public trustee (public trustee and guardian) amendment bill 2020

(4b) Subject to this Act, the terms and conditions of appointment and employment (including salary and allowances) of the Public Trustee and Guardian will be as determined by the Governor.

(4c) The Public Trustee and Guardian will be appointed for a term (not exceeding 7 years) and, on the expiration of a term of office, is eligible for reappointment.

(4d) The office of Public Trustee and Guardian becomes vacant if the Public Trustee and Guardian—

(a) dies; or

(b) completes a term of office and is not reappointed; or

(d) is removed from office by the Governor under subsection (4e)

(4e) The Governor may remove the Public Trustee and Guardian from office for—

(a) mental or physical incapacity to carry out official duties satisfactorily; or

(b) neglect of duty; or

(6) Section 4(5)—after "Public Trustee" wherever occurring insert:

and Guardian

(7) Section 4—after subsection (5) insert:

(6) To avoid doubt, the Public Trustee and Guardian is the same body corporate as the Public Trustee under the Public Trustee Act 1995

, as in force immediately before the commencement of the Public Trustee (Public Trustee and Guardian) Amendment Act 2020

9—Amendment of section 5—Functions and powers

(1) Section 5—after "Public Trustee" wherever occurring insert:

and Guardian

(2) Section 5(2) and (3)—delete subsections (2) and (3) and substitute:

(2) The Public Trustee and Guardian has the following functions:

(a) to act as a trustee, executor of a will, administrator of an estate (whether or not of a deceased person), manager, receiver, committee, curator, guardian, next friend, agent, attorney or stakeholder;

(b) to act as guardian of last resort for persons with a mental incapacity;

(i) the powers that may be exercised in respect of persons with a mental incapacity, or impaired decision-making capacity, under the Guardianship and Administration Act 1993

, the Advance Care Directives Act 2013

and the Consent to Medical Treatment and Palliative Care Act 1995

; and

(ii) the operation of those Acts generally; and

(iii) appropriate alternatives to taking action under those Acts;

(d) to provide dispute resolution services in relation to advance care directives and consent to medical treatment in accordance with provisions of the Advance Care Directives Act 2013

and the Consent to Medical Treatment and Palliative Care Act 1995

;

(e) to provide systemic advocacy in respect of the needs of mentally incapacitated persons, including—

(i) to keep under review, within both the public and the private sector, all programmes designed to meet the needs of mentally incapacitated persons; and

(ii) to identify any areas of unmet needs, or inappropriately met needs, of mentally incapacitated persons and to recommend to the Minister the development of programmes for meeting those needs or the improvement of existing programmes; and

(iii) to speak for and promote the rights and interests of any class of mentally incapacitated persons or of mentally incapacitated persons generally; and

(iv) to promote the interests of carers of mentally incapacitated persons; and

(v) to monitor the administration of the Guardianship and Administration Act 1993

and, if the Public Trustee and Guardian thinks fit, make recommendations to the Minister for legislative change;

(f) to provide individual advocacy in respect of the needs of mentally incapacitated persons, including—

(i) to speak for and negotiate on behalf of any mentally incapacitated person in the resolution of a problem faced by that person arising out of their mental incapacity; and

(ii) to give support to carers of mentally incapacitated persons; and

(iii) to make applications to SACAT, or to seek review of decisions made by SACAT, where the Public Trustee and Guardian considers it appropriate, in respect of the care and treatment of mentally incapacitated persons in accordance with provisions of the Guardianship and Administration Act 1993

, the Advance Care Directives Act 2013

, the Consent to Medical Treatment and Palliative Care Act 1995

or the Mental Health Act 2009

; and

(iv) to appear before SACAT on behalf of persons who are the subject of applications made under the Guardianship and Administration Act 1993

, the Advance Care Directives Act 2013

, the Consent to Medical Treatment and Palliative Care Act 1995

or the Mental Health Act 2009

;

(g) to investigate the affairs of a person who is the subject of an application for an order under Part 4 of the Guardianship and Administration Act 1993

, or who has had an advance care directive revoked by SACAT under the Advance Care Directives Act 2013

, if so directed by SACAT;

(h) to perform such other functions as are assigned to the Public Trustee and Guardian by or under this or any other Act, or by the Minister.

(3) The Public Trustee and Guardian acting in 1 capacity may, with the approval of the Court, commence or maintain proceedings against the Public Trustee and Guardian acting in another capacity.

(3) Section 5—after subsection (4) insert:

(5) The Public Trustee and Guardian may establish committees for the purpose of providing the Public Trustee and Guardian with advice in relation to the performance of any of the Public Trustee and Guardian's functions.

