review to be served on each party to the proceedings. The review is taken to have commenced on the issue of such a notice. (6) A failure to serve notice in accordance with this section does not vitiate the decision of the MHRT on the review. 49 Appeals to Supreme Court against management orders (cf PE Act, s 21) (1) An appeal may be made to the Supreme Court by a person who is subject to an order made by the MHRT that the estate of the person be subject to management under this Act. (2) An appeal— (a) is to be by way of a new hearing, and (b) fresh evidence or evidence in addition to, or in substitution for, the evidence in relation to which the order in respect of which the appeal is made may be given on the appeal. (3) If the person to whom the order relates has appealed to the Civil and Administrative Tribunal under this Division against the order, the person may not appeal to the Supreme Court under this section against the same order. However, the person may appeal to the Court under this section if the appeal is withdrawn with the approval of the Civil and Administrative Tribunal for the purpose of enabling the Court to deal with the matter. (4) On an appeal, the Supreme Court may revoke or confirm the order in respect of which the appeal is made. (5) Neither the MHRT nor any member of the MHRT is liable for any costs relating to an order of the MHRT in respect of which an appeal is made or the appeal. 50 Appeals to NCAT against estate management orders made by MHRT (cf PE Act, s 21A) (1) An appeal may be made by the following persons to the Civil and Administrative Tribunal against an order by the MHRT that the estate of a person be subject to management under this Act— (a) the person to whom the order relates, or (b) any other person who was a party to the proceedings in which the order was made. Note— An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) An appeal may be made— (a) as of right, on any question of law, or (b) by leave of the Tribunal, on any other grounds. (3) If the person to whom the order relates has appealed to the Supreme Court under this Division against the order, the person may not appeal to the Civil and Administrative Tribunal under this section against the same order. However, the person may appeal to the Tribunal under this section if the appeal is withdrawn with the approval of the Court for the purpose of enabling the Tribunal to deal with the matter. 51 Notice of reasons for orders and appeal rights (cf PE Act, s 21B) (1) If the MHRT makes an order that the estate of a person be subject to management under this Act, the MHRT must, if requested to do so by any party to the proceedings (including the person to whom the order relates), provide the party with formal written reasons for the order as soon as practicable after making the order. (2) In providing those reasons, the MHRT must also advise the party concerned that an appeal may be made to the Civil and Administrative Tribunal against the order under this Part. 52 Estates committed to management of the NSW Trustee (cf PE Act, s 22) The estate of a person that is ordered, under this Part, to be subject to management under this Act 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 53 NSW Trustee may undertake management of estates of certain patients (cf PE Act, s 63) (1) The NSW Trustee may, on application in writing, undertake the management of the whole or part of the estate of a patient who is not a protected person. (2) An application may be made by a patient if the patient is 18 years or over or, if the patient is under 18 years of age, by the person having parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998) for the patient. (3) If the NSW Trustee undertakes the management of the whole or part of the estate of a patient, the whole or part of the estate is taken to be committed to the management of the NSW Trustee. Part 4.4 Orders for management of estates of missing persons 54 Declaration and order where person missing (cf PE Act, s 21C) (1) The Supreme Court may— (a) declare that a person is a missing person and order that the estate of the person (or any part of it) be subject to management under this Act, and (b) by order appoint a suitable person as manager of the estate of the person or commit the management of the estate of the person to the NSW Trustee. (2) A declaration and order may be made for the estate of a person under this section only if the Supreme Court is satisfied that— (a) the person is a missing person, and (b) it is not known whether the person is alive, and (c) all reasonable efforts have been made to locate the person, and (d) the person's usual place of residence is in this State, and (e) persons residing at the place where the person was last known to reside, or relatives or friends, with whom the person would be likely to communicate, have not heard from, or of, the person for at least 90 days, and (f) it is in the best interests of the person to do so. (3) An application for a declaration and order under this section in relation to a person may be made by any of the following persons— (a) the spouse or de facto partner of the person, (b) a relative of the person, (c) a business partner or employee of the person, (d) the Attorney General, (e) the NSW Trustee, (f) any other person who has an interest in the estate of the person. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. (4) On the hearing of an application for the purposes of this section, evidence may be given to the Supreme Court in such form and in accordance with such procedures as the Court thinks fit. Part 4.5 Management of estates Division 1 Management of estates by NSW Trustee 55 Application of Division This Division applies in respect of the estate of a managed person that is committed to the management of the NSW Trustee. 56 General management functions (cf PE Act, s 24) The NSW Trustee has, and may exercise, in respect of the estate of a managed person, the following functions— (a) all functions necessary and incidental to its management and care, (b) such other functions as the Supreme Court or the Civil and Administrative Tribunal (in the case of a person under guardianship) may direct or authorise the NSW Trustee to have or exercise. Note— See also section 16, which sets out the general powers of the NSW Trustee with respect to property. 