Part 4.6 Suspension or termination of management

Division 1 Revocation of management orders

85   Termination by revocation of orders

The management of the estate of a managed person under this Act is terminated if the order that the estate be subject to management is revoked.

Note. The Guardianship Tribunal may revoke a management order relating to a person under guardianship, see Division 2 of Part 3A of the Guardianship Act 1987.

86   Revocation of orders by Supreme Court

(cf PE Act, s 35)

(1)  The Supreme Court, on application by a protected person and if the Court is satisfied that the protected person is capable of managing his or her affairs, may:

(a)  revoke any declaration made that the person is incapable of managing his or her affairs, and

(b)  revoke the order that the estate of the person be subject to management under this Act, and

(c)  make any orders that appear to it to be necessary to give effect to the revocation of the order, including the release of the estate of the person from the control of the Court or the manager and the discharge of any manager.

(2)  For the purposes of this section:

(a)  evidence of a person’s capability to manage his or her own affairs may be given to the Supreme Court in any form and in accordance with any procedures that the Court thinks fit, and

(b)  the Court may personally examine a person whose capability to manage his or her affairs is in question or dispense with any such examination, and

(c)  the Court may otherwise inform itself as to the person’s capability to manage his or her own affairs as it thinks fit.

87   Orders where person no longer missing

(cf PE Act, s 35A)

The Supreme Court, on application by a managed missing person or other person and if satisfied that a managed missing person is alive, may:

(a)  revoke any declaration made that the person is a missing person, and

(b)  revoke the order that the estate of the person be subject to management under this Act, and

(c)  make any orders that appear to it to be necessary to give effect to the revocation of the order, including the release of the estate of the person from the control of the Court or the manager and the discharge of any manager.

88   Revocation of order by MHRT

(cf PE Act, s 36)

The MHRT, on application by a protected person who was, but has ceased to be, a patient, may revoke the order that the estate of the person be subject to management under this Act, if it is satisfied that the protected person is capable of managing his or her affairs.

Division 2 Termination by NSW Trustee

89   NSW Trustee may terminate management of protected persons or patients

(cf PE Act, s 38)

(1)  The NSW Trustee may certify that management of the estate of a protected person or patient by the NSW Trustee is terminated if:

(a)  the protected person ceases to be a person under guardianship, or

(b)  the protected person or patient ceases to be a patient,

      and the NSW Trustee is satisfied that the person is capable of managing his or her own affairs.

(2)  Any order that the estate of the person is subject to management under this Act ceases to have effect on certification by the NSW Trustee.

(3)  The NSW Trustee may refer to the Supreme Court, the MHRT or the Guardianship Tribunal (in the case of a person under guardianship) the question of whether a protected person or patient referred to in subsection (1) is capable of managing his or her own affairs.

90   Continuation of management after discharge etc

(cf PE Act, s 41 (2))

(1)  This section applies if the NSW Trustee becomes aware that a protected person or patient whose estate is managed by the NSW Trustee:

(a)  ceases to be under guardianship, or

(b)  ceases to be a patient.

(2)  If the NSW Trustee is not satisfied that the person is capable of managing his or her own affairs, the NSW Trustee must do all reasonably practicable things to inform the person:

(a)  if the person is a protected person, that the person may apply to a specified body for the revocation of the order that the person’s estate be subject to management, and

(b)  if the person is a patient who is not a protected person, that the person may apply to have the management terminated, and

(c)  in any case, that if the order is not revoked or an application for termination is not made, management of the estate will continue at the discretion of the NSW Trustee.

(3)  The NSW Trustee may, at the discretion of the NSW Trustee, continue to manage the property and affairs of the person until:

(a)  the order that the estate of the person be subject to management under this Act is revoked or, in the case of a person who is not a protected person, an application for termination is made, or

(b)  the NSW Trustee is satisfied that the person is capable of managing his or her affairs,

      whichever first occurs.

91   NSW Trustee may terminate management where person no longer missing

(cf PE Act, s 35A)

(1)  The NSW Trustee may, if satisfied that a managed missing person is alive, certify that management of the estate of the person is terminated.

(2)  Any order that the estate of the protected person is subject to management under this Act ceases to have effect on certification by the NSW Trustee.

(3)  The regulations may make provision for or with respect to information that the NSW Trustee may take into account for the purpose of being satisfied that a managed missing person is alive.

92   NSW Trustee may terminate management of patients who are not protected persons

(cf PE Act, s 64)

(1)  The NSW Trustee may, on application, terminate the management of the estate by the NSW Trustee of a patient who is not a protected person.