(6) A committee established under subsection (5)

will be taken to be an advisory body for the purposes of the Public Sector (Honesty and Accountability) Act 1995

10—Amendment of section 6—Ministerial control

(1) Section 6—after "Public Trustee" wherever occurring insert:

and Guardian

(2) Section 6(1)—after "policy" insert:

in respect of functions under section 5(2)(a)

(3) Section 6—after subsection (1) insert:

(1a) The Public Trustee and Guardian is not subject to control and direction by the Minister in respect of functions under—

(a) section 5(2)(b) to (g); and

(b) the Advance Care Directives Act 2013

; and

(d) the Criminal Law Consolidation Act 1935

; and

(e) the Guardianship and Administration Act 1993

relating to guardianship; and

(f) the Mental Health Act 2009

; and

(g) the Problem Gambling Family Protection Orders Act 2004

; and

(h) the Wills Act 1936

relating to acting as a guardian.

(1b) Except where the contrary intention appears, the Public Trustee and Guardian is subject to control and direction by the Minister on matters of policy in respect of any other function assigned to the Public Trustee and Guardian.

(4) Section 6(2)—delete "Public Trustee's" and substitute:

Public Trustee and Guardian's

11—Insertion of section 6A

After section 6 insert:

6A—Public Trustee and Guardian may raise matters with Minister and Attorney-General

(1) The Public Trustee and Guardian may, at any time, raise with the Minister and the Attorney-General any concerns the Public Trustee and Guardian may have over any matter arising out of or relating to the performance of the Public Trustee and Guardian's functions under this Act or any other Act.

(2) If the Public Trustee and Guardian so requests, the Attorney-General must cause a report of any matter raised by the Public Trustee and Guardian under subsection (1)

to be laid as soon as practicable before both Houses of Parliament.

(3) The annual report furnished by the Public Trustee and Guardian under this Act must include a summary of any matters raised by the Public Trustee and Guardian under subsection (1)

12—Amendment of section 7—Execution of documents

Section 7—after "Public Trustee" wherever occurring insert:

and Guardian

13—Amendment of section 8—Delegations

(1) Section 8(1)—delete subsection (1) and substitute:

(1) Subject to this section, the Public Trustee and Guardian may delegate a function or power (other than a prescribed function or power) to a specified person or body that is, in the Public Trustee and Guardian's opinion, competent to perform or exercise the relevant function or power.

(2) Section 8—after subsection (2) insert:

(3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated.

14—Amendment of section 9—Administration of deceased estate

Section 9—after "Public Trustee" wherever occurring insert:

and Guardian

15—Amendment of section 10—Public Trustee and Guardian need not give security

Section 10—after "Public Trustee" insert:

and Guardian

16—Amendment of section 11—No action to be instituted after Public Trustee and Guardian has obtained administration

Section 11—after "Public Trustee" wherever occurring insert:

and Guardian

17—Amendment of section 12—Appointment as administrator until certain actions determined

Section 12—after "Public Trustee" wherever occurring insert:

and Guardian

18—Amendment of section 13—Administration of trust estate

Section 13(1)—after "Public Trustee" insert:

and Guardian

19—Amendment of section 14—Appointment as executor or trustee

Section 14—after "Public Trustee" wherever occurring insert:

and Guardian

20—Amendment of section 15—Appointment of Public Trustee and Guardian by executors, administrators or trustees

Section 15—after "Public Trustee" wherever occurring insert:

and Guardian

21—Amendment of section 16—Appointment by court as trustee of amount of judgment etc

Section 16—after "Public Trustee" wherever occurring insert:

and Guardian

22—Amendment of section 17—Custodian trustee

Section 17(1)—after "Public Trustee" insert:

and Guardian

23—Amendment of section 18—Power of attorney continues despite subsequent legal incapacity

Section 18—after "Public Trustee" wherever occurring insert:

and Guardian

24—Amendment of section 19—Payments to or from executors etc elsewhere in Australia or in New Zealand

Section 19—after "Public Trustee" wherever occurring insert:

and Guardian

25—Amendment of section 20—Public Trustee and Guardian must require delivery or transfer of property to which Public Trustee and Guardian is entitled

(1) Section 20—after "Public Trustee" wherever occurring insert:

and Guardian

(2) Section 20(4), penalty provision—delete the penalty provision and substitute:

Maximum penalty: $25 000 or imprisonment for 1 year.

