NSW Public Trustee and Guardian Act 2009 NSW TRUSTEE AND GUARDIAN REGULATION 2008 - Made under the NSW Public Trustee and Guardian Act 2009 - As at 25 June 2010 - Reg 364 of 2008 TABLE OF PROVISIONS TABLE OF PROVISIONS PART 1 - PRELIMINARY 1. Name of Regulation 2. Commencement 3. Definitions PART 2 - FEES, COMMISSIONS AND CHARGES FOR TRUST MATTERS Division 1A - Application 3A. Application of Part Division 1 - Fees 4. Taxation returns 5. Real estate inspections and valuations 6. Dealings affecting shares in an estate 7. Attendance fees 8. Work done if representation not subsequently obtained 9. Attempted realisation of assets 10. Carrying on business 11. Administration account and audit fee 12. Remuneration of registrars of Local Court 13. Fee for management of common fund 14. Fee for trust investment planning 15. Trust fee for long-term trusts Division 2 - Scales of commission 16. Commission where NSW Trustee realises capital 17. Commission on capital realised by former trustees 18. Commission on unrealised property 19. Commission on income 20. Commission where NSW Trustee acts as attorney or agent 21. Locating beneficiaries Division 3 - Charges 22. Charges incidental to exercise of power of sale 23. Execution of documents 24. Production of documents 25. Search of records 26. Legal advice and proceedings 27. General power to charge for services Division 4 - General 28. Fees cumulative 29. Amount of fees to be determined by NSW Trustee 30. (Repealed) 31. Deduction of fees etc from funds 32. GST may be added to fees, commission or charges PART 3 - OTHER MATTERS RELATING TO DECEASED ESTATES 33. Application of Part 34. Index of wills 35. Small estates etc 36. Notices and elections under Division 1 of Part 3.2 of the Act 36A. Notice of administration of certain small estates 36B. Reciprocal arrangement for intestacy PART 4 - MANAGED ESTATES 37. Interpretation 38. Fees payable to the NSW Trustee 39. Information relating to mental health inquiry 40. Form of order or interim order that estate be managed under the Act 41. Medical superintendent to notify NSW Trustee of certain orders 42. Medical superintendent to notify NSW Trustee of certain events 43. Review by ADT of estate management decisions of NSW Trustee 44. Copies of wills 45. Information that missing person is alive 46. Restriction on NSW Trustee’s discretion to deal with certain estates—prescribed amount: section 95 (1) (a) 47. Reciprocal arrangement for interstate protected person PART 5 - TRANSITIONAL PROVISIONS 48. Distribution of interest to common funds 49. Allocation of Interest Suspense Account SCHEDULE 1 SCHEDULE 2 SCHEDULE 3 NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 1 Name of Regulation 1 Name of Regulation This Regulation is the NSW Trustee and Guardian Regulation 2008. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 2 Commencement 2 Commencement This Regulation commences on 1 September 2008. Note: This Regulation replaces the Public Trustee Regulation 2001 which is repealed on 1 September 2008 by section 10 (2) of the Subordinate Legislation Act 1989. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 3 Definitions 3 Definitions (1) In this Regulation: "estate", in Parts 2 and 3, includes trust or fund. "the Act" means the NSW Trustee and Guardian Act 2009. "trustee" includes an administrator or executor or any other person acting in a similar fiduciary capacity. (2) Notes in the text of this Regulation do not form part of this Regulation. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 3A Application of Part 3A Application of Part This Part applies to trust matters and matters other than matters relating to managed estates. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 4 Taxation returns 4 Taxation returns If, in any estate in respect of which the NSW Trustee acts either solely or jointly with any other person or persons as trustee, returns are required by any authority of the Commonwealth or of this or any other State or Territory for the purpose of assessment of any tax or duty, the NSW Trustee may charge to the estate: (a) an investigation fee, and (b) an additional fee for each return lodged, that the NSW Trustee determines to be appropriate. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 5 Real estate inspections and valuations 5 Real estate inspections and valuations The NSW Trustee may charge the following fees: (a) a fee (not exceeding $150 per hour) for any inspection, valuation or report regarding real estate, (b) a fee (not exceeding $150 per hour) for preparation of specifications for repairs or renovations to any building or work, (c) a fee (not exceeding $116 per hour) for a second or subsequent inspection (including a report arising from the inspection) on the progress of any such repairs or renovations. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 6 Dealings affecting shares in an estate 6 Dealings affecting shares in an estate (1) The NSW Trustee may charge a fee (not exceeding $68) for the notation and recording of the assignment or mortgage of, or of any dealing affecting, a beneficiary’s share in an estate. (2) Any such fee is payable from the share of the beneficiary concerned. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 7 Attendance fees 7 Attendance fees The NSW Trustee may charge the following fees: (a) a fee (not exceeding $40) for attending at the Office of State Revenue for the purpose of search, or of marking or stamping documents, or at Land and Property Information New South Wales for the purpose of search, or of lodging or uplifting documents, (b) a fee (not exceeding $75) for obtaining an exemplification of grant of probate or administration and preparation of a power of attorney for the purpose of collecting assets situated outside New South Wales, (c) a fee (not exceeding $150 per hour) for any other attendances outside the offices used by members of staff. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 8 Work done if representation not subsequently obtained 8 Work done if representation not subsequently obtained If, for the purpose of obtaining representation in an estate, the NSW Trustee takes steps incidental to the NSW Trustee’s duties but does not subsequently obtain representation, the NSW Trustee may charge to the estate a fee (not exceeding $450) for the work involved. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 9 Attempted realisation of assets 9 Attempted realisation of assets If: (a) the NSW Trustee attempts, at the request of a beneficiary, to realise an asset in an estate, and (b) the asset is subsequently transferred or delivered unconverted into money to the beneficiary, the NSW Trustee may charge to the estate a fee (not exceeding $300) for the work involved. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 10 Carrying on business 10 Carrying on business If the NSW Trustee finds it necessary to carry on a business in connection with the NSW Trustee’s administration of an estate, the NSW Trustee may charge to the estate a fee that, having regard to the work involved, the NSW Trustee considers just and reasonable. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 11 Administration account and audit fee 11 Administration account and audit fee The NSW Trustee may, on a monthly basis, charge to an estate administered by the NSW Trustee an administration account and audit fee (not exceeding $10) on each account kept by the NSW Trustee in respect of the estate. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 12 Remuneration of registrars of Local Court 12 Remuneration of registrars of Local Court If the NSW Trustee appoints a Local Court registrar to act as agent of the NSW Trustee in respect of the administration of an estate, the NSW Trustee may charge to the estate such fee as the NSW Trustee considers just and reasonable to cover the remuneration payable to the registrar for acting as such an agent. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 13 Fee for management of common fund 13 Fee for management of common fund (1) The NSW Trustee is entitled to receive from or out of the income received by a common fund under the Act in respect of matters to which this Part applies a fee (according to the value of the work done and the services rendered) for the establishment, keeping (including the keeping of books of account) and conduct of the common fund in respect of matters to which this Part applies. (2) The fee is to be calculated at a rate not exceeding 1.0% per year on the capital sums invested in the common fund in respect of matters to which this Part applies during the period in respect of which the income is received or allocated. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 14 Fee for trust investment planning 14 Fee for trust investment planning The NSW Trustee may charge a fee (not exceeding $150 per hour) for preparing, managing and reviewing an investment plan in respect of a trust. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 15 Trust fee for long-term trusts 15 Trust fee for long-term trusts (1) The NSW Trustee is entitled to receive an annual trust fee in respect of any trust (other than a charitable trust) committed to its administration or management for 2 years or more, not exceeding the maximum fee determined in accordance with subclause (2). (2) The maximum annual trust fee is: (a) if the corpus or capital value of the trust property at the time of calculation is $250,000 or less, an amount equal to 0.5% of the corpus or capital value, or (b) if the corpus or capital value of the trust property at the time of calculation is greater than $250,000 and not more than $500,000, an amount equal to the sum of: (i) $1,250, and (ii) 0.75% of the amount by which the corpus or capital value exceeds $250,000, or (c) if the corpus or capital value of the trust property at the time of calculation is more than $500,000, an amount equal to the sum of: (i) $3,125, and (ii) 1% of the amount by which the corpus or capital value exceeds $500,000. (3) The trust fee to which the NSW Trustee is entitled under this clause is to be paid by quarterly or half-yearly instalments, as determined by the NSW Trustee, by such dates as are determined by the NSW Trustee. (4) A quarterly instalment is to be equal to one-quarter, and a half- yearly instalment to