Schedule 2 Amendment of Protected Estates Act 1983
(Section 4)
Insert in alphabetical order in section 4 (1):ADT means the Administrative Decisions Tribunal established by the Administrative Decisions Tribunal Act 1997.
MHRT means the Mental Health Review Tribunal constituted under the Mental Health Act 1990.
[2] Section 4 (1), definition of “Tribunal”
Omit the definition.
Omit the subsection.
[4] Section 5 Protective Commissioner and other officers
Omit section 5 (3), (8) and (9).
[5] Sections 16, 17, 18, 19, 20, 21 and 36
Omit “Tribunal” wherever occurring. Insert instead “MHRT”.
[6] Section 21 Appeals to Court against management orders
Insert after section 21 (2):(2A) If the person to whom the order relates has appealed to the ADT under section 21A against the order, the person may not appeal to the Court under this section against the same order. However, the person may appeal to the Court under this section if the appeal under section 21A is withdrawn with the approval of the ADT for the purpose of enabling the Court to deal with the matter.
Insert after section 21:21A Appeals to ADT against estate management orders made by Magistrate or MHRT
(1) An appeal may be made to the ADT against an order by a Magistrate or the MHRT under this Division that the estate of a person be subject to management under this Act.(2) An appeal to the ADT under this section may be made by:(a) the person to whom the order relates, or(b) any other person who was a party to the proceedings in which the order was made.(3) If the person to whom the order relates has appealed to the Court under section 21 against the order, the person may not appeal to the ADT under this section against the same order. However, the person may appeal to the ADT under this section if the appeal under section 21 is withdrawn with the approval of the Court for the purpose of enabling the ADT to deal with the matter.(4) An appeal under this section is an external appeal within the meaning of the Administrative Decisions Tribunal Act 1997.21B Notice of reasons for orders and appeal rights
(1) If a Magistrate or the MHRT makes an order under this Division that the estate of a person be subject to management under this Act, the Magistrate or MHRT must, if requested to do so by any party to the proceedings (including the person to whom the order relates), provide the party with formal written reasons for the order as soon as practicable after making the order.(2) In providing those reasons, the Magistrate or MHRT must also advise the party concerned that the order may be appealed against to the ADT under section 21A.
[8] Section 23A Protected person cannot deal with estate committed to management
Insert after section 23A (5):(6) An application may be made to the ADT for a review of the Protective Commissioner’s decision under subsection (5) whether or not to approve of the giving or withdrawal of an authorisation under this section.(7) An application for review under subsection (6) may be made by:(a) the person managing the protected person’s estate, or(b) the protected person, or(c) the spouse of the protected person, or(d) any other person who, in the opinion of the ADT, has a genuine interest in the matter to which the Protective Commissioner’s decision relates.
Insert after section 28:28A Review by ADT of decisions by Protective Commissioner under this Division
(1) An application may be made to the ADT for a review of a decision of the Protective Commissioner that:(a) is made in connection with the exercise of the Protective Commissioner’s functions under this Division, and(b) is of a class of decision prescribed by the regulations for the purposes of this section.(2) Subsection (1) does not apply if the decision by the Protective Commissioner was made in accordance with a direction given by the Court to the Protective Commissioner.(3) An application under this section may be made by:(a) the protected person in respect of whose estate the decision was made, or(b) the spouse of the protected person, or(c) any other person whose interests are, in the opinion of the ADT, adversely affected by the decision.
Omit the section. Insert instead:30 Protective Commissioner may authorise and direct functions of managers
(1) If a person is appointed by the Court under section 22 as manager of the estate of a protected person, the Protective Commissioner may, by order:(a) authorise the person appointed as manager to have such functions in respect of the estate as the Protective Commissioner may specify (being functions of the same kind as those specified in section 24 (2) in respect of an estate committed to management by the Protective Commissioner but without the limitation referred to in section 24 (3)), and(b) give such directions with respect to the exercise of those functions as the Protective Commissioner thinks fit.(2) An order by the Protective Commissioner under subsection (1) is subject to the regulations or to any direction by the Court.(3) If a person is appointed by the Guardianship Tribunal under section 25M (1) (a) of the Guardianship Act 1987 as manager of the estate of a protected person, the Protective Commissioner may, by order:(a) authorise the person appointed as manager to have such functions in respect of the estate as the Protective Commissioner may specify (being functions of the same kind as those specified in section 24 (2) in respect of an estate committed to management by the Protective Commissioner but without the limitation referred to in section 24 (3)), and(b) give such directions with respect to the exercise of those functions as the Protective Commissioner thinks fit.(4) An order by the Protective Commissioner under subsection (3) is subject to the regulations or to any order of the Guardianship Tribunal.
Insert after section 30:30A Review by ADT of decisions by Protective Commissioner in relation to managers
(1) An application may be made to the ADT for a review of a decision by the Protective Commissioner under section 30 in relation to the functions of a person appointed as manager of the estate of a protected person.(2) Subsection (1) does not apply if the decision by the Protective Commissioner was made in accordance with a direction given by the Court to the Protective Commissioner.(3) An application under this section may be made by:(a) the person appointed as manager, or(b) any other person who, in the opinion of the ADT, has a genuine interest in the matter to which the Protective Commissioner’s decision relates.
