Page 3818 - Week 12 - Wednesday, 19 October 2005
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present. At present, only the Public Trustee has the ability to go to the Supreme Court on those limited grounds that I mentioned.
Turning to the bill itself: the bill changes the legislation by adding to the Guardianship and Management of Property Amendment Act a new section 8AA. It does that in clause 4, which deals with the management of a missing person’s property. What this provides, firstly, is that the tribunal has to be satisfied that someone is a missing person; that that person is normally domiciled in the ACT; that, while that person is missing, there is likely to be a need for a decision in relation to a property; and that they are likely to be adversely affected if a manager is not appointed.
Secondly, the tribunal may be satisfied that a person is missing only if the tribunal satisfies itself that it is not known if the person is alive; that reasonable efforts have been made to find the person; and that for at least 90 days the person has not contacted anyone living at their last known home address and has not contacted any friends or relatives with whom they would be likely to communicate. Contact has been described as a telephone call or even the sighting of a person.
If those criteria are satisfied, the tribunal may, by order, appoint a manager to manage all or part of a missing person’s property and estate with the powers, which the tribunal is satisfied are necessary, to allow the manager to make decisions in relation to the property just as if the missing person was a protected person. A protected person is defined in section 5 subsection (1) of the principal act as a person with impaired decision-making ability. The powers that are given to the manager are the powers that the missing person would exercise themselves were they there.
As indicated, an application for appointment of a manager under the new section can be made by any of the following: a domestic partner, which would most likely be the norm; a relative; a business partner or employee—and remember that the tribunal would be able to order that a manager manage part of the missing person’s property so that, if there were business interests which needed to continue to protect the person, a business partner or employee could do that; the Attorney-General; the Public Trustee or the Public Advocate; and anyone with an interest in the property. So this is a replication of the New South Wales section, with the Public Trustee or the Public Advocate being put in in place of the New South Wales Protective Commissioner.
The reason that the Attorney-General and the Public Trustee or the Public Advocate are in there is in case there are disputes—for example, family disputes. If there are allegations that it might be improper for a family, business partner or whatever to administer the estate, it still ensures the rights of the missing person are protected by a public official, in that case, doing the administration.
Clause 6 of the bill provides for the tribunal to remove the manager of a missing person’s property if it is satisfied on application by the person, that is, by the missing person or anyone else, that the missing person is alive or dead, in which case any will they have would clock in, or presumed to be dead if missing. The current status there, I am advised, is that if someone is missing for 7 years they are presumed to be dead.
The rest of the bill makes necessary procedural changes and deletes section 34 subsections (1) (b) and (c) of the Public Trustee Act. This bill, as I said, is far more
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