|
Where am I now? Lawlink > NSW Trustee and Guardian > Manager's Handbook > Legal issues
|
Print page
|
Legal issues
Signing documents
Court cases
Power of attorney
The protected person makes a Will
The private manager’s role in other legal matters
The protected person is a trustee
Deceased estates
The protected person runs a business
Death of the protected person
Signing documents
You must sign legal documents for the managed person in a particular way. The way to sign is:
managed person's name
by (your signature)
your name
Manager appointed under the NSW Trustee and Guardian Act 2009/ Guardianship Act 1987
The NSW Trustee and Guardian must endorse certain documents, such as contracts for purchase or sale of real estate, after you sign them. Your liaison officer will let you know which documents need to be endorsed.
Court cases
You have power under the Directions and Authorities to obtain and pay for professional legal advice. If the solicitor recommends that you start court proceedings, the NSW Trustee and Guardian must first give approval. Court proceedings include:
- damages for injuries suffered in car accidents
- workers compensation claims
- claims for maintenance and child support
- claims to recover assets where the managed person may have been exploited
- claims by the managed person against a deceased estate.
If the NSW Trustee and Guardian consents to commencement or continuation of court proceedings, you will usually be given authority to:
- employ solicitors and legal counsel/barristers
- conduct legal proceedings and give instructions on behalf of the managed person to the solicitor and legal counsel
- if advised by legal counsel, enter negotiations for settlement.
In the event of legal proceedings against the managed person, you may, with the NSW Trustee and Guardian’s approval employ a solicitor and legal counsel to represent the managed person.
Power of Attorney
A power of attorney (including an enduring power of attorney) given by the managed person is suspended while there is a financial management order in place.
.
The managed person makes a Will
Although you cannot make or change a Will for the managed person, the person may still be able to make a Will. To make a valid Will, a person must have what is known as testamentary capacity. This includes the person’s ability to:
know what a Will is
understand generally the amount and type of property covered in the Will
understand that family members who are excluded from the Will may make a claim against the estate.
You should seek the advice of a legal practitioner if the managed person wants to make or change a Will.
The Manager’s role in other legal matters
The power of the managed person to deal with their estate is suspended while a financial management order is in place. If a contract they have signed prior to a financial management order being made is in their interests, you can apply to the NSW Trustee and Guardian to complete the transaction.
The managed person is a trustee
If the managed person is a trustee, you may with the approval of the Supreme Court exercise the trustee powers on their behalf.
Deceased estates
The Manager will only be given power by the Supreme Court to deal with a deceased estate in certain circumstances such as when the managed person is a beneficiary and/or executor of a Will or has an entitlement under the Family Provision Act 1982.
The managed person runs a business
Where appropriate, the NSW Trustee and Guardian may authorise the Manager to continue operating the managed person's business. Each case will be considered individually.
Depending on the situation, the NSW Trustee and Guardian may authorise the Manager to sell or close the business.
Death of the managed person
Your role as a Manager ends when the managed person dies. Your final duties are to:
- advise the executor of the person where there is a Will or, where there is no Will, the person's next of kin of the person's death and details of their estate
- send the NSW Trustee and Guardian a certified copy of the death certificate and details of the executor or administrator and the lawyer acting on the estate
- lodge the final accounts.
The appointed executor will then administer the managed person's estate and you should send them all documents relating to the estate and advise them that NSW Trustee and Guardian will be claiming fees from the managed person’s estate.
When the NSW Trustee and Guardian has examined the final accounts, the executor will be advised of any fees payable. After payment and on production of probate or letters of administration, the NSW Trustee and Guardian will release any funds or documents held as security in line with the written instructions of the executor.
If the estate is worth less than $10,000, the NSW Trustee and Guardian may release any funds or documents without production of probate or letters of administration. Contact your liaison officer for information on what you should do in this case.
|
|