(2)  An application may be made by a patient if the patient is 18 years or over or, if the patient is under 18 years of age, by the person having parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998) for the patient.

Division 3 Termination on death

93   Termination on death of person

The management of the estate of a managed person under this Act is terminated on the death of the person.

94   Estate to be handed over to legal representative of deceased person

(cf PE Act, s 42 (1) (b))

(1)  On the death of a managed person, the NSW Trustee:

(a)  must pay to the legal representative of the person all money standing to the credit of the current account of the person in the common fund, and

(b)  must hand over all chattels and documents forming part of the estate of the person to the legal representative.

(2)  This section is subject to any order of the Supreme Court and to section 95.

Note. The legal representative includes the executor or administrator of an estate and other persons entitled to administer the estate, see section 55 (2) of the Succession Act 2006.

95   Amounts may be paid to beneficiaries or other persons

(cf PE Act, s 42 (1) (a))

(1)  The NSW Trustee may, at the discretion of the NSW Trustee:

(a)  pay to a person claiming to be entitled in the distribution of the estate or under the will of a deceased managed person (a beneficiary) any sum (not exceeding the prescribed amount) out of money standing to the credit of the account of the deceased person in the common fund, or

(b)  hand over to the beneficiary any chattels having a value not exceeding that amount and forming part of the estate of the deceased person or any documents having a value not exceeding that amount, or relating to property having a value not exceeding that amount, and forming part of the estate of the deceased person.

(2)  The NSW Trustee may exercise functions under this section:

(a)  whether or not probate of the will or letters of administration of the estate have been obtained, and

(b)  whether or not legal proof is given of the right or title of the beneficiary.

96   NSW Trustee may complete transactions

(cf PE Act, s 42 (2) and (3))

(1)  If a managed person dies, the NSW Trustee may take such steps as are necessary to complete any transaction:

(a)  that relates to the person’s estate, and

(b)  that was commenced before the death of the person, and

(c)  to which the person was a party immediately before the person’s death.

(2)  This section does not empower the NSW Trustee to do anything in contravention of:

(a)  the directions of any executor, administrator or trustee of the person’s estate, or

(b)  any court order.

Division 4 General matters relating to termination of management of estates

97   NSW Trustee may continue to act after termination event occurs

(cf PE Act, s 43)

The NSW Trustee may continue to act as, and exercise the functions of, the manager of the estate of a person under this Act until:

(a)  in the case of a deceased person, the NSW Trustee is satisfied that the person has died, or

(b)  in the case of the revocation of management under this Act by order of the Supreme Court, the MHRT or by the Guardianship Tribunal, a copy of the order is served on the NSW Trustee.

98   Estate to be handed over on termination of management

(cf PE Act, ss 39 and 40)

(1)  If the management of the estate of a managed person by the NSW Trustee terminates (other than because of the death of the person), the NSW Trustee must, subject to any order of the Supreme Court or the Guardianship Tribunal:

(a)  pay to the person, or as the person directs, all money standing to the credit of the current account of the person in the common fund, and

(b)  hand over to the person, or as the person directs, all chattels and documents forming part of the estate of the person.

(2)  The receipt of a person in accordance with whose direction money is paid or chattels or documents are handed over under this section is an absolute release to the NSW Trustee from liability in respect of any action taken by the NSW Trustee under this section.

99   Protected person or legal representative bound by acts of NSW Trustee

(cf PE Act, s 45)

If the management of an estate of a person by the NSW Trustee is terminated, the person or the legal representative of the person is bound by and may take advantage of an act lawfully done by the NSW Trustee on behalf of the person:

(a)  as if the act had been done by the person himself or herself, and

(b)  to the extent to which the person had no capacity to do the act, as if the person were under no such incapacity.

100   Unclaimed personal effects and money

(cf PE Act, s 44)

(1)  The NSW Trustee may sell all personal effects in the hands of the NSW Trustee belonging to a person, and not claimed within 2 years from the date of termination of management of the estate of the person. The proceeds of the sale must be paid into the Consolidated Fund.

(2)  All money standing to the credit of the current account of a person in the common fund at the end of 6 years from the date of termination of the management of the estate of the person must be paid to the Consolidated Fund.

(3)  The owner of the proceeds of a sale referred to in subsection (1) or of any money referred to in subsection (2) is, on proving ownership, entitled to recover the proceeds or money from the Treasurer.

(4)  Any such proceeds are, or money is, appropriated from the Consolidated Fund for the purpose of enabling its payment to the person and the Treasurer may withdraw the proceeds or money from the Consolidated Fund and pay the proceeds or money to the person accordingly.