26—Amendment of section 21—Court may summons administrator etc on application of Public Trustee and Guardian

Section 21—after "Public Trustee" wherever occurring insert:

and Guardian

27—Amendment of section 22—Result of disobedience to summons

Section 22(1)—after "Public Trustee" wherever occurring insert:

and Guardian

28—Amendment of section 23—Public Trustee and Guardian to give notice to beneficiary entitled to property

Section 23—after "Public Trustee" wherever occurring insert:

and Guardian

29—Amendment of section 24—Administration of Public Trustee and Guardian may be referred to Court

Section 24—after "Public Trustee" wherever occurring insert:

and Guardian

30—Amendment of section 25—Public Trustee and Guardian may make advances for purposes of administration

Section 25—after "Public Trustee" wherever occurring insert:

and Guardian

31—Amendment of section 26—Public Trustee and Guardian to keep accounts in respect of estates etc

(1) Section 26—after "Public Trustee" wherever occurring insert:

and Guardian

(2) Section 26(1)—delete "Public Trustee's" and substitute:

Public Trustee and Guardian's

32—Amendment of section 27—Investment of estate funds

Section 27—after "Public Trustee" insert:

and Guardian

33—Amendment of section 28—Money from several estates may be invested as one fund

Section 28—after "Public Trustee" wherever occurring insert:

and Guardian

34—Amendment of section 29—Common funds

(1) Section 29—after "Public Trustee" wherever occurring insert:

and Guardian

(2) Section 29(10)—delete "Public Trustee's" and substitute:

Public Trustee and Guardian's

35—Amendment of section 30—Accounts, audits and reports in respect of common funds

(1) Section 30—after "Public Trustee" wherever occurring insert:

and Guardian

(2) Section 30(3)—delete "Public Trustee's" and substitute:

Public Trustee and Guardian's

36—Amendment of section 31—Information for investors or prospective investors in common funds

(1) Section 31—after "Public Trustee" wherever occurring insert:

and Guardian

(2) Section 31—delete "Public Trustee's" wherever occurring and substitute in each case:

Public Trustee and Guardian's

37—Amendment of section 32—Public Trustee and Guardian's duties with respect to unclaimed money or land

Section 32—after "Public Trustee" wherever occurring insert:

and Guardian

38—Amendment of section 33—Provision for parties subsequently claiming to apply to Court etc

Section 33—after "Public Trustee" wherever occurring insert:

and Guardian

39—Amendment of section 34—Appointment as manager of unclaimed property

Section 34—after "Public Trustee" wherever occurring insert:

and Guardian

40—Amendment of section 35—Powers of Public Trustee and Guardian as manager

(1) Section 35—after "Public Trustee" wherever occurring insert:

and Guardian

(2) Section 35(1)(i)—delete "Public Trustee's" and substitute:

Public Trustee and Guardian's

41—Amendment of section 36—Public Trustee and Guardian to have discretion as to exercise of powers as manager

Section 36—after "Public Trustee" wherever occurring insert:

and Guardian

42—Amendment of section 37—Public Trustee and Guardian may apply to Court for directions

Section 37(1)—after "Public Trustee" insert:

and Guardian

43—Amendment of section 38—Money to be invested in common fund

Section 38—after "Public Trustee" insert:

and Guardian

44—Amendment of section 39—Remuneration and expenses of Public Trustee and Guardian

Section 39—after "Public Trustee" wherever occurring insert:

and Guardian

45—Amendment of section 40—Property managed by Public Trustee and Guardian to be held for owner

Section 40—after "Public Trustee" wherever occurring insert:

and Guardian

46—Amendment of section 41—Termination of management

(1) Section 41—after "Public Trustee" wherever occurring insert:

and Guardian

(2) Section 41—delete "Public Trustee's" wherever occurring and substitute in each case:

Public Trustee and Guardian's

47—Amendment of section 42—Transfer of unclaimed property to Crown

Section 42—after "Public Trustee" wherever occurring insert:

and Guardian

48—Amendment of section 43—Expenditure of money on land

(1) Section 43—after "Public Trustee" wherever occurring insert:

and Guardian

(2) Section 43(1)(a)—delete "Public Trustee's" and substitute:

Public Trustee and Guardian's

49—Amendment of section 44—Fee for administering perpetual trust

(1) Section 44—after "Public Trustee" wherever occurring insert:

and Guardian

(2) Section 44(1)—delete "Public Trustee's" and substitute:

Public Trustee and Guardian's

50—Amendment of section 45—General provision relating to Public Trustee and Guardian's charges

Section 45—after "Public Trustee" wherever occurring insert:

and Guardian

51—Amendment of section 45A—Recovery of GST

Section 45A(1)—after "Public Trustee" wherever occurring insert:

and Guardian

52—Amendment of section 46—ADI accounts, investment and overdraft

(1) Section 46—after "Public Trustee" wherever occurring insert:

and Guardian

(2) Section 46(2)(b)—delete "Public Trustee's" and substitute:

Public Trustee and Guardian's

53—Amendment of section 47—Tax and other liabilities of Public Trustee and Guardian

Section 47—after "Public Trustee" wherever occurring insert:

and Guardian

54—Amendment of section 48—Dividends

Section 48—after "Public Trustee" wherever occurring insert:

and Guardian

55—Amendment of section 49—Responsibility of Government for acts of Public Trustee and Guardian

