Public Trustee & Guardian Disputes

Estate Litigation

Have you had problems dealing with the QLD Public Trustee or NSW Public Trustee and Guardian?

Our experienced Estate Litigation Lawyers can help you remove the Public Trust Office and seek compensation for the mismanagement of your financial affairs, or that of a loved one.

Public Trustee Offices perform certain roles in our community, including acting as executor/administrator of deceased estates and managing the financial affairs of vulnerable individuals who are incapable of managing their own affairs.  It is our experience that the general public places blind trust in Public Trustee Offices due to the public nature of these organisations. Unfortunately, these government organisations do not always provide the expected service, leaving individuals and their families feeling frustrated and deflated.  It’s important for the community to understand there are alternative options available when seeking assistance with drafting a Will, Executor services, financial administration, establishing and managing trusts. 

It is also possible to remove the Public Trustee, and seek compensation for mismanagement of affairs.

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FAQs

The Public Trustee and Guardian are statutory agencies established to “protect, promote and support the rights, dignity, choices and wishes” of those vulnerable members in our society who have impaired decision-making capacity. Public Trust Offices are statutory bodies created to provide services to assist those who are more vulnerable in our society. Some examples of the services offered by Public Trust Offices can range from:

  • Acting as an Executor of an estate
  • Being appointed as Financial Manager of someone who may not have capacity to manage their own financial affairs. In New South Wales, this appointment is called Financial Manager, in Queensland this appointment is referred to as an Administrator.
  • Being appointed as a Trustee –if someone is unable to manage their finances –such as a minor, the Public Trustee can be appointed to manage investments, allocate allowances and manage trust funds.

 

There is a general assumption within the community that the QLD Public Trustee and NSW Public Trustee and Guardian are the most suitable and accessible options. Many people do not realise that there are several alternatives, including professionals and Private Trustee Companies, who can administer deceased estates and manage protected estates/conduct the role of trustee.

Generally speaking, yes, you can apply to a Court or Tribunal to remove the Public Trust Office from some roles such as the role of Financial Manager (NSW) or Administrator (QLD) for someone who may not have capacity to manage their own financial affairs. Usually, this involves applying to have the Public Trustee Office removed and replaced by a Private Trustee Company or Individual (if appropriate).

An application for a substitute decision-maker can be made to a Tribunal or a Court. If the incoming Financial Manager seeks to be paid (such as in the case with a Private Trustee company) the application must be made to the Court to seek the removal of a Public Trust Office from the role of Financial Manager and the appointment of the new Private Trustee. The reason a Court application is required, as opposed to an application through the Tribunal, is because when there is payment involved the Court essentially needs to approve it.
 
The following process will apply when removing the appointment of the Public Trustee in Court:
 
  • Seeking out an appropriate incoming Financial Manager and making sure they are a fit for the individual and their family
  • Making an application to the Court
  • Providing evidence before the Court in relation to:
    • The individual’s capacity to manager his or her financial affairs
    • Evidence from any family member about their opinion of the current situation. The Court wants to know the family is supportive of the application
    • Why there has been some difficulties and why the relationship with the Public Trust Office has deteriorated
    • Evidence of the suitability of the incoming Private Trustee Company
    • Financial reports in relation to the individual’s financial affairs and the nature of their protected estate

As the individual who is the subject of the application usually does not have legal capacity, any person “having a sufficient interest in the matter” may make the application to the Court. This would usually be a parent, husband or wife, or close family member who is concerned about the current situation.

Another function promoted by the Public Trustee Offices is to act as executor in the estates of people who make their Wills at the office of the Public Trustee.

An executor is the appointed representative of a deceased person who is responsible for obtaining Probate of the Will and administering the estate (i.e. calling in the assets and distributing to the beneficiaries). Although the Public Trustee Offices may offer to make a Will free of charge, these organisations have a significantly high set of fees and charges that they are entitled to be paid out of the estate after the person dies and the estate is administered. The fee structure of the Public Trustee Office is often complicated and difficult to understand. These fee structures usually include an ability to charge a fee based on a percentage of the value of the assets in the estate, and not the actual work undertaken by the executor in administering the estate.

In our experience, the Public Trustees entice people in with free or inexpensive Wills and charge exorbitant fees when the person dies, and their estate is administered.