Private Manager s Handbook

Transcription

1 Private Manager s Handbook

2 ISBN: State of New South Wales through the NSW Trustee and Guardian May You may freely deal with this work for any purpose, other than for profit. This document has been prepared by the Department of Justice and Attorney General for general information purposes. This information is on our website: For alternative formats such as braille, audiotape, large print or computer disk contact the NSW Trustee and Guardian by phone: (02) (voice), (TTY for people who are deaf or have a speech impairment), fax: (02) or [email protected]

3 Contents Introduction 2 The Role 3 The framework 3 The principles to follow 3 Consulting 4 What will I have to do? 4 Do I get paid? 5 Getting Started 6 Step 1 Appointment 6 Step 2 Manager s Plan completed 6 Step 3 Directions and Authorities document completed 6 Step 4 Relevant people informed 7 Your Liaison Officer 7 General Issues 8 Conflicts of Interest 8 Wills 8 What can I spend money on? 8 Authorised spending 8 Other spending 9 Advancing money Giving the managed person some financial control 9 Working with NSW Trustee and Guardian 10 Responsibilities of the NSW Trustee and Guardian 10 Fees 10 Lodging security 10 Authorised Visitors 11 Accounts 11 Financial Records 11 Annual accounts 12 Other Issues 13 Guardians 13 Joint Managers 13 Changing Managers 13 Revocation of a financial management order 13 Does a financial management order apply outside NSW? 13 Interstate or overseas assets 13 The Manager lives outside NSW 14 The managed person lives outside NSW 14 Ask for help early 14 Removing a Manager 14 Legal Issues 15 Signing documents 15 Court cases 15 Power of Attorney 15 The managed person makes a Will 15 The Manager s role in other legal matters 16 The managed person is a trustee 16 Deceased estates 16 The managed person runs a business 16 Death of the managed person 16 Assets 17 Investing 17 Dealing with real estate 17 Buying assets other than real estate 17 Selling assets other than real estate 17 Insurance 18 Making gifts and loans 18 Employment of Carers 18 Hiring a paid carer 19 Insuring an unpaid carer 19 Disagreeing with a Decision 20 Making a complaint 20 Asking for a review of NSW Trustee and Guardian s decision 20 Useful contacts 21 Appendices Appendix A - Manager s Plan 24 Appendix B - Sample Letter 32 Appendix C - NSTWG s Fee s 33 Appendix D - NSW Trustee and 34 Guardian s Pro-forma Proposals

4 Introduction You have taken on a very important role in becoming a Manager and agreeing to look after the financial affairs of a person who, through incapacity, is unable to do so themselves. Fundamental to the role is an understanding of what Managers do. This handbook aims to help you gain that understanding. Written in plain English, it outlines your role and responsibilities and the role of the NSW Trustee and Guardian (NSWTG). It covers topics of common interest to Managers. You will, however, face unique situations in fulfilling your responsibilities and may need to refer to the separate guidelines listed in Appendix D which are available from NSWTG. NSW Trustee and Guardian liaison officers will also be able to answer questions. We have published the handbook to help you make sure the person you now represent receives the best possible service. Feedback is always welcome and will assist us in planning future editions. Imelda Dodds A/CEO NSW Trustee and Guardian 2 Private Manager s Handbook

5 The Role The framework The Supreme Court of New South Wales or the Guardianship Tribunal has appointed you as the Manager for a managed person. A managed person is someone who has been declared incapable of managing their own financial affairs and who needs someone with legal authority to act on their behalf and in their best interests. Overseeing you in this role is the NSW Trustee and Guardian, an independent public official who operates under the NSW Trustee and Guardian Act The NSW Trustee and Guardian provides you with your authority to act as Manager in a document called Directions and Authorities. The focus is on authorising and directing Managers and overseeing their performance of their obligations and duties. You are free to make decisions within the limits of the powers and authorities given to you. NSW Trustee and Guardian will only step in where you act outside those powers or where the decision you make is significantly flawed or clearly against the interests of the managed person. The principles to follow As a Manager, you will make the decisions that the managed person would normally have made about managing their money. You become what is called a substitute decision-maker. Your decisions about spending and investing the managed person s money should be carefully considered from a financial viewpoint. You should also make decisions with the aim of maximising the managed person s quality of life. The interests of the managed person come first. It is not your role to preserve assets for the people who may eventually inherit the estate. The NSW Trustee and Guardian Act 2009 Section 39 sets out the general principles to follow as a substitute decision-maker. Section 39 states: It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation. Private Manager s Handbook 3

