Public Trustee (Public Trustee and Guardian) Amendment Bill

Second Reading

I am pleased to introduce the Public Trustee (Public Trustee and Guardian) Amendment Bill 2020. The bill amends the Public Trustee Act 1995 and various other acts to effect a merger of the offices of the Public Trustee and the Public Advocate. For those who are following this debate, I particularly refer to the provisions of the Guardianship and Administration Act 1993, which accommodates the provision of the establishment, terms of engagement, powers and the like of the Public Advocate.

There are approximately 700 joint clients who receive support from both the Public Trustee and the Public Advocate. Amalgamating the two services will provide a greater opportunity to provide a coordinated service for this client group. This significant reform will result in one entity delivering for all clients a consistent, cohesive and simpler service that takes a more holistic approach to meeting their needs. With the merged entity, clients and their families can expect to go to one place for all their needs relating to administration and guardianship. They can expect greater coordination in relation to the management of their affairs, improved responsiveness for complex matters that have urgent or pressing needs and better information sharing.

The Public Trustee has broad-ranging functions under the Public Trustee Act 1995, as well as other legislation. Its services include the preparation of wills and enduring powers of attorney, acting as executor for deceased estates, personal financial management, funds management and taxation assistance. Under the Guardianship and Administration Act 1993, the Public Trustee can be appointed by the South Australian Civil and Administrative Tribunal (SACAT) as administrator in respect of the estates of persons unable to look after their own health, safety or welfare or unable to manage their own affairs due to mental health issues or other specified conditions.

The Public Advocate, as I have indicated, is established under the Guardianship and Administration Act. Under that act, the Public Advocate may be appointed by SACAT as the guardian of last resort for persons unable to look after their own health, safety or welfare or unable to manage their own affairs due to mental health issues or other specified conditions. Broadly speaking, a guardian is responsible for decisions about the accommodation, health access and lifestyle of protected persons.

The Public Advocate also has other important functions relating to the needs of mentally incapacitated persons, including systemic and individual advocacy, dispute resolution, education and investigation. I pause to say that both the Public Trustee and the Public Advocate, and their extensive teams, currently do provide very valuable services to South Australians. As many members would appreciate, circumstances where there is a dispute in a family as to who should take responsibility for decision-making can be a very vexed issue and be very difficult for the families and friends of that person. Therefore, the roles of both the Public Trustee and their officers and the Public Advocate and their officers provide a very valuable service to South Australians and their families in these circumstances.

Under the reform reflected in the bill, all the statutory functions of the Public Trustee and the Public Advocate are to be maintained. The Public Trustee will be named the 'public trustee and guardian', and all statutory functions currently held by the Public Trustee and the Public Advocate will become functions of the public trustee and guardian. The office of the public trustee and guardian will replace the offices of the Public Trustee and Public Advocate. The bringing together of the functions of guardianship and administration within the one statutory office of public trustee and guardian substantially mirrors reform undertaken in the Australian Capital Territory in 2016.

After all of the matters that have been presented to me, our government supports this and I consider it to be worthy of replicating here. The reform is not a budget savings measure. I will repeat that: this reform is not a budget savings measure. There will be no reduction in services, and upon the merger taking place, the budget of the Office of the Public Advocate, together with all its staff, will be added to the budget and staff of the Public Trustee.

The focus of the reform is to achieve a better delivery of service to some of the state's most vulnerable people. Clause 8 of the bill amends section 4 of the principal act and makes provision for the appointment of the public trustee and guardian. Clause 62 of schedule 1 to the bill deletes part 2 of the Guardianship and Administration Act, pursuant to which the Public Advocate is currently established and its functions are set out.

Clause 9(2) of the bill amends section 5(2) of the principal act to set out the functions and powers of the public trustee and guardian. It adds to the functions currently exercised by the Public Trustee which are set out in section 5(2)(a), those currently exercised by the Public Advocate. Clause 10 amends section 6 of the principal act, which deals with the ministerial control. The current ministerial power of control and direction on matters of policy only in respect of the functions of the Public Trustee has been retained; however, pursuant to proposed section 6(1a), that power will not apply in respect of functions being transferred to the public trustee and guardian which are presently undertaken by the Public Advocate.

Currently, under the Guardianship and Administration Act, the functions of the Public Advocate are expressly not subject to ministerial direction or control, and that independence is retained in respect of the public trustee and guardian's future exercise of those functions.

Other clauses of the bill insert into the principal act powers or obligations to be held or owned by the public trustee and guardian that replace equivalents currently held or owned by the Public Advocate under the Guardianship and Administration Act. For example, clause 9(3) inserts subsection 5(5) which grants a power regarding the establishment of committees for the purpose of providing advice to the public trustee and guardian in relation to the performance of its functions.

