Public Trustee and Guardian Act 1985

This Act is the Public Trustee and Guardian Act 1985.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to the following offences against this Act (see Code, pt 2.1):

 s 65A (Use and disclosure of protected information).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

Note 2 Penalty units

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

A term defined in the Administration Act has the same meaning in this Act.

Part 2 The public trustee and guardian

Division 2.1 Administration

The Public Trustee and Guardian is the person exercising the functions of public trustee and guardian (however described) in the public service.

The director‑general may appoint 1 or more public servants as deputy public trustee and guardian.

Note 1 For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207).

A deputy public trustee and guardian may exercise a function of the public trustee and guardian, subject to any direction of the public trustee and guardian.

The public trustee and guardian—

is a corporation sole by the name of the Public Trustee and Guardian for the Australian Capital Territory; and

has perpetual succession; and

shall have an official seal; and

is capable, in the corporate name of the public trustee and guardian, of acquiring, holding and disposing of real and personal property and of suing and being sued.

The Financial Management Act 1996, section 73 (1) (Nature of relevant territory authorities) does not apply in relation to the public trustee and guardian.

The public trustee and guardian may, from time to time, appoint a person to be an agent of the public trustee and guardian.

Note 1 For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207).

A person who is appointed under this section as an agent is subject to the direction, control, supervision and inspection of the public trustee and guardian in all matters relating to the business for which the person is appointed.

The public trustee and guardian may delegate to a member of the public trustee and guardian’s staff any function under this Act or another territory law.

Note 1 For laws about delegations, see the Legislation Act, pt 19.4.

Note 2 Function includes authority, duty and power (see Legislation Act, dict, pt 1).

However, a function may be delegated to a person only if the public trustee and guardian is satisfied that—

the function is of a kind that is appropriate to be exercised by the person; and

the person has the qualifications, knowledge and experience appropriate for the function to be properly exercised; and

the person will comply with the Guardianship and Management of Property Act 1991, section 4 when exercising the functions of the public trustee and guardian under that Act; and

the person will comply with the obligations of the public trustee and guardian under the Human Rights Act 2004.

Note The public trustee and guardian must ensure the delegated function is properly exercised (see Legislation Act, s 238). Also, the public trustee and guardian may provide that the delegation has effect only in stated circumstances or subject to stated conditions, limitations or directions (see Legislation Act, s 234 and s 239).

Division 2.2 Protection and liability of public trustee and guardian

In this section:

official means—

a person who holds, or has held, the position of public trustee and guardian or deputy public trustee and guardian; or

a person who is, or has been, an agent of the public trustee and guardian; or

a public servant who is exercising, or has exercised, a function relating to the business or affairs of the public trustee and guardian.

An official is not civilly liable for anything done or omitted to be done honestly and without recklessness—

in the exercise of a function under a territory law; or

in the reasonable belief that the act or omission was in the exercise of a function under a territory law.

Any liability that would, apart from this section, attach to the official attaches instead to the Territory.

Where—

the public trustee and guardian—

has obtained a grant of probate of the will, or administration of the estate, of a person under the Administration Act; or

is otherwise administering the estate of a person under the Administration Act; or

is acting as executor or trustee under the will of a person; and

it is found—

that the person is alive; or

in a case in which the person was believed to have died intestate—that the person died testate; or

in a case in which the person was believed to have died testate—that the person died intestate and that the document that was believed to be the person’s last will has no testamentary validity or effect; or

that a document that was believed to be the person’s last will is not the person’s last will;

all acts done or omitted to be done by the public trustee and guardian in good faith while acting in any capacity in connection with the grant, estate or will are as valid and effectual as if the public trustee and guardian had been lawfully entitled to act in that capacity.