6 Consulting Regular consultation with the managed person on financial matters is highly desirable. In trying to preserve family relationships in line with the general principles in Section 39 you should consider the views of the person s immediate family and other people closely involved in the managed person s life and/or the appointed guardian. The views of close friends and the people who will benefit from the managed person s Will are also important. Consultation on all major financial decisions is essential. What will I have to do? Some of your activities as a Manager are similar to the activities you undertake in managing your own finances. You will have to: collect all income and entitlements due to the managed person pay all their expenses and debts ensure that all real estate and other assets such as motor vehicles they own are insured. You may also need to take tionworkers compensation or other insurance if carers are employed inform relevant authorities such as Centrelink, the Department of Veterans Affairs and the Australian Taxation Office of any change in the circumstances of the managed person keep accurate records of income and expenditure lodge tax returns on their behalf ensure all their important documents, such as their Will and title documents are in a safe place. You also have specific obligations relating to the overview of your financial management by the NSW Trustee and Guardian. These are: following any directions given by the NSW Trustee and Guardian providing NSW Trustee and Guardian with all relevant information relating to the financial affairs of the managed person providing security requested by NSW Trustee and Guardian. The chapter in this handbook entitled Working with the NSW Trustee and Guardian has further information on this topic lodging annual accounts of your administration of the managed person s financial affairs with NSW Trustee and Guardian ensuring that at all times you keep the managed person s financial affairs separate from your own, including using separate bank accounts. 4 Private Manager s Handbook

7 Do I get paid? Generally, Managers are not paid for their work. However, with the approval of the NSW Trustee and Guardian, you can be reimbursed for reasonable out-of-pocket expenses incurred in performing your role. You must record all such reimbursements as expenditure in the annual accounts. There are some exceptions regarding payment for Managers. Payments can be made where, due to the complexity of the managed person s estate, the Manager devotes a large amount of time to financial management or where professionals such as a solicitor or an accountant are appointed. The NSW Trustee and Guardian considers such payments on an individual basis and prior approval for payment must be obtained. Private Manager s Handbook 5

8 Getting Started There are several steps to formalising your authority to manage the managed person s financial affairs: Step 1 Appointment You will usually receive a financial management order appointing you as a Manager within 14 days of the hearing before the Supreme Court of New South Wales or Guardianship Tribunal. Before you can commence duty as a Manager the NSW Trustee and Guardian must issue you with a document called Directions and Authorities. Step 2 Manager s Plan completed The NSW Trustee and Guardian needs information from you about the managed person s assets and liabilities and their projected annual income and expenditure. To provide the necessary information, you should complete the Manager s Plan, a copy of which is included in this handbook as Appendix A or on NSW Trustee and Guardian s website at under Financial Management/Publications. After receiving the completed form, a liaison officer at NSW Trustee and Guardian will contact you to arrange an appointment to discuss the powers and authorities you may need in order to manage the person s estate. A telephone discussion can be arranged if necessary. Step 3 Directions and Authorities document completed Based on the information provided, the Directions and Authorities document sets out the powers you require as a Manager. It will include a number of standard powers, for example, to receive income and pay day-to-day expenses. The document will also include powers tailored to the particular financial situation that you will be managing. Some non-standard powers that can be included in the Directions and Authorities are the powers to: Sell, purchase or lease real estate Investigate an incident and provide a report and recommendation Commence or defend legal proceedings. The Directions and Authorities can be changed as circumstances require. If you need authorisation to do something that is not detailed in the document, you must write to the NSW Trustee and Guardian and ask for approval. Your liaison officer will be able to clarify whether or not you have the authority to take a particular course of action. Where the Guardianship Tribunal makes a time limited order (reviewable/interim orders) the Directions and Authorities document will state a review or expiry date for the order. The Direction and Authorities document is invalid after the expiry date and after that date you must return it to NSW Trustee and Guardian. If the order is renewed you will receive a new document. 6 Private Manager s Handbook

9 Step 4 Relevant people informed You need to inform the people and organisations that you deal with in managing the person s affairs that you have the legal authority to do so as a Manager. These organisations could include: banks and financial institutions where the managed person has funds invested Centrelink Department of Veteran s Affairs Australian Taxation Office, if tax returns are to be lodged NSW Office of State Revenue, if land tax is applicable insurance companies professional advisors such as the managed person s solicitor and accountant nursing home/hostel or other accommodation where the managed person lives debtors and creditors of the managed person such as the local council, telephone provider, gas/electricity provider, Roads and Traffic Authority (RTA), Superannuation Funds Companies where the managed person has investments (including share registries). Organisations may ask for a copy, or to sight the original, of the order appointing you as a Manager and your Directions and Authorities. Your Liaison Officer The liaison officer acts as a link between you and the NSW Trustee and Guardian. Their role is to provide information to you and monitor how you perform as a Manager. They are responsible for: developing and issuing the Directions and Authorities ensuring you provide reports as required on your financial management assessing your proposals to be given powers not initially included in the Directions and Authorities examining your annual accounts taking action if you do not comply with the directions of the NSW Trustee and Guardian. While the liaison officer will provide a general guide to good process, it is not their role to provide step-by-step help on how you should carry out your duties or make decisions on your behalf. A sample letter which you could adapt to tell people about your appointment is included in this handbook in Appendix B. Private Manager s Handbook 7