Clause 11 inserts section 6A relating to the public trustee and guardian raising matters with the minister and Attorney-General. Clause 57(3) inserts section 51(2)(ab), which requires the public trustee and guardian to include in its annual report 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.

This bill aims to improve and better coordinate the services provided to our vulnerable citizens. South Australians expect and deserve high quality services that are tailored to their needs, and this is particularly true for those who are vulnerable and require support due to limitations in their decision-making capacity. This reform supports this main objective, and ensures our justice policies and legislative reforms reflect contemporary needs—one of the priorities outlined in our government's justice agenda.

I commend the bill to members and I seek leave to insert a detailed explanation of clauses in Hansard without my reading it.

Leave granted.

 

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Public Trustee Act 1995

4—Amendment of long title

This clause makes a consequential amendment.

5—Amendment of section 1—Short title

This clause makes a consequential amendment.

6—Amendment of section 3—Interpretation

This clause makes consequential amendments.

7—Amendment of heading to Part 2

This clause makes a consequential amendment.

8—Amendment of section 4—Public Trustee and Guardian

This clause amends section 4 of the principal Act to provide that there is to be a Public Trustee and Guardian who will be appointed by the Governor on terms and conditions determined by the Governor for a term not exceeding 7 years.

This clause removes the requirement that the office holder be an employee in the Public Service.

The clause also sets out the circumstances in which the office of Public Trustee and Guardian becomes vacant and the circumstances in which the Governor may remove the Public Trustee and Guardian from office.

The clause also notes that the Public Trustee and Guardian is the same body corporate as the Public Trustee under the Public Trustee Act 1995.

9—Amendment of section 5—Functions and powers

This clause amends section 5 of the principal Act to set out the functions of the Public Trustee and Guardian.

This clause further provides that the Public Trustee and Guardian may establish committees to provide advice in relation to the performance of the Public Trustee and Guardian's functions and that such committees will be taken to be advisory bodies for the purposes of the Public Sector (Honesty and Accountability) Act 1995.

10—Amendment of section 6—Ministerial control

This clause amends section 6 of the principal Act to set out the circumstances in which the Public Trustee and Guardian is, and is not, subject to control and direction by the Minister.

11—Insertion of section 6A

This clause inserts section 6A into the principal Act to allow the Public Trustee and Guardian to raise concerns with the Minister and Attorney-General and request that a report of a matter raised be laid before both Houses of Parliament.

This clause further provides that the annual report of the Public Trustee and Guardian must include a summary of the matters raised by the Public Trustee and Guardian.

12—Amendment of section 7—Execution of documents

This clause makes a consequential amendment.

13—Amendment of section 8—Delegations

This clause amends section 8 of the principal Act to provide that the Public Trustee and Guardian may delegate a function or power (other than a prescribed function or power) and to allow for further delegation of a function or power.

14—Amendment of section 9—Administration of deceased estate

This clause makes consequential amendments.

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

This clause makes a consequential amendment.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

18—Amendment of section 13—Administration of trust estate

This clause makes a consequential amendment.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

22—Amendment of section 17—Custodian trustee

This clause makes a consequential amendment.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments and replaces the divisional penalty with a maximum penalty of $25,000 or imprisonment for 1 year.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

32—Amendment of section 27—Investment of estate funds

This clause makes a consequential amendment.

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

This clause makes consequential amendments.

34—Amendment of section 29—Common funds

This clause makes consequential amendments.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

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

This clause makes a consequential amendment.

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

This clause makes a consequential amendment.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

46—Amendment of section 41—Termination of management

This clause makes consequential amendments.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

51—Amendment of section 45A—Recovery of GST

This clause makes consequential amendments.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

54—Amendment of section 48—Dividends

This clause makes consequential amendments.

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

This clause makes consequential amendments.

56—Amendment of section 50—Accounts and external audit

This clause makes consequential amendments.

57—Amendment of section 51—Annual reports

This clause makes consequential amendments and provides that an annual report of the Public Trustee and Guardian must include prescribed particulars of applications by the Public Trustee and Guardian for the issue of a warrant under the Guardianship and Administration Act 1993.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

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

This clause makes consequential amendments.

61—Substitution of section 55

This clause replaces the current regulation making provision with a new provision that provides for the making of regulations and fee notices.

Schedule 1—Related amendments and transitional provisions etc

This Schedule:

makes related amendments to various Acts, principally to replace references to the Public Advocate and Public Trustee with references to the Public Trustee and Guardian

deletes Part 2 of the Guardianship and Administration Act 1993 which establishes the office of the Public Advocate

includes transitional provisions.

Debate adjourned on motion of Mr Brown.