An Act to amend the Protected Estates Act 1983 in relation to the Protective Commissioner’s powers of investment; and for other purposes.
1 Name of Act
This Act is the Protected Estates Amendment (Investment) Act 2000.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Protected Estates Act 1983 No 179
The Protected Estates Act 1983 is amended as set out in Schedule 1.
Schedule 1 Amendments
(Section 3)
[1] Section 4 Definitions
Insert in alphabetical order:costs includes fees, charges, disbursements, expenses and remuneration.Director-General means the Director-General of the Attorney General’s Department.investment fund means an investment fund established under section 54.reserve fund means a reserve fund established under section 54.
[2] Section 5 Protective Commissioner and other officers
Omit “Public Service Act 1979” from section 5 (1) and (2).Insert instead “Public Sector Management Act 1988”.
[3] Section 5A Delegation
Insert at the end of the section:(2) Without limiting subsection (1), the Protective Commissioner may delegate to any suitably qualified person the Protective Commissioner’s functions in relation to investment funds.
[4] Section 5B Protective Commissioner to be corporation sole for certain purposes
Omit “section 58” from section 5B (1) (a). Insert instead “this Act”.
[5] Section 10 Witness may be cross-examined
Omit “and expenses” from section 10 (2).
[6] Section 27 Payments into trust fund
Omit “Except as provided by section 8 (5), the” from section 27 (1).Insert instead “The”.
[7] Section 28 Disposition of money in hands of Protective Commissioner
Omit “, charges and expenses” from section 28 (1) (d).
[8] Section 28 (1) (g)
Omit the paragraph. Insert instead:(g) the investment of money, being money not required for the time being for a purpose referred to in paragraphs (a)–(f) above:(i) in any form of investment, or(ii) if the Protective Commissioner is aware that the protected person prefers a particular form of investment, in the form of investment preferred by that person.
[9] Section 28 (1A)
Insert after section 28 (1):(1A) The power to invest money under subsection (1) (g) (i) is to be exercised in accordance with the Trustee Act 1925.
[10] Section 28 (2)
Omit “The Protective Commissioner shall not invest any money comprising part of the estate of a protected person in the purchase of real estate as referred to in subsection (1), unless such a purchase”.Insert instead “Despite section 14DA of the Trustee Act 1925, the Protective Commissioner may purchase real estate under subsection (1) (g) (i) if it”.
[11] Section 28 (3)
Insert after section 28 (2):(3) For the purpose of ascertaining whether or not a protected person prefers a particular form of investment, the Protective Commissioner may have regard to the following matters:(a) any investments made by the protected person before his or her estate became subject to management under this Act, being investments of which the Protective Commissioner is aware,(b) any views expressed to the Protective Commissioner by the protected person regarding his or her preferred forms of investment,(c) any statements made to the Protective Commissioner by relatives of the protected person, and verified by statutory declaration, as to the views expressed to them by the protected person, either before or after his or her estate became subject to management under this Act, regarding his or her preferred forms of investment.
[12] Section 42 Death of protected person
Insert at the end of the section:(2) If a protected person dies, the Protective Commissioner may take such steps as are necessary to complete any transaction:(a) that relates to the protected person’s estate, and(b) that was commenced before the death of the protected person, and(c) to which the protected person was a party immediately before the protected person’s death.(3) Subsection (2) does not empower the Protective Commissioner to do anything in contravention of:(a) the directions of any executor, administrator or trustee of the protected person’s estate, or(b) any court order.