10 General Issues Conflicts of Interest You may sometimes find yourself in a situation where your personal and financial interests are in conflict with the interests of the person whose financial affairs you manage. A conflict of interest is any action that sees a Manager s interest being similar or at odds to those of a managed person. For example, a conflict of interest will occur when the Manager: wants to borrow money from the managed person s estate proposes that either they or a close relative or friend moves into the managed person s house proposes that the managed person invest money in a company or business in which the Manager has an interest seeks to gain a greater interest in a deceased estate and in so doing adversely affects the managed person s rights or entitlements. It is important to recognise when a conflict of interest arises and where you will have difficulty in making impartial decisions as a Manager. Being in such a situation does not mean you have done anything wrong. Should you believe that you have a conflict of interest, contact your liaison officer for advice as soon as possible. Wills You need to read the managed person s Will because some of its terms may affect the decisions you make about the managed person s estate. For example, if the managed person were leaving a gift of real estate in their Will, you would only sell the property when the proceeds were essential to their ongoing care. As Wills are confidential documents the contents should not be disclosed to other people. You may be requested to send a copy of the Will to NSW Trustee and Guardian. What can I spend money on? Authorised spending The Directions and Authorities gives you the power to meet a range of expenses on behalf of the managed person. Such expenses include: general living costs such as accommodation, care and medical expenses other costs associated with the managed person s property, for example: rates, taxes, insurance, repairs, electricity, gas and telephone any items that will improve the managed person s life, for example, a new wheelchair. You can spend reasonable amounts on these items, taking into account the managed person s financial circumstances fees for lawyers, accountants and other professionals. 8 Private Manager s Handbook

11 Other spending You will require the approval of the NSW Trustee and Guardian to cover expenses other than those outlined previously. Some examples include: paying for reasonable and affordable costs of the people who may rely on the income of the managed person such as their spouse, partner or children and who the managed person was supporting or helping to support and is responsible for continuing to do so donations to charity - if the managed person had regularly made donations, it may be reasonable to continue doing so proposed expenditure which may not be included in the Directions and Authorities such as buying a car or buying real estate. When thinking about spending of this nature, you must, before seeking approval, consider whether enough money will be left to meet the managed person s day-to-day, long-term and special needs. Advancing money As Manager, you can decide for the sake of convenience to advance some of the managed person s money to an organisation or a third party. For example, you can advance money to the aged care facility or group home where the managed person is living. Or you can pay the managed person an allowance through a carer or family member if they are living at home. Before advancing money from the managed person s estate, contact your liaison officer who will be able to organise the appropriate authority for you. After making the advance, you will need to monitor the situation to make sure that the money is being used to meet the managed person s needs. Giving the managed person some financial control It is consistent with the principles of the NSW Trustee and Guardian Act 2009 which are covered earlier in this handbook to allow the managed person, in appropriate circumstances to control some of their own money. Allowing them a measure of control will enhance their independence. While there is a risk that the managed person may spend some money unwisely, you can minimise the risk through informal support and by helping them to develop money management skills. Sometimes a financial management order from the Guardianship Tribunal will allow the managed person to manage an asset or some income themselves. If you think that the managed person should control some of their money, but the financial management order does not permit this, you will have to get the approval of the NSW Trustee and Guardian. Private Manager s Handbook 9

12 Working with NSW Trustee and Guardian Responsibilities of the NSW Trustee and Guardian The NSW Trustee and Guardian has two clients the Manager and the person with a disability whose finances have been placed under management. In looking after the interests of both, the NSW Trustee and Guardian is responsible for: issuing Directions and Authorities that give the Manager individually tailored powers to administer the managed person s estate deciding on the security needed to protect the managed person s interests overseeing the performance of the Manager deciding on the format for annual accounts seeking reports from an Authorised Visitor or other professionals about the managed person s needs releasing funds to meet the managed person s needs authorising the sale or purchase of major assets by the Manager authorising implementation of investment proposals submitted by the Manager seeking a review of Managers appointments if they do not follow the NSW Trustee and Guardian s directions. Fees The NSW Trustee and Guardian Act 2009 and NSW Trustee and Guardian Regulation 2008 require the NSW Trustee and Guardian to charge fees for undertaking its responsibilities and functions. These fees are payable from the estate of the managed person. The NSW Trustee and Guardian fee schedule for private management services is attached to this handbook as Appendix C. You must pay all fees charged by the NSW Trustee and Guardian within 21 days of the invoice date. The NSW Trustee and Guardian will send you a reminder if you have not paid the fees by the due date. Failure to pay fees may result in NSW Trustee and Guardian commencing a debt recovery process or seeking a review of the financial management order. Lodging security To help protect the estate of the managed person from fraud or loss, NSW Trustee and Guardian decides whether the Manager must lodge particular legal and financial documents or cash deposits with the NSW Trustee and Guardian. These decisions are made on a case by case basis. You may be required to lodge one or more of the following: title deed to real estate owned by the managed person letters from solicitors relating to the non release of title deeds without the NSWTG s prior approval 10 Private Manager s Handbook