(1) Section 49(1)—after "Public Trustee" insert:

and Guardian

(2) Section 49(2)—delete "Public Trustee's" and substitute:

Public Trustee and Guardian's

56—Amendment of section 50—Accounts and external audit

(1) Section 50—after "Public Trustee" wherever occurring insert:

and Guardian

(2) Section 50(1)—delete "Public Trustee's" and substitute:

Public Trustee and Guardian's

57—Amendment of section 51—Annual reports

(1) Section 51—after "Public Trustee" wherever occurring insert:

and Guardian

(2) Section 51(1)—delete "Public Trustee's" and substitute:

Public Trustee and Guardian's

(3) Section 51(2)—after paragraph (a) insert:

(ab) include prescribed particulars of all applications made by the Public Trustee and Guardian for the issue of a warrant under the Guardianship and Administration Act 1993

during the year; and

58—Amendment of section 52—Certain documents may be deposited with Public Trustee and Guardian for safe keeping

Section 52—after "Public Trustee" wherever occurring insert:

and Guardian

59—Amendment of section 53—Certificate by Public Trustee and Guardian of appointment to act

Section 53—after "Public Trustee" wherever occurring insert:

and Guardian

60—Amendment of section 54—Indemnity to persons having dealings with Public Trustee and Guardian

Section 54—after "Public Trustee" wherever occurring insert:

and Guardian

61—Substitution of section 55

Section 55—delete the section and substitute:

55—Regulations and fee notices

(1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act.

(2) Without limiting the generality of subsection (1)

, the regulations may—

(a) exempt a person, or a class of persons, from the application of this Act or a specified provision or provisions of this Act; and

(b) provide for the payment, recovery or waiver of fees prescribed by fee notice; and

(d) provide for expiation fees, not exceeding $315, for offences against the regulations; and

(e) provide for the facilitation of proof of the commission of offences against the regulations.

(3) The regulations may—

(a) be of general or limited application; and

(b) make different provision according to the matters or circumstances to which they are expressed to apply; and

(d) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister or a specified person or body; and

(e) apply or incorporate, wholly or partially and with or without modification, a code, standard, policy or other document prepared or published by the Minister or a specified person or body.

(4) If a code, standard or other document is referred to or incorporated in the regulations—

(a) a copy of the code, standard or other document must be kept available for public inspection, without charge and during ordinary office hours, at an office or offices specified in the regulations; and

(b) evidence of the contents of the code, standard or other document may be given in any legal proceedings by production of a document apparently certified by the Minister to be a true copy of the code, standard or other document.

(5) The Minister may prescribe fees for the purposes of this Act by fee notice under the Legislation (Fees) Act 2019

(6) A provision made by a regulation under subsection (3)(c)

may, if the regulations so provide, take effect from the commencement of the amendment or from a later day.

(7) To the extent to which a provision takes effect under subsection (6)

from a day earlier than the day of the publication of the regulation in the Gazette, the provision does not operate to the disadvantage of a person by—

(a) decreasing the person's rights; or

(b) imposing liabilities on the person.

Schedule 1—Related amendments and transitional provisions etc

Part 1—Amendment of Administration and Probate Act 1919

1—Amendment of section 4—Interpretation

(1) Section 4, definition of estate—after "Public Trustee" insert:

and Guardian

(2) Section 4, definition of Public Trustee—delete the definition and substitute:

Public Trustee and Guardian has the same meaning as in the Public Trustee and Guardian Act 1995

;

2—Amendment of section 34—Administration may be granted to duly authorised attorney

Section 34—after "Public Trustee" wherever occurring insert:

and Guardian

3—Amendment of section 37—If executor or administrator out of jurisdiction, special administrator may be appointed

Section 37—after "Public Trustee" insert:

and Guardian

4—Amendment of section 38—Special administrator to make certain affidavits

Section 38—after "Public Trustee" insert:

and Guardian

5—Amendment of section 43—Protection to persons acting in reliance on probate or administration

Section 43(4), definition of administration—delete the definition and substitute:

administration includes an order under section 9 of the Public Trustee and Guardian Act 1995

authorising the Public Trustee and Guardian to administer the estate of a deceased person.

