The Protective Office was established by the Protected Estates Act, 1983 which authorised the appointment of a Protective Commissioner and a Deputy Protective Commissioner, and other staff necessary to discharge the functions imposed upon the office by the Act. (1) The Act was proclaimed to commence from 5 August 1985. (2)
The role of the Protective Office was to manage the affairs of 'protected persons' by conducting an inquiry and reporting on a person or the estate of a person when required by the Supreme Court to do so. (3) The Commissioner had the authority
(a) to take evidence and for this purpose could subpoena people to attend a hearing and give evidence, and if required to produce records or documents as specified; to administer oaths; and to take recognisances (4)
(b) to examine and cross-examine witnesses; (5)
(c) to place advertisements if necessary to obtain information in relation to an inquiry or the affairs of a person (6)
(d) to receive directions from the Court in regard to inquiries to be undertaken, notices to be placed or otherwise to assist in the exercise of functions as Protective Commissioner. (7)
The Supreme Court could itself hear evidence of a person's capacity to manage his own affairs, direct the Protective Commissioner to do so or dispense with the inquiry. (8)
The Commissioner could investigate the affairs of a person found incapable in an other country, state or territory if the person owned property in New South Wales. (9)
The Supreme Court could appoint a suitable person to manage the estate of a protected person or could commit this to the Protective Commissioner (10) and the estates of persons placed in hospital by order of a stipendiary magistrate were managed by the Protective Commissioner unless the Supreme Court ordered differently. (11)
In managing an estate the Commissioner could carry out all functions necessary for the care and management of the estate and any other functions the Supreme Court may authorise. These functions could include the receipt of income, leasing, selling, entering contracts, carrying on a business, completing contracts, sequestration, bringing or defending legal actions and transferring land to the Real Property Act 1900. (12) The Commissioner could engage an agent to manage the estates entrusted to him and was not responsible for the default of the agent. (13)
The Commissioner could also execute any legal instrument on behalf of the protected person. (14)
Income from the estate was paid into a Trust Fund for the protected person. (15) Income from the estate could be used for the payment of debts, the maintenance, medical care and personal requirements of the protected person, in the event of his death funeral expenses, the maintenance of his immediate family, or the expenses of managing, maintaining and developing his property. The Protective Commissioner was prevented from investment in real estate except to improve the value of the person's assets or to provide a home for the person or his dependants. (16) If the Court appointed a manager of the estate and required him to give security this was considered not to have been given unless approved by the Protective Commissioner. (17)
Management of a person's estate ceased on the order of termination, a person ceasing to be a patient in hospital or the death of the person. (18) If a protected person was temporarily discharged from hospital the Protective Commissioner could, provided that adequate security was supplied, pass to the person some or any of the money being held in trust him or documents or other property which formed part of his estate. (19) When the patient was discharged from hospital, if the Commissioner was satisfied that he was capable of organising his own affairs all of the money being held in trust and all other property was returned to the owner. (20) However if the Commissioner was unsatisfied that the person could manage his affairs the estate continued under the control of the Commissioner unless a Mental Health Review Tribunal revoked the estate management arrangement. (21) If the money in the Trust Fund and other property had not been claimed within two years after the termination of a management agreement any money was transferred into the Consolidated Fund and property could be sold and the proceeds transferred into the Consolidated Fund. (22)
The actions lawfully performed by the Protective Commissioner while managing an estate had the same status as those undertaken by the protected person who was bound by or could benefit from these actions. (23) Prior to certain actions being undertaken the Protective Commissioner was required to consult with the protected person and/or his family. This consultation was required if the value of the property could be affected, consequences could follow, the action was necessary and practical, or the value of the estate would be affected without the action. (24) The personal property of the protected person was to be preserved particularly if the person or relatives had so requested. (25)
The Protective Commissioner could manage the estates of patients who were not protected persons on their request (or that of parents or guardians if they were below 18 years). In these cases the Commissioner could manage the estate in the same manner as the estates of protected persons. These voluntary arrangements were terminated at the patient's request. (26)
Other countries, states or territories could enter reciprocal arrangements with New South Wales regarding the protection of estates provided that the local legislation supported this reciprocality. (27)
From 1 August 1989 the Protective Commissioner became the Public Guardian and the Deputy Protective Commissioner became the Deputy Public Guardian. (28) The Public Guardian could become the Guardian of any temporary or continuing guardianship order made by the Guardianship Board. (29) The Public Guardian was to be forwarded a copy of each guardianship order for which the Guardian was other than the Public Guardian. (30) The Public Guardian could also request that the Guardianship Board review a guardianship order at any time. (31) He could also consent to medical or dental treatment for a person subject to a Guardianship order if there was no responsible person for the patient, or if the person could not be found. (32) The Public Guardian was also responsible for providing information to the public regarding: (a) the provisions of the Guardianship Act in relation to the appointment and functions of guardians; (b) the functions of the Public Guardian (c) the legal rights of persons in relation to the exercise of the duties of the Public Guardian (d) practices and procedures of the Public Guardian. (33)
The Protective Commissioner also filled the role of Registrar of the Protective Division of the Supreme Court of New South Wales.
On 5 April 1995 the Office of Protective Commissioner was placed in the Human Rights program of the Attorney General's Department where it remained until 2000. (34) In 2002 the agency became one that reported immediately to the Director General of the Attorney General's Department. (35)
From 1 July 2009 the Office of the Protective Commissioner was abolished by the NSW Trustee and Guardian Act 2009. (36) The Office of Protective Commissioner was succeeded by the NSW Trustee and Guardian. (37)
(1) Protected Estates Act, 1983 (Act No.179, 1983), s.5.
(2) NSW Government Gazette, 2 August 1985, p.3923.
(3) Ibid., s.6.
(4) Ibid., s.9(1).
(5) Ibid., s.10.
(6) Ibid., s.11.
(7) Ibid., s.12.
(8) Ibid., s.13.
(9) Ibid., s.14.
(10) Ibid., s.22.
(11) Ibid., s.23.
(12) Ibid., s.24.
(13) Ibid., s.25.
(14) Ibid., s.26.
(15) Ibid., s.27.
(16) Ibid., s.28.
(17) Ibid., s.31.
(18) Ibid., s.34.
(19) Ibid., s.37.
(20) Ibid., s.38.
(21) Ibid., s.41.
(22) Ibid., s.44.
(23) Ibid., s.45.
(24) Ibid., s.50.
(25) Ibid., s.51.
(26) Ibid., ss.62-64.
(27) Ibid., s.65.
(28) Disability Services and Guardianship Act, 1987, s.77.
(29) Ibid., ss.17(3)(b) and 17(4).
(30) Ibid., s.19.
(31) Ibid., s.25(3).
(32) Ibid., s.41.
(33) Ibid., s.79.
(34) Report of the Attorney General's Department for the year ended 30 June 1995, pp. 7, 47-48.
(35) Report of the Attorney General's Department for the year ended 30 June 2002, pp. 7, 77-78.
(36) NSW Trustee and Guardianship Act 2009 (Act No.49, 2009), Sch.1 cl.10(2).
(37) Ibid., Sch.1 cl.11.