13 cash funds to be held by the NSW Trustee and Guardian (funds held by the NSW Trustee and Guardian attract a competitive interest rate) letters from financial institutions agreeing not to release or deal with investments made by the managed person without first obtaining the written consent of the NSW Trustee and Guardian. Security requirements are included in the Directions and Authorities. NSW Trustee and Guardian can review the requirements at any time. Authorised Visitors The NSW Trustee and Guardian may appoint an Authorised Visitor, who is a health professional with expertise in the field of disability, to prepare independent reports on the managed person. These reports give the NSW Trustee and Guardian information about: the managed person s living environment, quality of life and level of social interaction their mental and intellectual state, including their ability to have an input to decisions any outstanding needs they may have their likely future needs. In the report, the Authorised Visitor may make recommendations for improving the managed person s quality of life. You will be advised of any recommendations on which you should take action. Accounts All accounts and investments should be held in the managed person s name alone. You should particularly note that you cannot open an account in the your name as trustee for the managed person. Having a single bank, building society or credit union account through which all money is channelled makes it easier for you to keep track of money coming in and going out of the managed person s estate. This account can be an existing account of the managed person or you can open a new account in their name. Financial records You are required to keep full details of the managed person s assets, debts, income and expenditure. In keeping financial records: where possible, pay by cheque or debit card as this provides proof of payment keep all necessary records, such as receipts, invoices for all payments you make for the managed person when paying invoices, write paid together with the date of payment on the invoice. A fee is charged for visits by an Authorised Visitor and this fee is to be paid from the managed person s estate. Private Manager s Handbook 11

14 Annual accounts The NSW Trustee and Guardian usually requires you to send in an annual account of the financial dealings you have undertaken for the managed person. This is to ensure you are administering the estate in line with your powers under the Directions and Authorities and any additional approvals given by the NSW Trustee and Guardian. You also need to prepare a final set of accounts for NSW Trustee and Guardian within a month after being discharged as a Manager or within three months of the death of the managed person. There are different formats for accounts. The format required depends on the complexity of the managed person s estate. Your liaison officer can advise you on the format you will need to follow and answer other questions about the accounts. The accounts forms and guidelines are available from NSW Trustee and Guardian or on our website at nsw.gov.au under Financial Management / Publications. 12 Private Manager s Handbook

15 Other Issues Guardians The Supreme Court or the Guardianship Tribunal may appoint a guardian to make decisions about specific health and lifestyle issues for the managed person. As well as being appointed Manager, you may also be appointed as guardian. If a separate guardian is appointed, you should consult with the guardian on all major financial decisions such as choosing suitable accommodation for the managed person. You should also advise the guardian of any recommendations made by the NSW Trustee and Guardian s Authorised Visitor. See the chapter called Working with NSW Trustee and Guardian for more details about Authorised Visitors. Joint Managers Where you are appointed as a Joint Manager, you must work with the other Manager in looking after the managed person s estate. You have a shared, not a separate, responsibility for all decisions. This includes signing cheques and deciding about how to invest funds. If either of the Managers dies, or is relieved of their management role, the remaining Manager takes on full responsibility for the estate. Changing Managers You can be replaced as a Manager if: you resign voluntarily you do not meet your obligations you have a conflict of interest and it is in the best interests of the managed person that another Manager be appointed. If you want to resign, write to the Guardianship Tribunal if the tribunal made the financial management order. The chapter in this handbook called Useful Contacts lists the address and telephone number for the tribunal. If the Supreme Court of New South Wales made the order, contact your liaison officer for further information. Should the Manager die, a replacement Manager will need to be appointed. Revocation of a financial management order The Supreme Court of New South Wales or the Guardianship Tribunal can revoke the order if, according to a doctor, clinical psychologist, rehabilitation specialist or other appropriate professional, the managed person has regained the ability to manage their own financial affairs. An application will need to be made to the court or tribunal which initially made the order. The Guardianship Tribunal can also revoke an order if it considers that the order is no longer required and it should be revoked in the best interests of the managed person. Does a financial management order apply outside NSW? Interstate or overseas assets Your power to deal with such assets depends on the acceptance of your authority in the state or country where the assets are located. A financial management order will generally only apply to assets in NSW. This means that you will have to seek a financial Private Manager s Handbook 13

16 management order in the relevant state, territory or country for assets outside of NSW. The Manager lives outside NSW If you live outside NSW, you can still manage NSW assets provided you sign an agreement or undertaking to comply with directions from NSW Trustee and Guardian. The agreement is called the Undertaking by Manager Residing Outside New South Wales. The managed person lives outside NSW The financial management order still applies regardless of whether the managed person lives outside NSW. If both the managed person and the Manager live outside NSW, it is probably best to have the NSW order cancelled and apply for a financial management order in the relevant state or country (but not if there is real estate in NSW to be managed or sold). Ask for help early Wherever possible NSW Trustee and Guardian will work with Managers to assist them to fulfil their role. If you are having difficulties you should contact your liaison officer to discuss the matter. Removing a Manager In circumstances where a Manager fails to undertake their role according to the Directions and Authorities provided or fails to act in the managed person s best interests NSW Trustee and Guardian may make an application to have their appointment as Manager terminated and someone else appointed in their place. 14 Private Manager s Handbook

17 Legal Issues 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. Private Manager s Handbook 15

18 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 apply to the Supreme Court for an order to exercise the trustee powers on their behalf (NSW Trustee and Guardian Act 2009, Section 78). 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 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 of the person s estate and the lawyer acting on probate/ administration of the estate lodge the final accounts within three months of the date of the person s death. The appointed executor/administrator 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. 16 Private Manager s Handbook

