New South Wales Consolidated Acts

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      (Repealed)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