57 NSW Trustee has all functions of managed person (cf PE Act, s 26 (1) and (1A)) (1) For the purposes of its protective capacities in respect of a protected person or patient, the NSW Trustee has, and may exercise, all the functions the person or patient has and can exercise or would have and could exercise if under no incapacity. (2) For the purposes of its protective capacities for a managed missing person, the NSW Trustee has, and may exercise, all the functions that the person has and can exercise or would have and could exercise if the person were not missing. 58 Execution of documents for managed persons (cf PE Act, s 26 (2) and (3)) (1) The NSW Trustee may execute and sign any document in the name of and on behalf of a managed person for the purpose of exercising a function in a protective capacity. (2) An exercise of a function by the NSW Trustee under this section— (a) is as effective as if it were exercised by the managed person, and (b) to the extent to which that person lacks capacity to exercise the function, is as effective as if the person did not lack capacity. (3) A person acting on a document executed or signed by the NSW Trustee under this section is not bound to inquire as to the NSW Trustee's power to execute or sign the document or as to the application of any money paid pursuant to any dealing with the NSW Trustee as a consequence of the document. 59 Application of money of managed estates The NSW Trustee may apply money of the estate of a managed person towards any one or more of the following purposes— (a) the payment of the debts and engagements of the person and the repayment of expenses chargeable to the estate of the person, (b) in the event of the death of the person, the person's funeral expenses, (c) the maintenance of the spouse of the person or any child, parent or other person dependent upon the person, or for whose maintenance the person provided when not a managed person or would be expected to provide, (d) the payment of all proper costs incurred in or about the care, protection, recovery, sale, mortgage, leasing, disposal and management of the estate of the person, (e) the preservation and improvement of the estate of the person, (f) the taking up of rights to issues of new shares, or options for new shares, to which the person may become entitled by virtue of any shareholdings, (g) the maintenance (including future maintenance), clothing, medicine and care, past and present, of the person. 60 Arrangements during absence of patient from mental health facility (cf PE Act, s 37) (1) While a protected person who is a patient is absent from a mental health facility, the NSW Trustee may, at the discretion of the NSW Trustee— (a) pay to the patient or to any person on behalf of the patient who gives satisfactory security to the NSW Trustee for the proper management and disposal of it, or as the patient or person directs, the whole or any part of the money standing to the credit of the current account of the patient in the common fund, and (b) hand over to the patient or person, or as the patient or person directs, all or any chattels or documents forming part of the estate of the patient. (2) The receipt of a person in accordance with whose direction money is paid or chattels or documents are handed over under this section is an absolute release to the NSW Trustee from liability in respect of any action taken by the NSW Trustee under this section. 61 Supreme Court may give directions to NSW Trustee (cf PE Act, s 12) (1) The Supreme Court may give to the NSW Trustee such directions as the Court thinks necessary with respect to the exercise by the NSW Trustee of its functions in its protective capacities. (2) An application for directions may be made by any of the following— (a) the NSW Trustee, (b) a managed person, (c) a relative, friend or debtor of a managed person, (d) any other person who has, in the opinion of the Supreme Court, a sufficient interest in the matter. 62 Administrative review by NCAT of decisions by NSW Trustee under this Division (1) An affected person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the NSW Trustee that— (a) is made in connection with the exercise of the NSW Trustee's functions under this Division, and (b) is of a class of decision prescribed by the regulations for the purposes of this section. (2) Each of the following is an affected person— (a) a managed person in respect of whose estate the decision was made, (b) the spouse of a managed person in respect of whose estate the decision was made, (c) any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision. (3) Subsection (1) does not apply if the decision of the NSW Trustee was made in accordance with a direction given by the Supreme Court to the NSW Trustee. Division 2 Management of estates by other persons 63 Application of Division This Division applies in respect of the estate of a managed person for whom a manager (other than the NSW Trustee) has been appointed, whether under this Act or under section 25M of the Guardianship Act 1987. 64 Orders by Supreme Court and NSW Trustee as to management of estates (1) The Supreme Court or the NSW Trustee may make such orders as it thinks fit in relation to the administration and management of the estates of managed persons. (2) The Supreme Court or the NSW Trustee may also make such orders as it thinks fit in connection with authorising, directing and enforcing the exercise of the functions of managers under this Act. (3) The Supreme Court may also make such orders as it thinks fit in connection with supervising the exercise of the functions of managers under this Act. (4) An order by the NSW Trustee is subject to the regulations or to any direction by the Supreme Court or to any order of the Civil and Administrative Tribunal (in the case of a person under guardianship). 