NSW TRUSTEE AND GUARDIAN ACT 2009 - As at 30 October 2023 - Act 49 of 2009

Table of Provisions

• Long Title

CHAPTER 1 - PRELIMINARY

• 1 Name of Act
• 2 Commencement
• 3 Definitions
4. (Repealed)

CHAPTER 2 - CONSTITUTION OF NSW TRUSTEE

PART 2.1 - CONSTITUTION AND MANAGEMENT OF NSW TRUSTEE

• 5 Constitution of NSW Trustee and Guardian
• 6 Status of NSW Trustee
• 7 Chief Executive Officer
• 8 Acting Chief Executive Officer
• 9 Delegation

PART 2.2 - GENERAL FUNCTIONS

• 10 Functions generally
• 11 General trustee and other functions
• 12 Appointment as trustee
• 13 Refusal of appointment as trustee or manager
• 14 Court may waive consent requirement for appointment
• 15 Functions exercised jointly
• 16 Powers of NSW Trustee relating to property and other matters
• 17 Power to use funds for benefit of minors and other incapable persons
• 18 Power to pay small amounts of money due to deceased persons
• 19 No bond by NSW Trustee
• 20 Appointment of agents and other persons
• 21 NSW Trustee may sue itself in another capacity

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
• 23 Intestacy where no letters of administration
• 24 Transfer of administration of estate to NSW Trustee
• 25 Administration of estates in cases of supposed deaths

PART 3.2 - SMALL ESTATES

Division 1 - Elections to administer small estates

• 26 Election to administer where no previous executor or administrator
• 27 Election to administer where previous executor or administrator
• 28 Estate not small estate
• 29 Discovery of later will
• 30 Notices and elections

Division 2 - Small estates for which probate or administration not required

• 31 No probate or administration required

PART 3.3 - GENERAL

• 32 NSW Trustee not required to file accounts
• 33 Entitlement to costs
• 34 Proceeds of sale of goods of third person
• 35 Reciprocal arrangements for intestacy
• 36 Appointment of other persons to conduct business of estate
• 37 Disclosure of property to NSW Trustee

CHAPTER 4 - MANAGEMENT FUNCTIONS RELATING TO PERSONS INCAPABLE OF MANAGING THEIR AFFAIRS

PART 4.1 - PRELIMINARY

• 38 Interpretation
• 39 General principles applicable to Chapter
• 40 Orders for management may apply to part of estate

PART 4.2 - ORDERS BY SUPREME COURT THAT ESTATES OF PERSONS SUBJECT TO MANAGEMENT

• 41 Orders by Supreme Court for management of affairs
• 42 Orders relating to persons outside New South Wales

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
• 44 Consideration of capability to manage affairs at mental health inquiries
• 45 Consideration of capability of forensic patients to manage affairs
• 46 Other orders by MHRT
• 47 Interim orders
• 48 MHRT may review interim orders
• 49 Appeals to Supreme Court against management orders
• 50 Appeals to NCAT against estate management orders made by MHRT
• 51 Notice of reasons for orders and appeal rights
• 52 Estates committed to management of the NSW Trustee

Division 2 - Applications by patients who are not protected persons

• 53 NSW Trustee may undertake management of estates of certain patients

PART 4.4 - ORDERS FOR MANAGEMENT OF ESTATES OF MISSING PERSONS

• 54 Declaration and order where person missing

PART 4.5 - MANAGEMENT OF ESTATES

Division 1 - Management of estates by NSW Trustee

• 55 Application of Division
• 56 General management functions
• 57 NSW Trustee has all functions of managed person
• 58 Execution of documents for managed persons
• 59 Application of money of managed estates
• 60 Arrangements during absence of patient from mental health facility
• 61 Supreme Court may give directions to NSW Trustee
• 62 Administrative review by NCAT of decisions by NSW Trustee under this Division

Division 2 - Management of estates by other persons

• 63 Application of Division
• 64 Orders by Supreme Court and NSW Trustee as to management of estates
• 65 Orders by Supreme Court and NSW Trustee as to property
• 66 NSW Trustee may authorise and direct functions of other managers
• 67 Managers may execute documents
• 68 Security may be required in respect of estate management
• 69 Managers may lodge estate funds with NSW Trustee
• 70 Administrative review by NCAT of decisions by NSW Trustee in relation to managers

Division 3 - Management of estates generally

• 71 Managed person cannot deal with estate
• 72 Consultation by NSW Trustee
• 73 Temporary provision for maintenance
• 74 Financial plans
• 75 Personal items to be preserved
• 76 Gifts
• 77 Improvements of estate property may be charged on estate
• 78 Enforcement of trustee powers
• 79 Supreme Court may dissolve partnership of managed person
• 80 Manager may obtain copy of will
• 81 Reciprocal arrangements for management of estates
• 82 Protection of interests of managed person on partition
• 83 Protection of interests in property of beneficiaries and other persons
• 84 Powers of attorney

PART 4.6 - SUSPENSION OR TERMINATION OF MANAGEMENT

Division 1 - Revocation of management orders

• 85 Termination by revocation of orders
• 86 Revocation of orders by Supreme Court
• 87 Orders where person no longer missing
• 88 Revocation of order by MHRT

Division 2 - Termination by NSW Trustee

• 89 NSW Trustee may terminate management of protected persons or patients
• 90 Continuation of management after discharge etc
• 91 NSW Trustee may terminate management where person no longer missing
• 92 NSW Trustee may terminate management of patients who are not protected persons

Division 3 - Termination on death

• 93 Termination on death of person
• 94 Estate to be handed over to legal representative of deceased person
• 95 Amounts may be paid to beneficiaries or other persons
• 96 NSW Trustee may complete transactions

Division 4 - General matters relating to termination of management of estates

• 97 NSW Trustee may continue to act after termination event occurs
• 98 Estate to be handed over on termination of management
• 99 Protected person or legal representative bound by acts of NSW Trustee
• 100 Unclaimed personal effects and money

CHAPTER 5 - INVESTMENTS AND FUNDS

PART 5.1 - INVESTMENTS

• 101 Investment of trust and protective funds
• 102 Additional investment powers of managers relating to protective funds

PART 5.2 - COMMON FUNDS AND RESERVE FUND

• 103 Separate accounts to be kept
• 104 Common funds
• 105 Amounts that may be included in common funds
• 106 Application of income of common funds
• 107 Policies about common funds
• 108 Operation of common fund
• 109 Reserve Fund
• 110 Advances

CHAPTER 6 - GENERAL

PART 6.1 - FEES AND CHARGES

• 111 Fees
• 112 Payment of costs and fees from trust property
• 113 Payment of costs relating to management of estates by NSW Trustee
• 114 Costs may be recovered on summary application to Court
• 115 Supreme Court or NSW Trustee may order certain costs to be paid out of managed estate

PART 6.2 - MISCELLANEOUS

• 116 NSW Trustee may require information and documents to be provided
• 117 Supreme Court may set aside dealing by patient
• 118 Orders and directions of NSW Trustee must be complied with
• 119 Service of orders on NSW Trustee
• 120 Payment of liabilities
• 121 Personal liability
• 122 Evidentiary provisions
• 123 Directions by NSW Trustee as to visitors
• 124 Service of documents on NSW Trustee
• 125 Nature of proceedings for offences
• 126 Submission of budgets
• 127 Savings, transitional and other provisions
• 128 Regulations
• SCHEDULE 1
Schedule 2 (Repealed)
• SCHEDULE 3