[13] Part 4
Omit the Part. Insert instead:Part 4 Investment of trust fund52 Trust fund to form common fund(1) Balances to the credit of all current accounts in the trust fund are, for the purposes of investment, one common fund.(2) The balance of a current account does not form part of the common fund if:(a) the current account is held by the Protective Commissioner jointly with another person, and(b) the other person has objected in writing to it forming part of the common fund.53 Investment of trust fundMoney in the trust fund may be invested:(a) in accordance with the Trustee Act 1925, in any investment, or(b) to the extent of not more than $1,000,000 at any one time, on deposit with the Treasurer for a period or periods not exceeding 12 months.54 Establishment of investment funds and reserve fund(1) For the purpose of investing money in accordance with section 53 (a), the Protective Commissioner is to establish:(a) one or more investment funds, and(b) a reserve fund.(2) The Protective Commissioner may from time to time transfer money from the trust fund to an investment fund or from an investment fund to the trust fund.(3) The Protective Commissioner may determine the classes of investments in which money in an investment fund may be invested and may vary the classes from time to time.(4) The Protective Commissioner is to keep an account for each investment fund showing the amounts that are from time to time to the credit of each current account from which the fund is derived.55 Application of money in investment fund(1) Money in an investment fund may be applied for the following purposes:(a) the making of investments authorised by this Part,(b) payment to the reserve fund of such amount as the Protective Commissioner may from time to time determine,(c) payment of such amount as the Protective Commissioner may from time to time determine in relation to the costs incurred by the Protective Commissioner:(i) in the exercise of the Protective Commissioner’s functions under this Act, and(ii) in the exercise of the Protective Commissioner’s functions as Public Guardian under the Guardianship Act 1987,(d) the making of periodic payments to the current accounts from which the fund is derived.(2) The amount referred to in subsection (1) (c) must not exceed such amount as is approved by the Director-General having regard to the Protective Commissioner’s current budget.(3) For the purpose of making payments referred to in subsection (1) (d):(a) any income arising from an investment fund must be periodically divided between each current account in the trust fund in proportion to the amounts invested from those accounts and the period of each investment, and(b) any profit or loss of a capital nature arising from that fund must be periodically divided between the current accounts in proportion to the amounts invested.56 Valuation of investment funds(1) The Protective Commissioner is to value each investment fund (including the investments in which the fund is invested) as at the first business day of each named month and, if the Protective Commissioner thinks fit, as at such other times as may be appropriate according to the nature of the particular fund.(2) Investments in and withdrawals from an investment fund are to be effected on the basis of the most recent valuation under this section.57 Application of money in reserve fundMoney in the reserve fund may be applied for the following purposes:(a) payment to an investment fund of such amount as the Protective Commissioner may from time to time determine as the loss upon realisation of any investment made from that fund,(b) payment of such amount as the Protective Commissioner may from time to time determine as the costs incurred in protecting investments made from an investment fund.58 Submission of budgets(1) Whenever directed to do so by the Director-General, the Protective Commissioner is to submit a budget to the Director-General in relation to the Protective Commissioner’s costs, including projected costs, in connection with:(a) the exercise of the Protective Commissioner’s functions under this Act, and(b) the exercise of the Protective Commissioner’s functions as Public Guardian under the Guardianship Act 1987.(2) The budget is to relate to such period, and include such information, as the Director-General directs.59 Advances from trust fund(1) The Protective Commissioner may make advances from the trust fund for the purposes of any estate being managed by the Protective Commissioner.(2) Any advance bears interest at the rate fixed by the Protective Commissioner.(3) The advance, and any interest on the advance, are a charge on the assets of the estate for whose purposes the advance is made.(4) If the advance is applied towards the discharge of any debt or liability, the charge under subsection (3) ranks in the same order of priority as the debt or liability.(5) Any interest received by the trust fund under this section is to be divided between each current account in proportion to the amounts of the advances.
[14] Section 66 Powers of Protective Commissioner as to property in New South Wales of incapable persons in reciprocating states
Omit “, charges and expenses” from section 66 (2) (a).
[15] Section 75 Sale by protected person may be set aside
Omit “(within the meaning of the Mental Health Act 1958)” from section 75 (1).
[16] Section 77 Costs may be paid out of estate
Omit “and expenses” from section 77 (1) and (3).
[17] Section 83
Insert after section 82:83 Personal liabilityA matter or thing done or omitted to be done by the Protective Commissioner or any person acting under the direction of the Protective Commissioner does not, if the matter or thing was done or omitted in good faith for the purpose of executing this or any other Act, subject the Protective Commissioner or person so acting personally to any action, liability, claim or demand.
[18] Section 84
Insert in appropriate order:84 Savings and transitional provisionsSchedule 1 has effect.
[19] Schedule 1
Insert at the end of the Act:Schedule 1 Savings and transitional provisions(Section 84)Part 1 General1 Regulations(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.Part 2 Provisions consequent on enactment of Protected Estates Amendment (Investment) Act 20002 DefinitionIn this Part:amending Act means the Protected Estates Amendment (Investment) Act 2000.3 Interest AccountAny money to the credit of the Interest Account referred to in section 54 (as in force immediately before its repeal by the amending Act) is to be paid into the current accounts in the trust fund in proportion to the amounts invested from those accounts and the period of each investment.4 Estates Guarantee and Reserve AccountAll money to the credit of the Estates Guarantee and Reserve Account referred to in section 55 (as in force immediately before its repeal by the amending Act) is to be paid into the reserve fund.5 Investment of fundsPending the establishment of the first investment fund under Part 4 (as replaced by the amending Act), the trust fund is taken to be an investment fund.6 AdvancesPart 4 (as replaced by the amending Act) applies to and in respect of any advance made before the commencement of that Part in the same way as it applies to and in respect of any advance made after that commencement.