Aged and Infirm Persons' Property Act 1940

This

Act may be cited as the Aged and Infirm Persons' Property Act 1940.

In this Act, unless the context or subject matter otherwise requires—

court means—

the

Supreme Court; or

in relation to a matter in which the District Court has jurisdiction—the Supreme Court or the District Court; or

in relation to a matter in which an employment court has jurisdiction—the Supreme Court, the District Court or the employment court;

domestic partner means a person who is a domestic partner within the meaning of the

Family

Relationships Act 1975, whether declared as such under that Act or not;

employment court means the South Australian Employment Tribunal established under the

South

Australian Employment Tribunal Act 2014—

in

Court session as the South Australian Employment Court; or

constituted of a member of the Tribunal who is, or at least 1 of whom is, a President or a Deputy President of the Tribunal;

manager means a person appointed to be manager of a protected estate under this Act; and where more than one person is so appointed, means either all the persons so appointed or each of those persons, as the context requires;

proclaimed state means a country, state or territory declared by proclamation to be a proclaimed state for the purposes of this Act;

protected estate means the real and personal estate of a protected person, or such

part thereof as is the subject matter of a protection order;

protected person means a person who or whose estate or part thereof becomes the subject of a protection order;

spouse—a person is the spouse of another if they are legally married.

The

Governor may, by proclamation, declare any country, state or territory to be a proclaimed state and may, by subsequent proclamation vary or revoke any such declaration.

The

Supreme Court has jurisdiction to hear and determine any application or other proceeding under this Act.

Where an action for damages for personal injury is brought in the District

Court, the Court has jurisdiction in that action to make a protection order under section 8A and, if the Court makes such an order, the Court has jurisdiction to hear and determine any consequential or related proceeding under this Act.

If an action for damages for personal injury is brought in the employment court, the court has jurisdiction in that action to make a protection order under section 8A and, if the court makes such an order, the court has jurisdiction to hear and determine any consequential or related proceedings under this Act.

Any proceedings under Part

2 may be heard in chambers, and any proceedings under Part

3 shall be heard in chambers.

The court shall have, and may exercise jurisdiction under Part

2 of this Act—

if the person in respect of whom the protection order is sought, or has been made, is, or was at the time of the commencement of proceedings under that Part, domiciled or resident within the State; or

if the property in respect of which the protection order is sought, or has been made, is situate within the State.

Subsection (3) of this section shall be construed as being in addition to, and not in derogation of, any principle of law upon which the jurisdiction of the court under Part 2 of this Act might otherwise be founded.

If any circumstances arise for which no procedure is provided by this

Act, or if there is any doubt as to what is the correct procedure, the court may direct what shall be done in any particular case, or that the procedure which has been adopted shall be deemed proper, or may make such order to meet the circumstances of the case as the court thinks fit: Provided that no such direction or order (even though not appealed against) shall operate so as to bar or prejudice the court from giving further or other directions at the hearing of any proceedings under this Act if, in the interest of justice, the court thinks fit so to do.

Subject to any direction by the court to the contrary, an application for a direction under subsection (1) may be made without notice to any other party.

Where it is made to appear to the satisfaction of the court that any person is, by reason of age, disease, illness, or physical or mental infirmity—

unable, wholly or partially, to manage his affairs; or

subject to, or liable to be subjected to, undue influence in respect of his estate, or the disposition thereof, or of any part thereof; or

otherwise in a position which in the opinion of the court renders it necessary in the interest of that person or of those dependent upon him that his property should be protected as provided by this Act, the court may make a protection order in respect of the estate or part of the estate of that person.

Where it is made to appear to the satisfaction of the court that any person is, by reason of his taking or using in excess alcoholic liquors, or any intoxicating, stimulating, narcotic, or sedative drug, unable, wholly or partially, to manage his affairs, whether such inability is continuous or occasional, the court may make a protection order in respect of the estate or part of the estate of that person, anything in any other Act to the contrary notwithstanding.

Except in the case of an application made under subsection (1) of section 8A of this Act, every application for a protection order shall be made by originating summons, and may be made—

by the person whose property is sought to be protected; or

by the spouse or domestic partner of such person; or

by any near relation by blood or marriage of such person; or

by the Public Trustee; or

by any other person who adduces proof of circumstances which in the opinion of the court make it proper that such other person should make the application.

Where the application is made by any person other than the person whose property is sought to be protected, the originating summons shall be served upon such last-mentioned person, unless the court in any special case otherwise directs.