6—Amendment of section 45—Vesting of intestate estates until administration

Section 45—after "Public Trustee" insert:

and Guardian

7—Amendment of section 56—Statement and account to be delivered

Section 56(1)—after "Public Trustee" wherever occurring insert:

and Guardian

8—Amendment of section 56A—Court may order delivery of statement and account

Section 56A—after "Public Trustee" wherever occurring insert:

and Guardian

9—Amendment of section 58—Proceedings to compel account

Section 58—after "Public Trustee" wherever occurring insert:

and Guardian

10—Amendment of section 61—Rules in insolvency administration to prevail in certain cases

(1) Section 61(1)—after "Public Trustee" insert:

and Guardian

(2) Section 61(1)—delete " Public Trustee Act 1995

" and substitute:

Public Trustee and Guardian Act 1995

11—Amendment of section 62—Estate how administered

(1) Section 62—delete " Public Trustee Act 1995

" and substitute:

Public Trustee and Guardian Act 1995

(2) Section 62—after "Public Trustee" insert:

and Guardian

12—Amendment of section 64—Court may give permission to postpone realisation or carry on business

Section 64(1)—after "Public Trustee" insert:

and Guardian

13—Amendment of section 65—Administrator to pay over money and deliver property to Public Trustee and Guardian

Section 65—after "Public Trustee" wherever occurring insert:

and Guardian

14—Amendment of section 66—Effect of delivery etc to Public Trustee and Guardian

Section 66—after "Public Trustee" insert:

and Guardian

15—Amendment of section 67—Judge may dispense wholly or partially with compliance with section 65

Section 67(6)—after "Public Trustee" insert:

and Guardian

16—Amendment of section 69—Public Trustee and Guardian and other persons may obtain judicial advice or direction

Section 69—after "Public Trustee" wherever occurring insert:

and Guardian

17—Amendment of section 72L—Election by spouse or domestic partner to take dwellinghouse

Section 72L(3)(b)—after "Public Trustee" insert:

and Guardian

18—Amendment of section 121A—Statement of assets and liabilities to be provided with application for probate or administration

Section 121A(8), definition of administration—delete the definition and substitute:

administration includes an order under section 9 of the Public Trustee and Guardian Act 1995

authorising the Public Trustee and Guardian to administer the estate of a deceased person.

19—Amendment of section 128—Power of Public Trustee and Guardian to move for attachment of an administrator

Section 128—after "Public Trustee" wherever occurring insert:

and Guardian

Part 2—Amendment of Advance Care Directives Act 2013

20—Amendment of section 3—Interpretation

Section 3(1), definition of Public Advocate—delete the definition and substitute:

Public Trustee and Guardian means the person holding or acting in the office of Public Trustee and Guardian under the Public Trustee and Guardian Act 1995

;

21—Amendment of section 43—Interpretation

Section 43, definition of eligible person, (d)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

22—Amendment of heading to Part 7 Division 2

Heading to Part 7 Division 2—delete "Public Advocate" and substitute:

Public Trustee and Guardian

23—Amendment of section 45—Resolution of disputes by Public Trustee and Guardian

(1) Section 45—delete "Public Advocate" wherever occurring and substitute in each case:

Public Trustee and Guardian

(2) Section 45(9)—delete "Public Advocate's" and substitute:

Public Trustee and Guardian's

24—Amendment of section 46—Public Trustee and Guardian may refer matter to Tribunal

Section 46(1)—delete "Public Advocate" wherever occurring and substitute in each case:

Public Trustee and Guardian

25—Amendment of section 46A—Public Trustee and Guardian may refer question of law to Supreme Court

Section 46A—delete "Public Advocate" and substitute:

Public Trustee and Guardian

26—Amendment of section 48—Resolution of disputes by Tribunal

Section 48—delete "Public Advocate" wherever occurring and substitute in each case:

Public Trustee and Guardian

27—Amendment of section 49—Tribunal may refer matter to Public Trustee and Guardian

Section 49(1)—delete "Public Advocate" wherever occurring and substitute in each case:

Public Trustee and Guardian

28—Amendment of section 51—Orders of Tribunal in relation to substitute decision-makers

Section 51(2)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

29—Amendment of section 53—Reviews and appeals

Section 53(b)(iii)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

30—Amendment of section 54—Tribunal must give notice of proceedings

Section 54(1)(c)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

31—Amendment of section 54B—Representation of person who is subject of proceedings

Section 54B(1)(a)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

Part 3—Amendment of Aged and Infirm Persons' Property Act 1940

32—Amendment of section 8—Application for protection order

Section 8(1)(d)—after "Public Trustee" insert:

and Guardian

33—Amendment of section 8A—Protection order on court's own initiative

Section 8A(4)(d)—after "Public Trustee" insert:

and Guardian

34—Amendment of section 10—Appointment of manager

Section 10—after "Public Trustee" wherever occurring insert:

and Guardian

35—Amendment of section 19—Filing of statement

Section 19—after "Public Trustee" wherever occurring insert:

and Guardian

36—Amendment of section 20—Percentage of moneys collected payable to Public Trustee and Guardian