[12] Section 31 Security in respect of management
Insert “, including security comprising the assets of the protected person,” after “security” in section 31 (1).
Insert after section 31 (4):(5) Any amount lodged with the Protective Commissioner as security under this section may, subject to any order of the Court, be invested by the Protective Commissioner in any investment in which a trustee may invest trust funds in accordance with the Trustee Act 1925.
Insert after section 31:31A Managers may lodge estate funds with Protective Commissioner
(1) The manager of the estate of a protected person may, subject to any order of the Court under this Division, lodge with the Protective Commissioner any money that comprises the whole or part of the estate of the protected person.(2) Any such money lodged with, and held by, the Protective Commissioner is referred to as estate funds.(3) The Protective Commissioner may invest estate funds in the same manner as money in the trust fund may be invested under Part 4.(4) Accordingly:(a) Part 4 applies to and in respect of the investment of any estate funds by the Protective Commissioner, and(b) references in that Part to money in the trust fund are taken to include references to any estate funds.(1) The Protective Commissioner may prepare a financial plan in respect of the estate of a protected person (including an estate that is not managed by the Protective Commissioner).(2) In the case of an estate that is not managed by the Protective Commissioner, a financial plan may be prepared by the Protective Commissioner but only with the agreement of the manager of the estate.(3) The Protective Commissioner may, in accordance with section 8, charge a fee for the preparation of a financial plan under this section.
Omit the section. Insert instead:33 Orders by Court as to management of estates of protected persons
(1) The Court may make such orders as it thinks fit in relation to the administration and management of the estates of protected persons.(2) The Court may also make such orders as it thinks fit in connection with authorising, directing, supervising and enforcing the exercise of the functions of managers under this Act.
[16] Section 50 Protected person and relatives to be consulted
Omit section 50 (1). Insert instead:(1) Before the Protective Commissioner takes any action in respect of the estate of a protected person, the Protective Commissioner must determine whether the action is of such a nature that the protected person or the relatives of the protected person should be consulted in relation to the action.
[17] Section 57 Application of money in reserve fund
Insert after section 57 (b):(c) payment of any costs not ordered by a court to be charged against a particular estate or otherwise not properly chargeable against a particular estate,(d) payment of any costs not ordered by a court to be charged against a particular estate but otherwise properly chargeable against a particular estate where there are insufficient funds in the particular estate to meet the costs,(e) payment of any costs incurred by the Protective Commissioner in obtaining any kind of advice or in any legal proceedings to which the Protective Commissioner is or is made a party where the costs are such that, because of general interest and the importance of the subject-matter of the advice or proceedings, they should not, in the opinion of the Protective Commissioner, be charged against a particular estate.
[18] Section 70 Power to carry orders and directions into effect
Insert “or Protective Commissioner” after “the Court” where firstly occurring in section 70 (1).
Omit “directs for giving effect to any order”.Insert instead “or Protective Commissioner directs for giving effect to any order or direction”.
Insert “or direction” after “order”.
Omit the subsection.
Insert after section 70:70A Failure to comply with directions of Protective Commissioner
A person must not fail to comply with any direction that is given to the person by the Protective Commissioner in accordance with the Protective Commissioner’s functions under this Act.Maximum penalty: 100 penalty units.
[23] Section 77 Costs may be paid out of estate
Omit “where the Protective Commissioner exercises the jurisdiction and powers of the Court under Division 4 of Part 3” from section 77 (3).Insert instead “under section 30”.
Omit the section. Insert instead:79 Directions by Protective Commissioner as to visitors
The Protective Commissioner may:(a) by order, direct an authorised officer under the Mental Health Act 1990 or any other specified person:(i) to visit a protected person (other than a protected person who is a patient), and(ii) to report in writing to the Protective Commissioner on the state of mind, bodily health and general condition of the protected person and on the care and treatment of the protected person, and(b) by order, direct that such information as the Protective Commissioner thinks necessary be given to the person directed to visit the protected person as to the nature and extent of the assets of the protected person and as to the orders made under this Act in respect of the person, and(c) order that any fees and expenses arising in connection with the visit be paid out of the estate of the protected person.
Insert after section 79:79A Evidentiary certificates in relation to financial management orders
A certificate issued by the Protective Commissioner stating that, on a specified date or during a specified period, the estate of a specified person was or was not subject to management under this Act is admissible in any legal proceedings under this or any other Act and is evidence of the matters so certified.
Insert after section 80:Proceedings for an offence under this Act are to be disposed of summarily.
[27] Section 82 Rules of Court
Omit section 82 (3).
[28] Schedule 1 Savings and transitional provisions
Insert at the end of clause 1 (1):Guardianship and Protected Estates Legislation Amendment Act 2002, to the extent that it amends this Act
Insert after Part 2:Part 3 Provisions consequent on enactment of Guardianship and Protected Estates Legislation Amendment Act 2002
Subject to the regulations, an amendment made to this Act by the Guardianship and Protected Estates Legislation Amendment Act 2002 does not apply to or in respect of any decision or order made under this Act before the commencement of the amendment.