Where, in any action by a person for damages for personal injury sustained by him, it appears to the court that that person suffers or is likely to suffer from some physical or mental infirmity by reason of which he is—

unable, wholly or partially, to manage his affairs; or

subject to, or liable to be subjected to, undue influence in respect of his estate, or the disposition thereof, or of any part thereof; or

otherwise in a position which in the opinion of the court renders it necessary in the interests of that person or of those dependent on him that his property should be protected as provided by this Act, subject to subsection (2) of this section the court may, on its own initiative or on the application of a prescribed person and before assessing the amount of the damages, make a protection order in respect of the estate or

part of the estate of the person in respect of whom the damages are to be awarded.

The court shall, before making a protection order under this section—

where the application is made by a prescribed person, other than the person in respect of whom the damages are to be awarded, cause notice of its intention to consider the making of the order to be given personally to that person, unless the court in any special case otherwise directs; and

receive such evidence and hear such argument relevant to the matter as to the court seems desirable or expedient.

A reference in subsection (1) of this section to an action includes a reference to an action which had been commenced before, and which had not been completed by, the day on which the Aged and Infirm Persons' Property Act Amendment Act 1973 came into operation.

In this section a prescribed person means—

the person in respect of whom the damages are to be awarded; or

the spouse or domestic partner of that person; or

any near relation by blood or marriage of that person; or

the

Public Trustee; or

any other person who adduces proof of circumstances which in the opinion of the court make it proper that that person should make an application or be otherwise heard in the proceedings.

Before making any protection order in respect of any person, the court may in any manner which it thinks fit examine personally such person with or without the attendance of any other persons interested.

Before making a protection order in respect of any person, the court may order that an investigation into the affairs of such person shall be made by a prescribed officer and may adjourn the proceedings until a copy of the report of the officer is received by the court.

The officer shall, as soon as practicable, conduct the investigation and send a written report thereon to the Minister and a copy thereof to the court.

Before making a protection order in respect of such person, the court may receive the copy of the report in evidence and may have regard to the matters contained in the report.

For the purposes of any investigation under this section, the officer or a Public Service employee assisting the officer may enter any building or premises where any person whose affairs are being investigated is present.

The owner and person in charge of the building or premises and every person having the care or control of the person whose affairs are being investigated shall, if so required by the officer or a Public

Service employee assisting the officer, give the officer or employee all assistance in connection with the investigation which he is reasonably able to give or any papers, books or other documents relating to such person which he may have in his possession or under his control.

Maximum penalty: $100.

Proceedings for a contravention of subsection (5) of this section shall be disposed of summarily.

In this section—

Minister means the Minister responsible for the administration of the Family and Community Services Act 1972;

prescribed officer means the chief executive, or the nominee of the chief executive, of the administrative unit of the Public Service that is, under the

Minister, responsible for the administration of the Family and Community Services Act 1972.

If the court thinks fit to make a protection order, the court shall, in and by the protection order, appoint the spouse, domestic partner or near relation by blood or marriage of the protected person, or some other person, or any body corporate incorporated in this State by or pursuant to any law of this State, either alone or with any other person or persons, or the Public Trustee alone, to be the manager to take possession of and to control and manage all or such part or parts of the estate of the protected person as the court may direct.

The court may in any case appoint the Public Trustee alone to be manager, but shall not appoint any person to be manager together with the Public Trustee.

The court may, if it thinks fit, require any manager other than the

Public Trustee to give such security to the Public Trustee as to the court seems fit for the due performance of the duties of manager.

If by the protection order any person other than the Public Trustee is appointed to be manager, the court shall cause a copy of the protection order to be supplied to the Public Trustee.

The court may rescind any protection order.

The court may from time to time vary any protection order so as to provide that the protection order shall apply to any part of the estate of the protected person to which, at the time of the variation, the protection order does not apply or so as to provide that the protection order shall cease to apply to any part of the said estate.

Subject as hereinafter provided in this subsection, a protection order shall be determined by the death of the protected person. If for any special reason the court thinks it desirable so to do, the court may direct that the protection order shall remain in force for any period not exceeding two months after the death of the protected person but in any such case and notwithstanding the direction of the court, the protection order shall be determined if grant of probate of the will or administration of the estate of the protected person is granted by the court under the Succession

Act 2023.

The court may by the protection order or from time to time, except from the estate of the protected person to be taken possession of and controlled by the manager any part of the said estate.

The court may permit any such part to remain in the possession of the protected person, or of the spouse, domestic partner or child of the protected person. The court may from time to time direct that such possession shall be uncontrolled or that it be subject to such terms and conditions as are, from time to time, imposed by the court.