19 Assets Investing All investments must be held in the managed person s name. When investing a managed person s money, you must comply with the Trustee Act Under that Act, you can choose investments suited to the needs of the managed person but must use the care and skill that a prudent person would use in managing someone else s financial affairs. The Act requires that investments be reviewed at least once each year. You must provide a certificate when lodging the annual accounts stating that you have reviewed the performance of the managed person s investments and are satisfied that these meet the requirements of the Act. The Act allows you to obtain independent investment advice and the Directions and Authorities gives you the authority to do so. NSW Trustee and Guardian will normally require Managers to seek such advice where estates are large or complex. You can charge the cost of obtaining investment advice to the estate of the managed person. You can ask NSW Trustee and Guardian s financial planners to prepare a financial plan for the managed person s estate. Only in extraordinary circumstances will a fee for the preparation of a plan be charged. You should speak with your liaison officer if you would like to make an appointment with the planners. See: Requirements for Managers Seeking to Invest Managed Person s Funds and Guidelines for Completing Annual Accounts which explain how to lodge an investment proposal. Dealing with real estate Managers who are proposing to deal with real estate in any manner other than that already authorised in the Directions and Authorities must submit a proposal addressing issues set out in the real estate pro-forma proposals for: Purchase Sale Leasing Occupation by Family or Friend Renovation These pro-forma proposals are available from NSW Trustee and Guardian or on our website at under Financial Management /Publications. Buying assets other than real estate Unless you have the power under the Directions and Authorities, the NSW Trustee and Guardian must give approval for you to buy a major asset such as a car, or any item of value such as antique furniture or jewellery. To seek approval, you must forward a written proposal to NSW Trustee and Guardian. See the guidelines for the purchase of these types of assets. Selling assets other than real estate The sale of major assets may impact on the managed person. The impact may be financial, as in the sale of shares, or on lifestyle, as in the sale of a car, furniture or personal effects. Private Manager s Handbook 17

20 As well as thinking about how the sale will affect the managed person, you must consider whether the managed person or their family has asked that particular items be kept, or whether the managed person has left particular items in their Will. To sell a major asset, you need to submit a proposal to NSW Trustee and Guardian. See the guidelines which are available for the sale of assets other than real estate. Insurance You are required to insure the managed person s assets for their full insurance value and to take out workers compensation, public liability, personal liability and any other insurance cover that may be required. You may wish to obtain advice from an insurance broker. NSW Trustee and Guardian will require you to provide evidence that appropriate insurance is in place and maintained. Making gifts and loans NSW Trustee and Guardian must give prior approval for all gifts. Where the managed person had previously made small gifts, for example of a seasonal nature or for birthdays, approval will usually be given. In other cases the Manager will need to demonstrate why they believe such a gift should be made, the effect on the estate and provide the views, if possible, of the managed person. You do not have authority to lend the managed person s money under the NSW Trustee and Guardian Act Private Manager s Handbook

21 Employment of Carers Hiring a paid carer A paid carer can sometimes help with domestic tasks and personal care, allowing the managed person to continue living in their own home. Hiring carers should be done through a commercial carer agency that accepts employer responsibility for the carer that is the agency takes responsibility for paying leave entitlements, workers compensation insurance, superannuation, income tax and related expenses. Unless you engage a carer in this way, the managed person will have to meet all employer responsibilities and may face financial penalties if they fail to do so. If a carer is employed directly by a managed person you must ensure all appropriate workers compensation and other insurance is in place. Most insurance providers will provide this cover for a small charge. The Manager cannot employ themselves as a paid carer as this would create a conflict of interest. Insuring an unpaid carer If a carer is unpaid, you will still need to arrange appropriate insurance for them such as workers compensation, public liability insurance and income protection insurance. Most insurance providers will provide this cover. Private Manager s Handbook 19

22 Disagreeing with a Decision Making a complaint If you wish to make a complaint about NSW Trustee and Guardian s actions you should do the following: Contact your liaison officer to discuss your concerns. If this does not resolve the problem you can write to or speak to the liaison officer s supervisor in the Private Management Branch. If you are still unhappy you can write to the NSW Trustee and Guardian s Manager, Community Relations. Asking for a review of NSW Trustee and Guardian s decision 1. Contact your liaison officer to discuss your concerns about the decision. 2. If this does not resolve the problem you can write to or speak to the liaison officer s supervisor in the Private Management Branch. Reviewable decisions are: decisions made in accordance with the NSW Trustee and Guardian s functions. The Tribunal cannot review decisions made in accordance with a direction by the Supreme Court of New South Wales non-approval by the NSW Trustee and Guardian of the Manager s decision to allow or not allow the managed person to deal with their own estate decisions made by the NSW Trustee and Guardian in authorising and directing the Manager. Any interested person can apply for a review of decision by the ADT. Appeals can be made to the Supreme Court in limited circumstances. If you wish to do that you should seek legal advice. 3. If you are still unhappy you can write to the Manager, Community Relations asking for an internal review of the decision. You must do that within 21 days of the date on which you are told of NSW Trustee and Guardian s decision. 4. If you are not satisfied with the outcome of the internal review you can seek an independent review by the Administrative Decisions Tribunal. You must do this within 28 days of the letter telling you of the result of the review. Not all of NSW Trustee and Guardian s decisions are able to be reviewed by the ADT. 20 Private Manager s Handbook