one-half, of the annual fee. However, if the NSW Trustee administers or manages a trust to which this clause applies for only part of the quarter or half-year period to which an instalment relates, the amount of the instalment is to be reduced on a pro rata basis, according to the proportion that the period of the NSW Trustee’s administration or management of the trust in that quarter or half-year bears to 3 or 6 months, respectively. (5) The annual trust fee to which the NSW Trustee is entitled under this clause may be paid wholly from the corpus or capital, or wholly from the income, of the trust property or partly from the corpus or capital of the trust property and partly from the income of the trust property. (6) The NSW Trustee is to consult with the beneficiaries, if it is practicable to do so, before determining from where a trust fee is to be paid. The NSW Trustee must attempt such consultation at least once every two years. (7) In this clause: "charitable trust" means a trust established for charitable purposes and includes a trust established for charitable purposes and also for non-charitable purposes. "corpus or capital value", in relation to a trust committed to the administration or management of the NSW Trustee, means the gross amount of the value of the assets (whether real or personal) of the trust without deduction of debts or liabilities secured or unsecured. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 16 Commission where NSW Trustee realises capital 16 Commission where NSW Trustee realises capital (1) The NSW Trustee is authorised to charge to an estate commission in respect of any matter in which the NSW Trustee is appointed or acts (either solely or jointly with any other person or persons) as trustee in respect of the estate, calculated at the rate of: (a) 4% on the first $100,000, and (b) 3% on the next $100,000, and (c) 2% on the next $100,000, and (d) 1% on any amount exceeding $300,000. (2) The NSW Trustee may impose a minimum charge under this clause of $250 in respect of an estate. (3) Commission under this clause is payable on a capital asset at the time it is realised unless the NSW Trustee directs that payment be deferred, either wholly or partially, until the period of any distribution. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 17 Commission on capital realised by former trustees 17 Commission on capital realised by former trustees (1) The NSW Trustee is authorised to charge to an estate commission, at the rate of: (a) 4% on the first $100,000, and (b) 3% on the next $100,000, and (c) 2% on the next $100,000, and (d) 1% on any amount exceeding $300,000, on such of the capital of the estate realised by a former trustee as becomes vested in the NSW Trustee. (2) The NSW Trustee may impose a minimum charge under this clause of $250 in respect of an estate. (3) Commission under this clause is payable on a capital asset as at the time it becomes vested in the NSW Trustee unless the NSW Trustee directs that payment be deferred, either wholly or partially, until the period of any distribution. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 18 Commission on unrealised property 18 Commission on unrealised property (1) The NSW Trustee is authorised to charge to an estate commission on the value (as fixed by the NSW Trustee) of unrealised real or personal property (except money) transferred or delivered unconverted into money to a devisee, legatee, beneficiary, widower, widow, next of kin or other similar class of person, under any will, settlement, trust or intestacy administered by the NSW Trustee in respect of the estate, calculated at the rate of: (a) 4% on the first $100,000, and (b) 3% on the next $100,000, and (c) 2% on the next $100,000, and (d) 1% on any amount exceeding $300,000. (2) The NSW Trustee may impose a minimum charge under this clause of $250 in respect of an estate. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 19 Commission on income 19 Commission on income (1) The NSW Trustee is authorised to charge to an estate (other than a trust to which clause 15 applies) commission on the gross amount of income received by the NSW Trustee in respect of any matter in which the NSW Trustee is acting as trustee in respect of the estate. (2) The commission is to be calculated at the rate of: (a) except as provided by paragraph (b)—5.25%, or (b) in the case of gross income received by way of rent that is subject to an agency charge for collection—2.5%. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 20 Commission where NSW Trustee acts as attorney or agent 20 Commission where NSW Trustee acts as attorney or agent The commission that is payable to the NSW Trustee in any matter in which the NSW Trustee is acting as attorney or agent is, in respect of both capital and income, to be as arranged between the principals and the NSW Trustee. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 21 Locating beneficiaries 21 Locating beneficiaries (1) If: (a) the existence or identity of any or all of the persons beneficially entitled to share in an estate or of the next of kin is unknown or is not definitely established, and (b) it is necessary for the NSW Trustee to make inquiries or to advertise for the purpose of locating any such persons or next of kin, the NSW Trustee is authorised to charge to the estate, or to the share of the estate in respect of which it is necessary to make inquiries or advertise, a commission that the NSW Trustee considers just and reasonable. (2) The amount of the commission is not to exceed 5% of the net value of the estate after payment of original claims. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 22 Charges incidental to exercise of power of sale 22 Charges incidental to exercise of power of sale (1) If, in respect of an estate, the NSW Trustee is authorised by an order of a court to sell land, the NSW Trustee may (unless otherwise directed by the court) impose a charge on the estate. (2) If the land is sold, the charge on the estate is not to exceed: (a) 4% on the first $100,000, and (b) 3% on the next $100,000, and (c) 2% on the next $100,000, and (d) 1% on any amount exceeding $300,000. (3) If the land is not sold, the amount that may be charged is not to exceed $450. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 23 Execution of documents 23 Execution of documents The NSW Trustee may (except in respect of an estate administered by the NSW Trustee) impose the following charges in respect of the execution of documents: (a) a charge (not exceeding $68) for executing any assurance of property by direction, (b) a charge (not exceeding $68) for executing any assurance by way of confirmation, (c) a charge (not exceeding $68) for executing any necessary consent for a mortgagee to exercise powers in respect of a mortgage. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 24 Production of documents 24 Production of documents The NSW Trustee may impose a charge (not exceeding $40) for producing any deeds or documents of title. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 25 Search of records 25 Search of records (1) The NSW Trustee may impose a charge for making a search of records held by the NSW Trustee in any case in which, in the opinion of the NSW Trustee, an amount should be charged because of the time involved or of the nature or volume of the information sought. (2) The amount that may be charged is not to exceed $150 per hour. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 26 Legal advice and proceedings 26 Legal advice and proceedings The NSW Trustee may charge to an estate an amount to cover all costs and expenses incurred by the NSW Trustee in providing any legal advice, or in conducting any legal proceedings, in connection with that estate. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 27 General power to charge for services 27 General power to charge for services The NSW Trustee may charge such amount, for any service or matter not otherwise mentioned in this Regulation, as is agreed on or (in the absence of agreement) as the NSW Trustee determines to be just and reasonable. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 28 Fees cumulative 28 Fees cumulative Any fee, commission or charge that is payable from an estate under a provision of this Part is additional to any other fee, commission or charge, and to any other cost or expense, that is payable from the estate. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 29 Amount of fees to be determined by NSW Trustee 29 Amount of fees to be determined by NSW Trustee The amount of any fee, commission or charge payable in any particular case is, subject to this Part, to be determined by the NSW Trustee. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 31 Deduction of fees etc from funds 31 Deduction of fees etc from funds The NSW Trustee may deduct any fee, commission or charge that is payable under this Part in connection with an estate from any money that belongs to the estate and that is held by the NSW Trustee or is under the NSW Trustee’s control. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 32 GST may be added to fees, commission or charges 32 GST may be added to fees, commission or charges (1) The NSW Trustee may, in addition to any fee, commission or charge payable under this Part, charge the amount of any GST payable in respect of the service for which the fee, commission or charge is payable. (2) Subclause (1) does not permit the NSW Trustee to charge an amount that is greater than: (a) 10% of the maximum amount payable to the NSW Trustee apart from that subclause, or (b) the amount permitted under the New Tax System Price Exploitation law, whichever is the lesser. (3) This clause has effect despite any other provision of this Part limiting an amount that may be charged by the NSW Trustee. (4) In this clause: "GST" has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth. "New Tax System Price Exploitation law" means: (a) the New Tax System Price Exploitation Code, as applied as a law of New South Wales by the Price Exploitation Code (New South Wales) Act 1999, or (b) Part VB of the Trade Practices Act 1974 of the Commonwealth. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 33 Application of Part 33 Application of Part This Part applies to trust matters. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 34 Index of wills 34 Index of wills The NSW Trustee is to maintain an index of all wills lodged with the NSW Trustee for safe custody. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 35 Small estates etc 35 Small estates etc (1) For the purposes of sections 26 and 27 of the Act, the NSW Trustee may administer property or an estate (as referred to in the subsection concerned) by election if the gross value of the property or estate does not exceed $100,000. (2) For the purposes of section 28 of the Act, the NSW Trustee must file a memorandum and obtain probate or letters of administration as referred to in that subsection if the gross value of the property to be administered exceeds $120,000. (3) For the purposes of section 31 of the Act, the NSW Trustee may deal with an estate without probate or administration if the net value of the estate does not exceed $20,000. (4) For the purposes of section 18 of the Act, the NSW Trustee may deal with money payable by the NSW Trustee in the manner referred to in that subsection if the amount of the money does not exceed $20,000. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 36 Notices and elections under Division 1 of Part 3.2 of the Act 36 Notices and elections under Division 1 of Part 3.2 of the Act (1) A notice of an election under Division 1 of Part 3.2 of the Act must state that the election has been made and may contain any other particulars of the election that the NSW Trustee thinks fit. (2) A notice of an election under Division 1 of Part 3.2 of the Act must be published: (a) if the deceased person resided in New South Wales at the date of death—in a newspaper circulating in the area where the deceased resided, or (b) in any other case—in a Sydney daily newspaper. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 36A Notice of administration of certain small estates 36A Notice of administration of certain small estates The NSW Trustee is to give such notice, by advertisement or otherwise as it thinks fit, of its intention to act under section 31 of the Act. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 36B Reciprocal arrangement for intestacy 36B Reciprocal arrangement for intestacy New Zealand is prescribed as a reciprocating State for the purposes of section 35 of the Act. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 37 Interpretation 37 Interpretation Words and expressions used in this Part have the same meaning as they have in the Mental Health Act 2007. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 38 Fees payable to the NSW Trustee 38 Fees payable to the NSW Trustee (1) The prescribed fees payable to the NSW Trustee in respect of the management of estates of managed persons are as follows: (a) for the management of an estate: (i) for the first year—2.1% of the value of the estate, and (ii) for every subsequent year—1.1% of the value of the estate, (b) for the management of an investment for a managed person in a common fund—0.5% per annum of the value of the investment, (c) on the net annual income of a managed person in respect of whom a manager of the estate (other than the NSW Trustee) has been appointed—4% per annum, (d) for the investigation, preparation or lodgment of a return required by a taxation authority in respect of an estate in which the NSW Trustee acts—such reasonable fee for the investigation, preparation or lodgment as the NSW Trustee may fix, (e) for the development of a financial plan for a person in respect of whom a manager of the estate has been appointed—such reasonable fee as the NSW Trustee may fix, (f) for filing, examination and passing of accounts—such fee (not exceeding $300) as the NSW Trustee may fix, (g) for any other service provided, or any other disbursement incurred, by the NSW Trustee in the administration of an estate—such reasonable fee as the NSW Trustee may fix. (2) The NSW Trustee must certify to the manager of an estate of a managed person: (a) the annual amount of the fee payable to the NSW Trustee under subclause (1) (c), and (b) the name of the person who is required to pay the fee, and (c) the time within which the fee is to be paid. (3) The NSW Trustee may, in addition to any fee prescribed under subclause (1), charge the amount of any GST payable in respect of the service for which the fee is payable. (4) Subclause (3) does not permit the NSW Trustee to charge an amount that is greater than: (a) 10% of the maximum amount payable to the NSW Trustee apart from that subclause, or (b) the amount permitted under the New Tax System Price Exploitation law, whichever is the lesser. (5) In this clause: "GST" has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth. "New Tax System Price Exploitation law" means: (a) the New Tax System Price Exploitation Code, as applied as a law of New South Wales by the Price Exploitation Code (New South Wales) Act 1999, or (b) Part VB of the Trade Practices Act 1974 of the Commonwealth. "value" means: (a) in relation to a managed person’s estate (other than a managed missing person), the gross amount of the value of the assets (whether real or personal) of the estate without deduction of debts or liabilities secured or unsecured, but does not include the value of the person’s principal place of residence, or (b) in relation to a managed missing person’s estate, the gross amount of the value of the assets (whether real or personal) of the estate without deduction of debts or liabilities secured or unsecured, but does not include the value of the person’s last known principal place of residence. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 39 Information relating to mental health inquiry 39 Information relating to mental health inquiry (1) For the purposes of section 43 (a) of the Act, the prescribed information to be given is that specified in Schedule 1. (2) For the purposes of section 43 (b) of the Act, the prescribed information to be given is that specified in Schedule 2. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 40 Form of order or interim order that estate be managed under the Act 40 Form of order or interim order that estate be managed under the Act (1) The Magistrate or MHRT is to complete a notice of an order or interim order made by the Magistrate or MHRT that the estate of a person be subject to management under the Act. (2) The notice is to be in the form specified in Schedule 3. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 41 Medical superintendent to notify NSW Trustee of certain orders 41 Medical superintendent to notify NSW Trustee of certain orders (1) The medical superintendent of a mental health facility must give written notice to the NSW Trustee of the making of an order or interim order by a Magistrate or the MHRT to the effect that the estate of a patient be subject to management under the Act. (2) The medical superintendent must give the written notice within 7 days of the making of any such order and must attach a copy of the order to the notice. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 42 Medical superintendent to notify NSW Trustee of certain events 42 Medical superintendent to notify NSW Trustee of certain events The medical superintendent of a mental health facility must, as soon as practicable, give written notice to the NSW Trustee of the occurrence of any of the following events in respect of a patient who is or was a managed person: (a) the patient’s discharge from the mental health facility, (b) the patient’s transfer from the mental health facility, (c) the patient’s absence with or without leave from the mental health facility, (d) the patient’s return to the mental health facility from leave, (e) the patient’s death at the mental health facility. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 43 Review by ADT of estate management decisions of NSW Trustee 43 Review by ADT of estate management decisions of NSW Trustee All decisions made by the NSW Trustee in connection with the exercise of the NSW Trustee’s functions under Division 1 of Part 4.5 of the Act are prescribed for the purposes of section 62 of the Act. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 44 Copies of wills 44 Copies of wills For the purposes of section 80 (1) of the Act, a copy of a will may be certified as a true copy of the will by any person of or over the age of 18 years. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 45 Information that missing person is alive 45 Information that missing person is alive For the purposes of section 91 (3) of the Act, the NSW Trustee may take into account any relevant information provided by the Commissioner of Police for the purposes of being satisfied that a managed missing person is alive. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 46 Restriction on NSW Trustee’s discretion to deal with certain estates—prescribed amount: section 95 (1) (a) 46 Restriction on NSW Trustee’s discretion to deal with certain estates—prescribed amount: section 95 (1) (a) For the purposes of section 95 (1) (a) of the Act, the prescribed amount is $10,000. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 47 Reciprocal arrangement for interstate protected person 47 Reciprocal arrangement for interstate protected person New Zealand is prescribed as a reciprocating State for the purposes of section 81 of the Act. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 48 Distribution of interest to common funds 48 Distribution of interest to common funds For the purposes of clause 14 (5) (a) of Schedule 1 to the Act, a further period of 12 months is prescribed for the continued application of section 36A (4) of the Public Trustee Act 1913 to the distribution of interest to accounts forming part of an existing common fund established under the Public Trustee Act 1913. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - REG 49 Allocation of Interest Suspense Account 49 Allocation of Interest Suspense Account Despite clause 16 (1) of Schedule 1 to the Act, the NSW Trustee must determine the allocation of funds from the Interest Suspense Account under that subclause before 1 July 2011. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - SCHEDULE 1 SCHEDULE 1 – Information to be given to person detained (Clause 39 (1)) If the Magistrate directs that you are to be detained in a mental health facility, the Magistrate will then decide if you are able to manage your property and affairs. You have the right to have a barrister or solicitor represent you before the Magistrate. If you do not want a barrister or solicitor, you can have another person of your choice represent you, but you can only do this if the Magistrate agrees. If the Magistrate thinks that you are able to manage your property and affairs, you can continue to do so. However, if you wish, you can have the NSW Trustee and Guardian manage your property and affairs. You can ask the medical superintendent to arrange for the NSW Trustee and Guardian to do this. If the Magistrate decides that you are not able to manage your property and affairs, the Magistrate will order that your property and affairs be managed by the NSW Trustee and Guardian. If you do not agree with the Magistrate’s decision that your property and affairs should be managed by the NSW Trustee and Guardian, you have the right to appeal to the Supreme Court. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - SCHEDULE 2 SCHEDULE 2 – Information to be given to nearest relative, guardian and friends of person detained (Clause 39 (2)) If the Magistrate considers the patient should be further detained, the Magistrate will also consider whether or not the patient is able to manage his or her property and affairs. If the Magistrate considers that the patient is able to manage his or her property and affairs, then the patient can continue to do so. The patient can ask that his or her property and affairs be managed by the NSW Trustee and Guardian. If the Magistrate is not satisfied that the patient can manage his or her property and affairs, then the Magistrate will make an order that the NSW Trustee and Guardian manage the patient’s property and affairs. If the patient does not agree with the Magistrate’s decision that his or her property and affairs should be managed by the NSW Trustee and Guardian, the patient has a right to appeal to the Supreme Court. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - SCHEDULE 3 SCHEDULE 3 – Notice of order or interim order for management (Clause 40 (2)) An order*/interim order* has been made today that the estate of [name] be subject to management under the NSW Trustee and Guardian Act 2009. Date [Signature and name of Magistrate]* [Signatures and names of Members of Mental Health Review Tribunal]* [* Delete if inapplicable] NSW TRUSTEE AND GUARDIAN REGULATION 2008 - NOTES Public Trustee Regulation 2008 NSW TRUSTEE AND GUARDIAN REGULATION 2008 - NOTES Note: The NSW Trustee and Guardian Regulation 2008 (formerly Public Trustee Regulation 2008) made under the Public Trustee Act 1913 is on and from 1.7.2009 taken to be a regulation under the NSW Trustee and Guardian Act 2009. See clause 8 of Schedule 1 to the NSW Trustee and Guardian Act 2009. NSW TRUSTEE AND GUARDIAN REGULATION 2008 - NOTES Historical notes The following abbreviations are used in the Historical notes: ______________________________________________________________________ |______________________________________________________________________| |______________________________________________________________________| |______________________________________________________________________| |______________________________________________________________________| |______________________________________________________________________| |______________________________________________________________________| |______________________________________________________________________| Table of amending instrumentsNSW Trustee and Guardian Regulation 2008 (364) (formerly Public Trustee Regulation 2008). GG No 100 of 22.8.2008, p 7828. Date of commencement, 1.9.2008, cl 2. This Regulation has been amended as follows: ____________________________________________________________________________ | | |Public Trustee Amendment Regulation 2008. GG No 155 of 5.12.2008,| |2008|(555)|p 11731. | | | | | |____________________________________________________________________________| | | |Public Trustee Amendment Regulation 2009. LW 1.7.2009. | |2009|(308)| | |____________________________________________________________________________| | | |NSW Trustee and Guardian Amendment (Reciprocal Arrangements) | |2010|(276)|Regulation 2010. LW 25.6.2010. | | | | | |____________________________________________________________________________| | | |NSW Trustee and Guardian Amendment (Transitional Periods) | | |(277)|Regulation 2010. LW 25.6.2010. | | | | | |____________________________________________________________________________| Table of amendments __________________________________________________________________________ |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |Cl 15 |Am 2008 (555), cl 2; 2009 (308), Sch 1 | |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |__________________________________________________________________________| |The whole Regulation (except cl 2,|Am 2009 (308), Sch 1 [1] (“Public | |note) |Trustee” omitted wherever occurring, | |__________________________________________________________________________|