65 Orders by Supreme Court and NSW Trustee as to property (1) General power The Supreme Court or the NSW Trustee may make such orders as appear to it necessary for rendering the property and income of a managed person available for the following purposes— (a) the payment of the debts and engagements of, and otherwise for the benefit of, the person, (b) the maintenance and benefit of the family of the person, (c) otherwise as it thinks necessary or desirable for the care and management of the estate of the person. (2) Orders as to disposal of estate Without limiting the generality of subsection (1), the Supreme Court or the NSW Trustee may order that any property of the person be sold, mortgaged, dealt with or disposed of as the Court or the NSW Trustee thinks most expedient for the purpose of raising or securing or repaying with or without interest money which is to be or which has been applied to any one or more of the following purposes— (a) payment of the person's debts or engagements, (b) discharge of any encumbrance on property of the person, (c) payment of any debt or expenditure incurred for the maintenance (including future maintenance), or otherwise for the benefit, of the person, (d) payment of the costs of any proceeding under this Act or of any sale or other disposition made under this Act, (e) payment of such other sum or sums to such person or persons as the Court or the NSW Trustee thinks fit. (3) Orders as to application of money Without limiting subsection (1), the Supreme Court or the NSW Trustee may authorise and direct the application of money comprising the whole or any part of the estate of the person to any one or more of the following purposes— (a) the preservation and improvement of the estate of the person, (b) the taking up of rights to issues of new shares, or options for new shares, to which the person may become entitled by virtue of any shareholdings, (c) the investment of money, being money not required for the time being for any of the other purposes specified in this subsection, in such manner as the Court or the NSW Trustee thinks fit. (4) An order by the NSW Trustee is subject to the regulations or to any order of the Supreme Court or to any order of the Civil and Administrative Tribunal (in the case of a person under guardianship). 66 NSW Trustee may authorise and direct functions of other managers (1) The NSW Trustee may, by order— (a) authorise a manager to have all, or any specified, functions necessary and incidental to the management and care of an estate and such other functions as the NSW Trustee may direct or authorise the manager to have or exercise, and (b) give a manager such directions in respect of the orders, authorities and directions authorised by this subsection as the NSW Trustee thinks fit. (2) Without limiting any other provision of this Division, the NSW Trustee may authorise a manager to have functions of a kind specified in section 16. (3) An order by the NSW Trustee is subject to the regulations or to any order of the Supreme Court or to any order of the Civil and Administrative Tribunal (in the case of a person under guardianship). (4) This section is in addition to sections 64 and 65. 67 Managers may execute documents (cf PE Act, s 26 (2) and (3)) (1) A manager may, in accordance with an order or direction of the Supreme Court, the NSW Trustee or the Civil and Administrative Tribunal (in the case of a person under guardianship), execute and sign any document and do any other thing in the name of and on behalf of the managed person. (2) An exercise of a function by a manager under this section— (a) is as effective as if it were exercised by the managed person, and (b) to the extent to which that person lacks capacity to exercise the function, is as effective as if the person did not lack capacity. (3) A person acting on a document executed or signed by a manager under this section is not bound to inquire as to the manager's power to execute or sign the document or as to the application of any money paid pursuant to any dealing with the manager as a consequence of the document. 68 Security may be required in respect of estate management (cf PE Act, s 31) (1) The Supreme Court or the Civil and Administrative Tribunal may require a manager it appoints to give security (including security comprising the assets of the managed estate) to the NSW Trustee in respect of the management. (2) A manager is not taken to have complied with a requirement under subsection (1) unless the security given has been approved by the NSW Trustee. (3) The NSW Trustee is to ensure that the conditions of any security provided under this section, or before the commencement of this section, in respect of the management of the estate of a managed person are complied with. (4) The NSW Trustee must report any failure to comply with any such condition to the Supreme Court or the Civil and Administrative Tribunal (as the case requires) immediately on becoming aware of the failure. (5) The provisions of Schedule 2 to the Bail Act 2013 and Part 7 of the Fines Act 1996 apply to the forfeiture of any security and to the recovery of any security so forfeited in the same way as they apply to the forfeiture of bail money and to the recovery of any bail money so forfeited. 69 Managers may lodge estate funds with NSW Trustee (cf PE Act, s 31A) A manager may, subject to any order of the Supreme Court under this Part or of the Civil and Administrative Tribunal, lodge with the NSW Trustee any money that comprises the whole or part of the estate of the managed person. 70 Administrative review by NCAT of decisions by NSW Trustee in relation to managers (1) Each of the following persons may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision by the NSW Trustee under this Part in relation to the functions of a person appointed as a manager— (a) the person appointed as manager, (b) any other person who, in the opinion of the Civil and Administrative Tribunal, has a genuine interest in the matter to which the NSW Trustee's decision relates. (2) Subsection (1) does not apply if the decision by the NSW Trustee was made in accordance with a direction given by the Supreme Court to the NSW Trustee. Division 3 Management of estates generally 71 Managed person cannot deal with estate (cf PE Act, s 23A) (1) The power of a managed person to deal with his or her estate is suspended in respect of so much of that estate as is subject to management under this Act. (2) However, the manager may, by instrument in writing, authorise the managed person to deal with so much of the estate as the manager considers appropriate and specifies in the instrument. (3) The authorisation may be given at any time and may be withdrawn, wholly or in part, at any time. (4) More than one authorisation may be given under this section. (5) An authorisation must not be given or withdrawn by a manager who is not the NSW Trustee without the approval of the NSW Trustee. (6) Each of the following persons may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 for a review of a decision of the NSW Trustee about whether or not to approve of the giving or withdrawal of an authorisation— (a) the manager, (b) the managed person, (c) the spouse of the managed person, (d) any other person who, in the opinion of the Civil and Administrative Tribunal, has a genuine interest in the matter to which the NSW Trustee's decision relates. (7) (Repealed) 72 Consultation by NSW Trustee (cf PE Act, s 50) (1) The NSW Trustee must take t