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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Protected Estates Amendment
(Investment) Bill 2000
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Protected Estates Act 1983 No 179 2
Schedule 1 Amendments 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE COUNCIL, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Parliaments
Legislative Council
2000
New South Wales
Protected Estates Amendment
(Investment) Bill 2000
Act No , 2000
An Act to amend the Protected Estates Act 1983 in relation to the Protective
Commissioner's powers of investment; and for other purposes.
Clause 1 Protected Estates Amendment (Investment) Bill 2000
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Protected Estates Amendment (Investment) Act 2000.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Protected Estates Act 1983 No 179
The Protected Estates Act 1983 is amended as set out in Schedule 1.
Page 2
Protected Estates Amendment (Investment) Bill 2000
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 4 Definitions
Insert in alphabetical order:
costs includes fees, charges, disbursements, expenses and
remuneration.
Director-General means the Director-General of the Attorney
General's Department.
investment fund means an investment fund established under
section 54.
reserve fund means a reserve fund established under section
54.
[2] Section 5 Protective Commissioner and other officers
Omit "Public Service Act 1979" from section 5 (1) and (2).
Insert instead "Public Sector Management Act 1988".
[3] Section 5A Delegation
Insert at the end of the section:
(2) Without limiting subsection (1), the Protective Commissioner
may delegate to any suitably qualified person the Protective
Commissioner's functions in relation to investment funds.
[4] Section 5B Protective Commissioner to be corporation sole for certain
purposes
Omit "section 58" from section 5B (1) (a). Insert instead "this Act".
[5] Section 10 Witness may be cross-examined
Omit "and expenses" from section 10 (2).
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Protected Estates Amendment (Investment) Bill 2000
Schedule 1 Amendments
[6] Section 27 Payments into trust fund
Omit "Except as provided by section 8 (5), the" from section 27 (1).
Insert instead "The".
[7] Section 28 Disposition of money in hands of Protective Commissioner
Omit ", charges and expenses" from section 28 (1) (d).
[8] Section 28 (1) (g)
Omit the paragraph. Insert instead:
(g) the investment of money, being money not required for
the time being for a purpose referred to in paragraphs
(a)(f) above:
(i) in any form of investment, or
(ii) if the Protective Commissioner is aware that the
protected person prefers a particular form of
investment, in the form of investment preferred
by that person.
[9] Section 28 (1A)
Insert after section 28 (1):
(1A) The power to invest money under subsection (1) (g) (i) is to be
exercised in accordance with the Trustee Act 1925.
[10] Section 28 (2)
Omit "The Protective Commissioner shall not invest any money comprising
part of the estate of a protected person in the purchase of real estate as
referred to in subsection (1), unless such a purchase".
Insert instead "Despite section 14DA of the Trustee Act 1925, the
Protective Commissioner may purchase real estate under subsection (1) (g)
(i) if it".
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Protected Estates Amendment (Investment) Bill 2000
Amendments Schedule 1
[11] Section 28 (3)
Insert after section 28 (2):
(3) For the purpose of ascertaining whether or not a protected
person prefers a particular form of investment, the Protective
Commissioner may have regard to the following matters:
(a) any investments made by the protected person before
his or her estate became subject to management under
this Act, being investments of which the Protective
Commissioner is aware,
(b) any views expressed to the Protective Commissioner by
the protected person regarding his or her preferred forms
of investment,
(c) any statements made to the Protective Commissioner by
relatives of the protected person, and verified by
statutory declaration, as to the views expressed to them
by the protected person, either before or after his or her
estate became subject to management under this Act,
regarding his or her preferred forms of investment.
[12] Section 42 Death of protected person
Insert at the end of the section:
(2) If a protected person dies, the Protective Commissioner may
take such steps as are necessary to complete any transaction:
(a) that relates to the protected person's estate, and
(b) that was commenced before the death of the protected
person, and
(c) to which the protected person was a party immediately
before the protected person's death.
(3) Subsection (2) does not empower the Protective Commissioner
to do anything in contravention of:
(a) the directions of any executor, administrator or trustee
of the protected person's estate, or
(b) any court order.
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Protected Estates Amendment (Investment) Bill 2000
Schedule 1 Amendments
[13] Part 4
Omit the Part. Insert instead:
Part 4 Investment of trust fund
52 Trust fund to form common fund
(1) Balances to the credit of all current accounts in the trust fund
are, for the purposes of investment, one common fund.
(2) The balance of a current account does not form part of the
common fund if:
(a) the current account is held by the Protective
Commissioner jointly with another person, and
(b) the other person has objected in writing to it forming
part of the common fund.
53 Investment of trust fund
Money in the trust fund may be invested:
(a) in accordance with the Trustee Act 1925, in any
investment, or
(b) to the extent of not more than $1,000,000 at any one
time, on deposit with the Treasurer for a period or
periods not exceeding 12 months.
54 Establishment of investment funds and reserve fund
(1) For the purpose of investing money in accordance with section
53 (a), the Protective Commissioner is to establish:
(a) one or more investment funds, and
(b) a reserve fund.
(2) The Protective Commissioner may from time to time transfer
money from the trust fund to an investment fund or from an
investment fund to the trust fund.
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Protected Estates Amendment (Investment) Bill 2000
Amendments Schedule 1
(3) The Protective Commissioner may determine the classes of
investments in which money in an investment fund may be
invested and may vary the classes from time to time.
(4) The Protective Commissioner is to keep an account for each
investment fund showing the amounts that are from time to
time to the credit of each current account from which the fund
is derived.