Section 20—after "Public Trustee" wherever occurring insert:

and Guardian

37—Amendment of section 22—Proceedings

Section 22—after "Public Trustee" wherever occurring insert:

and Guardian

38—Amendment of section 24—Application to court by Public Trustee and Guardian

Section 24(1)—after "Public Trustee" wherever occurring insert:

and Guardian

39—Amendment of section 31—Expenses and remuneration of manager

Section 31(2)—after "Public Trustee" wherever occurring insert:

and Guardian

40—Amendment of section 32—Change of managers

Section 32(1)—after "Public Trustee" insert:

and Guardian

41—Amendment of section 32A—Provision for Public Trustee and Guardian to manage estates of persons in other parts of the world

Section 32A—after "Public Trustee" wherever occurring insert:

and Guardian

Part 4—Amendment of Burial and Cremation Act 2013

42—Amendment of section 56—Power of Public Trustee and Guardian to act on behalf of holder of interment right etc

Section 56—after "Public Trustee" wherever occurring insert:

and Guardian

Part 5—Amendment of Children and Young People (Safety) Act 2017

43—Amendment of section 161—Payment of money to Chief Executive on behalf of child or young person

Section 161—after "Public Trustee" wherever occurring insert:

and Guardian

Part 6—Amendment of Consent to Medical Treatment and Palliative Care Act 1995

44—Amendment of section 4—Interpretation

Section 4(1), definition of Public Advocate—delete the definition and substitute:

Public Trustee and Guardian means the person holding or acting in the office of Public Trustee and Guardian under the Public Trustee and Guardian Act 1995

;

45—Amendment of section 18A—Interpretation

Section 18A, definition of eligible person, (d)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

46—Amendment of heading to Part 3A Division 2

Heading to Part 3A Division 2—delete "Public Advocate" and substitute:

Public Trustee and Guardian

47—Amendment of section 18C—Resolution of disputes by Public Trustee and Guardian

Section 18C—delete "Public Advocate" wherever occurring and substitute in each case:

Public Trustee and Guardian

48—Amendment of section 18D—Public Trustee and Guardian may refer matter to Tribunal

Section 18D(1)—delete "Public Advocate" wherever occurring and substitute in each case:

Public Trustee and Guardian

49—Amendment of section 18DA—Public Trustee and Guardian may refer question of law to Supreme Court

Section 18DA—delete "Public Advocate" and substitute:

Public Trustee and Guardian

50—Amendment of section 18E—Resolution of disputes by Tribunal

Section 18E—delete "Public Advocate" wherever occurring and substitute in each case:

Public Trustee and Guardian

51—Amendment of section 18F—Tribunal may refer matter to Public Trustee and Guardian

Section 18F(1)—delete "Public Advocate" wherever occurring and substitute in each case:

Public Trustee and Guardian

52—Amendment of section 18H—Reviews and appeals

Section 18H(b)(iii)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

53—Amendment of section 18I—Tribunal must give notice of proceedings

Section 18I(1)(c)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

54—Amendment of section 18K—Representation of person who is subject of proceedings

Section 18K(1)(a)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

Part 7—Amendment of Criminal Law Consolidation Act 1935

55—Amendment of section 269ND—Variation or revocation of condition of Division 3A order

Section 269ND—delete "Public Advocate" and substitute:

Public Trustee and Guardian

56—Amendment of section 269P—Variation or revocation of supervision order

Section 269P(1)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

57—Amendment of section 269UC—Variation or revocation of continuing supervision order

Section 269UC(1)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

Part 8—Amendment of Fisheries Management Act 2007

58—Amendment of section 57—Transfer of licence or permit

Section 57(9), definition of personal representative, (b)—after "Public Trustee" insert:

and Guardian

Part 9—Amendment of Freedom of Information Act 1991

59—Amendment of Schedule 2—Exempt agencies

Schedule 2, paragraph (m)—after "Public Trustee" insert:

and Guardian

Part 10—Amendment of Guardianship and Administration Act 1993

60—Amendment of section 3—Interpretation

Section 3(1), definition of the Public Advocate—delete the definition and substitute:

Public Trustee and Guardian means the person holding or acting in the office of Public Trustee and Guardian under the Public Trustee and Guardian Act 1995

;

61—Amendment of section 5—Principles to be observed

Section 5—delete "Public Advocate" and substitute:

Public Trustee and Guardian

62—Repeal of Part 2

Part 2—delete the Part

63—Amendment of section 28—Investigations by Public Trustee and Guardian

Section 28—delete "Public Advocate" wherever occurring and substitute in each case:

Public Trustee and Guardian

64—Amendment of section 29—Guardianship orders

Section 29—delete "Public Advocate" wherever occurring and substitute in each case:

Public Trustee and Guardian

65—Amendment of section 33—Applications under this Division

Section 33—delete "Public Advocate" wherever occurring and substitute in each case:

