Page 3817 - Week 12 - Wednesday, 19 October 2005
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This bill is based on the New South Wales model and would allow family members or, in the event of disputes or problems within the family, a neutral third party to administer the missing person’s, family member’s, estate by seeking a declaration from the Guardianship and Management of Property Tribunal. If the missing person returns, they then can resume management of their own affairs.
Efforts to locate missing persons are presently hindered by the refusal of government and non-government authorities to provide information of evidence of life, on the grounds of privacy. The inability of families to look after the interests of their loved ones or for dependants to access their financial resources certainly causes great stress and emotional hardship.
I must say that the ACT at present is in a better situation than New South Wales was pre-2004. Our Public Trustee Act 1985 does at least enable the Public Trustee to apply to the ACT Supreme Court for an order to appoint the Public Trustee as manager of property where the whereabouts of the owner of the property is unknown or whether it is not known if the owner is dead or alive. So there is some limited protection here.
However, there is no ability for the family to adopt this procedure and cut out the Public Trustee. There is no ability for the family to apply to administer the whole of the deceased person’s estate. The Public Trustee, of course, charges a fee. As I indicated, it has a limited application here. It would be far simpler if there were a much more liberal regime to enable members of the family especially to take over administration of a missing person’s estate.
In the ACT at present, the Public Trustee, where property is valued at $10,000 or less and without making an application formally to the Supreme Court, can become manager of a property by filing in the office of the court a notice of election. They then would become manager of the property in respect of which the order is made. But again, a fee is charged there. I must say this is not a situation that occurs regularly in the ACT. I am advised by the Public Trustee that only on very rare occasions have they taken any steps. They are looking at a handful. However, it is a fact that people go missing in the ACT.
In New South Wales, as a result of their amendments last year, the class of persons who can apply to administer a missing person’s estate are: a domestic partner of the person; a relative of the person; a business partner or employee of the person; the Attorney-General; the Protective Commissioner; and anyone else who has an interest in the property. In the ACT, instead of the Protective Commissioner, I have added the Public Trustee and the Public Advocate as the two suggested bodies. I have been advised by Parliamentary Counsel that they would be appropriate here.
Apart from that, effectively I have replicated the New South Wales act. By doing so, I have made it possible for the families of a loved one to administer the estate in a simple and cost-effective way. This bill would apply to property valued from 1c up to millions of dollars.
Parliamentary Counsel has spoken to the Public Trustee on this matter. I understand that the Public Trustee have no problems with this. It is, after all, much simpler than the current processes and certainly covers far more possibilities than are allowed at law at
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