55 Application of money in investment fund
(1) Money in an investment fund may be applied for the following
purposes:
(a) the making of investments authorised by this Part,
(b) payment to the reserve fund of such amount as the
Protective Commissioner may from time to time
determine,
(c) payment of such amount as the Protective
Commissioner may from time to time determine in
relation to the costs incurred by the Protective
Commissioner:
(i) in the exercise of the Protective Commissioner's
functions under this Act, and
(ii) in the exercise of the Protective Commissioner's
functions as Public Guardian under the
Guardianship Act 1987,
(d) the making of periodic payments to the current accounts
from which the fund is derived.
(2) The amount referred to in subsection (1) (c) must not exceed
such amount as is approved by the Director-General having
regard to the Protective Commissioner's current budget.
(3) For the purpose of making payments referred to in subsection
(1) (d):
(a) any income arising from an investment fund must be
periodically divided between each current account in the
trust fund in proportion to the amounts invested from
those accounts and the period of each investment, and
(b) any profit or loss of a capital nature arising from that
fund must be periodically divided between the current
accounts in proportion to the amounts invested.
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Protected Estates Amendment (Investment) Bill 2000
Schedule 1 Amendments
56 Valuation of investment funds
(1) The Protective Commissioner is to value each investment fund
(including the investments in which the fund is invested) as at
the first business day of each named month and, if the
Protective Commissioner thinks fit, as at such other times as
may be appropriate according to the nature of the particular
fund.
(2) Investments in and withdrawals from an investment fund are to
be effected on the basis of the most recent valuation under this
section.
57 Application of money in reserve fund
Money in the reserve fund may be applied for the following
purposes:
(a) payment to an investment fund of such amount as the
Protective Commissioner may from time to time
determine as the loss upon realisation of any investment
made from that fund,
(b) payment of such amount as the Protective
Commissioner may from time to time determine as the
costs incurred in protecting investments made from an
investment fund.
58 Submission of budgets
(1) Whenever directed to do so by the Director-General, the
Protective Commissioner is to submit a budget to the Director-
General in relation to the Protective Commissioner's costs,
including projected costs, in connection with:
(a) the exercise of the Protective Commissioner's functions
under this Act, and
(b) the exercise of the Protective Commissioner's functions
as Public Guardian under the Guardianship Act 1987.
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Protected Estates Amendment (Investment) Bill 2000
Amendments Schedule 1
(2) The budget is to relate to such period, and include such
information, as the Director-General directs.
59 Advances from trust fund
(1) The Protective Commissioner may make advances from the
trust fund for the purposes of any estate being managed by the
Protective Commissioner.
(2) Any advance bears interest at the rate fixed by the Protective
Commissioner.
(3) The advance, and any interest on the advance, are a charge on
the assets of the estate for whose purposes the advance is made.
(4) If the advance is applied towards the discharge of any debt or
liability, the charge under subsection (3) ranks in the same
order of priority as the debt or liability.
(5) Any interest received by the trust fund under this section is to
be divided between each current account in proportion to the
amounts of the advances.
[14] Section 66 Powers of Protective Commissioner as to property in New
South Wales of incapable persons in reciprocating states
Omit ", charges and expenses" from section 66 (2) (a).
[15] Section 75 Sale by protected person may be set aside
Omit "(within the meaning of the Mental Health Act 1958)" from section
75 (1).
[16] Section 77 Costs may be paid out of estate
Omit "and expenses" from section 77 (1) and (3).
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Protected Estates Amendment (Investment) Bill 2000
Schedule 1 Amendments
[17] Section 83
Insert after section 82:
83 Personal liability
A matter or thing done or omitted to be done by the Protective
Commissioner or any person acting under the direction of the
Protective Commissioner does not, if the matter or thing was
done or omitted in good faith for the purpose of executing this
or any other Act, subject the Protective Commissioner or
person so acting personally to any action, liability, claim or
demand.
[18] Section 84
Insert in appropriate order:
84 Savings and transitional provisions
Schedule 1 has effect.
[19] Schedule 1
Insert at the end of the Act:
Schedule 1 Savings and transitional provisions
(Section 84)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or
transitional nature consequent on the enactment of the
following Acts:
Protected Estates Amendment (Investment) Act 2000
(2) Any such provision may, if the regulations so provide, take
effect from the date of assent to the Act concerned or a later
date.
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Protected Estates Amendment (Investment) Bill 2000
Amendments Schedule 1
(3) To the extent to which any such provision takes effect from a
date that is earlier than the date of its publication in the Gazette,
the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other
than the State or an authority of the State), the rights of
that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State
or an authority of the State) in respect of anything done
or omitted to be done before the date of its publication.
Part 2 Provisions consequent on enactment of
Protected Estates Amendment (Investment)
Act 2000
2 Definition
In this Part:
amending Act means the Protected Estates Amendment
(Investment) Act 2000.
3 Interest Account
Any money to the credit of the Interest Account referred to in
section 54 (as in force immediately before its repeal by the
amending Act) is to be paid into the current accounts in the
trust fund in proportion to the amounts invested from those
accounts and the period of each investment.
4 Estates Guarantee and Reserve Account
All money to the credit of the Estates Guarantee and Reserve
Account referred to in section 55 (as in force immediately
before its repeal by the amending Act) is to be paid into the
reserve fund.
5 Investment of funds
Pending the establishment of the first investment fund under
Part 4 (as replaced by the amending Act), the trust fund is taken
to be an investment fund.
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Protected Estates Amendment (Investment) Bill 2000
Schedule 1 Amendments
6 Advances
Part 4 (as replaced by the amending Act) applies to and in
respect of any advance made before the commencement of that
Part in the same way as it applies to and in respect of any
advance made after that commencement.
Page 12
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