Public Trustee and Guardian

66—Amendment of section 35—Administration orders

Section 35—after "Public Trustee" wherever occurring insert:

and Guardian

67—Amendment of section 37—Applications under this Division

(1) Section 37(1)(b)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

(2) Section 37(1a)(b)—after "Public Trustee" insert:

and Guardian

68—Amendment of section 38—Copy of order must be forwarded to Public Trustee and Guardian

Section 38—after "Public Trustee" insert:

and Guardian

69—Amendment of section 44—Reporting requirements for private administrators

(1) Section 44—after "Public Trustee" wherever occurring insert:

and Guardian

(2) Section 44(7)(c)—delete "Public Trustee's" and substitute:

Public Trustee and Guardian's

70—Amendment of section 45—Reporting by Public Trustee and Guardian

Section 45—after "Public Trustee" wherever occurring insert:

and Guardian

71—Amendment of section 46—Remuneration of professional administrators

(1) Section 46(3)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

(2) Section 46(4)—after "Public Trustee" insert:

and Guardian

72—Amendment of section 48—Reciprocal administration powers with certain states

Section 48(2)—after "Public Trustee" wherever occurring insert:

and Guardian

73—Amendment of section 51—Consent to appointment

Section 51—delete "Public Advocate or the Public Trustee" and substitute:

Public Trustee and Guardian

74—Amendment of section 64—Reviews and appeals

Section 64(b)(iii)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

75—Amendment of section 66—Tribunal must give notice of proceedings

Section 66(1)(c)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

76—Amendment of section 68—Representation of person who is subject of proceedings

Section 68(1)(a)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

77—Amendment of section 69—Tribunal may require reports

Section 69(2)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

Part 11—Amendment of Inheritance (Family Provision) Act 1972

78—Amendment of section 16—Public Trustee and Guardian deemed to be administrator where order has been made authorising him to administer estate

Section 16—after "Public Trustee" wherever occurring insert:

and Guardian

Part 12—Amendment of Law of Property Act 1936

79—Amendment of section 7—Interpretation

Section 7, definition of representative—after "Public Trustee" insert:

and Guardian

80—Amendment of section 114—Power of Court to sell interest of Crown in real estate

Section 114(2)—after "Public Trustee" insert:

and Guardian

81—Amendment of section 115—Power to waive right of Crown in certain cases

Section 115(1)—after "Public Trustee" insert:

and Guardian

Part 13—Amendment of Mental Health Act 2009

82—Amendment of section 3—Interpretation

Section 3(1), definition of Public Advocate—delete the definition and substitute:

Public Trustee and Guardian means the person holding or acting in the office of Public Trustee and Guardian under the Public Trustee and Guardian Act 1995

;

83—Amendment of section 16—Level 2 community treatment orders

Section 16—delete "Public Advocate" wherever occurring and substitute in each case:

Public Trustee and Guardian

84—Amendment of section 29—Level 3 inpatient treatment orders

Section 29—delete "Public Advocate" wherever occurring and substitute in each case:

Public Trustee and Guardian

85—Amendment of section 48—Patients' right to communicate with others outside treatment centre

Section 48(3)(c)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

86—Amendment of section 81—Reviews of orders (other than Tribunal orders)

Section 81(1)(b)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

87—Amendment of section 83—Review of directions for transfer of patients to interstate treatment centres

Section 83(1)(b)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

88—Amendment of section 83A—Reviews and appeals

Section 83A(b)(iii)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

89—Amendment of section 84—Representation on reviews or appeals

Section 84(4)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

90—Amendment of section 85—Tribunal must give notice of proceedings

Section 85(1)(c)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

91—Amendment of section 85B—Representation of person who is subject of proceedings

Section 85B(1)(a)—delete "Public Advocate" and substitute:

Public Trustee and Guardian

Part 14—Amendment of Problem Gambling Family Protection Orders Act 2004

92—Amendment of section 7—Complaints

Section 7(3)(c)—delete paragraph (c) and substitute:

(c) the person holding or acting in the office of Public Trustee and Guardian under the Public Trustee and Guardian Act 1995

; or

93—Amendment of section 8—Complaints or applications by or on behalf of child

Section 8(b)(iv)—delete subparagraph (iv) and substitute:

(iv) the person holding or acting in the office of Public Trustee and Guardian under the Public Trustee and Guardian Act 1995