23 Useful contacts Administrative Decisions Tribunal Level 15, 111 Elizabeth St SYDNEY NSW 2000 Freecall: Telephone: TTY: Fax: Internet: Aged Care Assessment Teams Freecall: Alzheimer s Australia NSW Macquarie Hospital Campus Cox s Rd entrance NORTH RYDE NSW 2113 Dementia hotline: Telephone: Fax: [email protected] Internet: Brain Injury Association of NSW 17 Macquarie Rd AUBURN NSW 2144 Freecall: Telephone: Fax: [email protected] Internet: Carers NSW Level 18, 24 Campbell Street SYDNEY NSW 2000 Freecall: Telephone: Fax: [email protected] Internet: Centrelink Freecall: Multilingual calls: TTY: Internet: Community Aged Care Packages Freecall: Department of Veterans Affairs Level 1, Tower B 280 Elizabeth St SURRY HILLS NSW 2010 Freecall: (country) (metropolitan) Internet: Guardianship Tribunal Level 3, 2a Rowntree St BALMAIN NSW 2041 Freecall: Telephone: Fax: [email protected] Internet: Home Care Service Department of Ageing, Disability and Home Care Freecall: Telephone: TTY: [email protected] Internet: Older+People/Home+Care+Service.htm Intellectual Disability Rights Service 2C/199 Regent St REDFERN NSW 2016 Freecall: Telephone: Fax: [email protected] Internet: Private Manager s Handbook 21

24 Law Access NSW (free telephone and online legal information and advice) Telephone: Internet: Legal Aid NSW 323 Castlereagh St SYDNEY NSW 2000 Telephone: TTY: Fax: Internet: Veterans Advocacy Service (free legal advice) Telephone: (reverse charges accepted) Meals on Wheels (NSW) Level 4, 80 Cooper St SURRY HILLS NSW 2010 Telephone: Fax: Internet: Multicultural Disability Advocacy Association 40 Albion St HARRIS PARK NSW 2150 Freecall: Telephone: TTY: Fax: Internet: NSW Office of Fair Trading 1 Fitzwilliam St PARRAMATTA NSW 2150 Telephone: or for languages other than English TTY: Fax: Internet: NSW Trustee and Guardian Private Management Branch 160 Marsden Street Parramatta NSW 2124 Telephone: Outside Sydney: TTY: Fax: [email protected] Internet: Office of the Public Guardian 160 Marsden Street Parramatta NSW 2124 Freecall: Telephone: TTY: Internet: Private Guardian Support Unit Office of the Public Guardian 160 Marsden Street Parramatta NSW 2124 Freecall: Telephone: TTY: Internet: Supreme Court of NSW Equity Division - Protective Queen s Square 184 Phillip Street SYDNEY NSW 2000 Telephone: Fax: [email protected] Internet: 22 Private Manager s Handbook

25 Appendices Appendix A - Manager s Plan Appendix B - Sample Letter Appendix C - NSTWG s Fee s Appendix D - NSW Trustee and Guardian s Pro-forma Proposals

26 Appendix Manager s A Plan - Manager s Plan MANAGER S PLAN PLEASE PRINT USE BLOCK CAPITALS AND ANSWER ALL QUESTIONS If space is insufficient please attach a separate sheet. When completed please return this document by mail, facsimile or to PLEASE PRINT USE BLOCK CAPITALS AND ANSWER ALL QUESTIONS NSW Trustee and Guardian If space is insufficient please attach a separate sheet. When completed Locked please Bag return 5115, this Parramatta document by NSW mail, facsimile 2124 or to The Office is situated NSW at 160 Trustee Marsden and Guardian Street, Parramatta NSW 2124 Telephone 8688 Locked 2600 Bag Fax 5115, 8688 Parramatta NSW [email protected] 2124 The Office is situated Web at site Marsden Street, Parramatta NSW 2124 Telephone Fax [email protected] Web site 1. DETAILS OF MANAGED PERSON MANAGER S PLAN Surname/Family Name.. Other Names (Given Names)... Current address and style of accommodation (e.g., nursing home) Postcode Telephone.. Previous address (only if current address is different).. Postcode. Telephone.. Date of Birth. Marital Status... Country of Birth Language spoken Does the managed person regard herself/himself as belonging to any specific ethnic, cultural or religious group? Yes No If so, which group?... Does the managed person speak a language other than English at home? Yes No If yes, what other language?. Is the managed person of Aboriginal or Torres Strait Islander origin? No Yes, Aboriginal Yes, Torres Strait Islander (If the person is of both Aboriginal and Torres Strait origin, please tick both the yes boxes) Is the managed person of Australian South Sea Islander origin? Yes No What type of disability does the managed person have: Age related Brain Injury HIV Dementia Intellectual Multiple Physical Other (Please specify) 24 Private Manager s Handbook Manager s Plan (June 2010) 1