; or

Part 15—Amendment of Real Property Act 1886

94—Amendment of section 135A—Mode of payment of encumbrance

Section 135A(1)—after "Public Trustee" insert:

and Guardian

95—Amendment of section 175—Transmission of estate of deceased persons

Section 175—after "Public Trustee" wherever occurring insert:

and Guardian

96—Amendment of section 176—Application to be made in such case

Section 176—after "Public Trustee" wherever occurring insert:

and Guardian

97—Amendment of section 178—Effect of such entry

Section 178—after "Public Trustee" insert:

and Guardian

98—Amendment of section 181—Proceedings when executor etc refuse to transfer

Section 181—after "Public Trustee" wherever occurring insert:

and Guardian

Part 16—Amendment of Stamp Duties Act 1923

99—Amendment of Schedule 2—Stamp duties and exemptions

Schedule 2, clause 16, item 25—after "Public Trustee" insert:

and Guardian

Part 17—Amendment of Trustee Act 1936

100—Amendment to section 4—Interpretation

Section 4(1), definition of representative—after "Public Trustee" insert:

and Guardian

101—Amendment of section 14—Power of appointing new trustees

Section 14(2)(c)—after "Public Trustee" wherever occurring insert:

and Guardian

102—Amendment of section 14A—Appointment of separate trustees

Section 14A(3)—after "Public Trustee" wherever occurring insert:

and Guardian

103—Amendment of section 49—Power for Court to authorise purchase of trust property by trustee

Section 49(1)(b)—after "Public Trustee" insert:

and Guardian

104—Amendment of section 84B—Records to be kept by trustee

Section 84B(2)—after "Public Trustee" wherever occurring insert:

and Guardian

Part 18—Amendment of Wills Act 1936

105—Amendment of section 6—Will of minor pursuant to leave of Court

Section 6(4)(a)—after "Public Trustee" insert:

or Guardian

106—Amendment of section 7—Will of person lacking testamentary capacity pursuant to permission of court

Section 7(7)(c)—delete paragraph (c) and substitute:

(c) the person holding or acting in the office of Public Trustee and Guardian under the Public Trustee and Guardian Act 1995

;

Part 19—Transitional provisions etc

107—Appointments

An appointment of the Public Advocate to act in any capacity (whether under the Guardianship and Administration Act 1993

or any other Act or law) in force immediately before the commencement of this clause will be taken to be an appointment of the Public Trustee and Guardian from the commencement of this clause and will continue in accordance with its terms.

108—Assets, rights and liabilities

Subject to this Part, all assets, rights and liabilities of the Public Advocate transfer to the Public Trustee and Guardian on the commencement of this clause.

109—References

(1) Unless the context otherwise requires, a reference in any Act, statutory instrument, will, order, direction, or other document or instrument to the Public Advocate will be taken to be a reference to the Public Trustee and Guardian.

(2) Unless the context otherwise requires, a reference in any Act, statutory instrument, will, order, direction or other document or instrument to the Public Trustee will be taken to be a reference to the Public Trustee and Guardian.

110—Processes and proceedings

(1) Any process or proceedings commenced by the Public Advocate, or to which the Public Advocate is a party, may be continued and completed by the Public Trustee and Guardian.

(2) Without limiting subclause (1)

, the Public Trustee and Guardian may, in relation to such processes or proceedings, adopt any findings, determinations, report or recommendations of the Public Advocate that may be relevant to the continuation or completion of any process or proceeding by the Public Trustee and Guardian.

111—Causes of action

(1) A right to take legal action against the Public Advocate in relation to a matter in existence (but not yet exercised) before the commencement of this clause, may be exercised as if this Act had been in operation before the right arose, so that relevant proceedings may be commenced instead against the Public Trustee and Guardian.

(2) A right of the Public Advocate to take legal action in relation to a matter in existence (but not yet exercised) before the commencement of this clause, may be exercised as if this Act had been in operation before the right arose, so that relevant proceedings may be commenced instead by the Public Trustee and Guardian.

112—Committees

A committee established by the Public Advocate under section 21(3) of the Guardianship and Administration Act 1993

in existence immediately before the commencement of this clause continues in existence and will be taken to be a committee established under section 5(5) of the Public Trustee and Guardian Act 1995

113—Reports

If—

(a) the Public Advocate has requested that the Attorney-General cause a report to be laid before both Houses of Parliament under section 22(2) of the Guardianship and Administration Act 1993

; and

(b) the report has not been laid before both Houses of Parliament before the commencement of this clause,

the request will be taken to have been a request from the Public Trustee and Guardian under section 6A(2) of the Public Trustee and Guardian Act 1995

114—Delegations

A delegation of the Public Advocate under section 23 of the Guardianship and Administration Act 1993

in force immediately before the commencement of this clause continues in force and will be taken to be a delegation of the Public Trustee and Guardian under section 8 of the Public Trustee and Guardian Act 1995

115—Common funds

A common fund under Part 5 of the Public Trustee Act 1995

in force immediately before the commencement of this clause continues in accordance with its terms.

116—Common seal

A document apparently bearing the common seal of the Public Trustee will be presumed, in the absence of proof to the contrary, to have been duly executed by the Public Trustee and Guardian.

117—Information and documents

Despite any provision of the Guardianship and Administration Act 1993

, or any other Act or law, information and documents held by, or in the possession of, the Public Advocate may be transferred to the Public Trustee and Guardian.

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