27 Appendix Manager s A Plan - Manager s Plan 2. DETAILS OF MANAGER / S 2 Name. Address... Postcode..... Telephone (H) Telephone (W) Mobile. Facsimile .. Relationship to managed person.. Do you require special assistance when communicating or meeting with NSW Trustee and Guardian, for example, language interpreter, signing interpreter, hearing bop or wheelchair/mobility access? Yes No If yes, please detail. JOINT MANAGER (IF APPLICABLE) Name. Address Postcode Telephone (H) Telephone (W) Mobile. Facsimile ... Relationship to person under management... Do you require special assistance when communicating or meeting with NSW Trustee and Guardian, for example, language interpreter, signing interpreter, hearing bop or wheelchair/mobility access? Yes No If yes, please detail.. 3. DETAILS OF FAMILY/FRIENDS OF MANAGED PERSON (If deceased, write Deceased under Address) Spouse/Partner... Address.. Telephone. Children Address/ Telephone Father Address/ Telephone Mother Address/ Telephone Brothers/Sisters Address/ Telephone Private Manager s Handbook Plan (June ) 2

28 Appendix Manager s A Plan - Manager s Plan 4. OTHER CONTACTS 3 Address/ Telephone Case Manager - Advocate.... Carer. Service Provider.. Guardian.. Significant Other(s) Address/ Telephone ASSETS AND LIABILITIES 5. REAL ESTATE - LAND Description (e.g. farming property, vacant land, house and land, strata, etc.) Address Postcode Estimated value $... Title Deeds Held by Title is in the name/s of.. How is the title held, ie, Tennants in Common/Joint Tennants... What portion of the property does the managed person own If mortgaged, name of mortgagee. Owed $... Who occupies the property... Building insured with.. Value $... Contents Insured with.... Value $... Please provide a copy of the house and contents insurance policy. PROPOSAL Please provide a detailed proposal for the future management of the property (eg, sale, lease, other), the anticipated time frame for completing the transaction and your reasons for this. If you propose to sell, lease or have family reside in the property, you must complete and lodge a proposal addressing the appropriate NSW Trustee and Guardian requirements for the course of action you wish to take. 26 Private Manager s Handbook Manager s Plan (June 2010) 3

29 Appendix Manager s A Plan - Manager s Plan 4 The following documents are available from your NSW Trustee and Guardian Liaison Officer. Proposal by Manager for Sale of Real Estate Proposal by Manager for Leasing of Real Estate Proposal by Manager Concerning Occupation of a Managed Person s Property by a Family Member If more than one property is owned, please attach a separate proposal for each. 6. SIGNIFICANT HOUSEHOLD ITEMS INCLUDING JEWELLERY, ART WORKS, ANTIQUES, COLLECTIONS ETC Item Estimated Market Value.. $..... $. Items insured with. Please provide a copy of the insurance policy... $... What is your plan for the future use retention or disposal of these items. 7. BANK ACCOUNTS, DEPOSITS, MANAGED FUNDS & SHARES Description Institution Account No Amount Bank Accounts Credit Union Accounts..... Building Society Accounts.. Term Deposits.... Managed Funds Other Investments (ie, shares, bonds, superannuation etc). Private Manager s Manager s Handbook Plan (June ) 4

30 Manager s Plan Appendix A - Manager s Plan 5 Other (eg, Debts due to the protected person). You must provide a proposal for the management of these investments which addresses NSW Trustee and Guardian s Requirements for Manager s Proposal to invest Managed Person s Funds. 8. MOTOR VEHICLES Make Model.. Reg. No..Expires. Address where garaged. Used by Insured with..policy number. PROPOSAL (e.g. Store, Maintain, Sell) DETAILS OF LEGAL ACTION PENDING INCLUDING CLAIMS FOR COMPENSATION (If applicable) Please set out particulars of any accidents within the last six years in which the managed person was injured... What action (if any) has been taken to pursue a claim for damages?... Name of Lawyer acting Please attach a report detailing the current status of the legal action or claim and your recommendation for the future conduct of the matter Private Manager s Handbook Manager s Plan (June 2010) 5

31 Appendix Manager s A Plan - Manager s Plan 10. BUSINESS OR COMPANY INTERESTS 6 Name of Company Interest/holding Estimated Value $ $ TOTAL $ Please provide a report as to the future operation of the business or company and if the managed person acted as a director of a company please provide your recommendation for appointing a replacement director if required ESTIMATED BUDGET Sources of Income Amount per year Value Regular Expenses Amount per year Aust Govt Pension $ Nursing Home Fees $ Other Pensions $ Rent Paid $ Superannuation $ Rates $ Salary or Wages $ Utilities $ Interest $ Insurances specify $ Dividends $ - House $ Rent $ - House and contents $ Other Income $ - Motor Vehicle $ $ - Life Insurance $ $ - Other $ $ Medical Expenses $ $ Pharmaceuticals $ $ Private Medical Insurance $ $ Other $ $ $ Total Income $ Total Expenses $ Value Income less Expenses Surplus /Deficit $ If there is not a surplus of income over expenses, please explain how you propose to fund the deficit Private Manager s Handbook 29 Manager s Plan (June 2010) 6

32 Appendix Manager s A Plan - Manager s Plan 12. DEBTS AND LIABILITIES Description Owed to Amount $ $ $ $ Total $ WILL Has the managed person made a Will? Yes/No If yes, please attach a copy. Who holds the Will? OTHER Is there anything else you think the NSW Trustee and Guardian should know in relation to the management of the managed person s estate? 30 Private Manager s Handbook Manager s Plan (June 2010) 7

33 Appendix Manager s A Plan - Manager s Plan 15. CONSULTATION 8 I have consulted with the managed person in preparing this proposal: Yes / No If yes, describe how and when consultation with the managed person occurred: If no, please provide reasons: I have consulted with the following other people in preparing this proposal: I am aware that I am required to consult with the managed person and family members before making any significant decisions and recommendations regarding the person's estate. I am aware that I am not to dispose of property which I know is subject to a specific testamentary gift in the managed person s Will without the prior written authority of the NSW Trustee and Guardian. I am aware that I am not authorised to make a gift or loan from the managed person s estate without the prior written authority of the NSW Trustee and Guardian. The Manager s Directions and Authorities document provides the Manager with authority to collect information to complete this form. Incomplete forms may be returned to Managers for further information. Your name (please print).. Signature. Date All personal information being collected will be dealt with in accordance with the Privacy and Personal Information Act The person s personal information will be held on the person s file at this Office. This Office may also need to contact other people or organisations to get details of the person s estate or to exchange information in the management of person s affairs. Please contact your Liaison Officer if you wish to find out about or correct the details held. 07/ /2010 Private Manager s Manager s Handbook Plan (June ) 8

34 Appendix B - Sample Letter (insert date) The Manager or The Proper Officer (insert organisation s name & address) Dear Sir or Madam Re: (insert Managed person s name) I write to advise you that on / / I was appointed as the financial manager of (Managed person s name), by an Order made by the Supreme Court of New South Wales/the Guardianship Tribunal (delete one), subject to direction and authorisation of the NSW Trustee and Guardian. I enclose a copy of the Order and the Directions and Authorities as issued by the NSW Trustee and Guardian on / / establishing my authority to act on behalf of (Managed person s name). Please note that the Directions and Authorities direct/give me authority to (include as per the Directions and Authorities and as appropriate for the organisation being addressed, e.g., take custody of papers and documents, open & operate bank accounts, provide a letter undertaking that... will not be dealt with or released without the prior written consent of the NSW Trustee and Guardian). Please note that all correspondence in respect of (Managed person s name) s (list items e.g...accounts/pension) should be addressed to me at (insert your postal address). Yours faithfully Manager s name Manager appointed under the NSW Trustee and Guardian Act 2009/Guardianship Act Private Manager s Handbook

35 Appendix C - NSWTG s Fees The NSW Trustee and Guardian Regulation 2008 sets out the fees NSW Trustee and Guardian can charge. Details of NSW Trustee and Guardian s new fee structure (from 1 April 2009) are given below. INVESTMENT FEE For the management of an investment for a managed person in an NSW Trustee and Guardian investment fund NSW Trustee and Guardian charges: 0.5% per annum of the value of the investment. Funds held as security are invested in NSW Trustee and Guardian s investment funds and attract the Investment Fee. The Investment Fee is calculated daily and deducted from the funds as a whole at the end of the month. INCOME FEE On the net annual income of a managed person in respect of whom a manager has been appointed NSW Trustee and Guardian charges 4% per annum. The income fee is capped at $2, p.a. Interest earned on funds held as security is included as income. EXEMPTED INCOME Centrelink, Department of Veterans Affairs and any overseas pension (equivalent to a Centrelink pension) income up to the level of the Centrelink Single Aged Pension is exempt from the 4% income fee. Any allowance relating to Centrelink and Department of Veterans Affairs pensions is also exempt from the 4% income fee e.g. pharmaceutical allowance, mobility allowance, rent assistance and telephone allowance. This concession only applies in respect of annual accounts lodged whilst the managed person is alive and provides relief to those managed persons who might otherwise suffer financial hardship if such a concession was not provided. However, the above concession does not apply in respect of annual accounts lodged following the death of a managed person as the payment of fees raised would no longer cause a financial hardship on the late managed person. These fees reflect the complexity of examination of the accounts. $100 for simple accounts $200 for medium accounts $300 for complex accounts FINANCIAL PLAN FEE No fee is charged for the preparation of a financial plan except in circumstances where a plan is particularly complex. However if the manager invests the funds according to the plan prepared by the NSW Trustee and Guardian Financial Planning Unit the preparation fee will be reimbursed in total. NSW Trustee and Guardian also charges, in addition to the above fees, any GST payable in respect of the service for which the fee is payable. Information as at June 2009 Private Manager s Handbook 33

36 Appendix D - NSW Trustee and Guardian s Pro-forma Proposals NSW Trustee and Guardian has developed a series of pro-forma proposals to assist Managers in their role. Your liaison officer will provide you with a copy of the relevant pro-forma proposals as necessary. However, you can request a copy of the proforma proposals at any stage by contacting your liaison officer. Pro-formas are available on the following topics: Annual accounts Employment of Carers for Managed Persons Guidelines Payment for Past Gratuitous Care Investment of funds Lease of Real Estate Purchase of Motor vehicles Occupation of Managed Persons Property by Family or Friend Purchase of Real Estate Sale of Real Estate Legal Proceedings 34 Private Manager s Handbook

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38 36 Private Manager s Handbook (Translating and Interpreting Service TIS)

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40 Contact Telephone: Phone: (02) Outside Sydney: TTY: Fax: (02) Visit: NSW Trustee and Guardian 160 Marsden Street Parramatta NSW 2124 Mail to: Locked Bag 5115 Parramatta NSW