Disputes with NSW Trustee & Guardian
Sydney Estate Litigation Lawyers
Are you involved in a dispute with NSW Trustee & Guardian?
Our Sydney Estate Litigation Lawyers aim to help those most vulnerable in our community who have suffered financial loss and emotional turmoil after putting their trust in the Public Trustee.
Our Estate Litigation Lawyers regularly receive enquiries from people who have been unhappy with the service provided by the Public Trustee and want to remove the Public Trustee from their appointment as administrator or executor of an estate.
NSW Trustee & Guardian (NSWTAG) have had allegations made against them for many years in regard to their alleged gross misconduct, unfair commissions and fee gouging, financial mismanagement, and lack of transparency of the fees they charge for their services.
It is imperative that the community understands that there are alternative options available for services such as drafting your Will, financial management, executor services for deceased estates, managing trusts, and appointing guardians.
If you are involved in a dispute with the Public Trustee, it is important to seek professional advice at the earliest opportunity. You may be able to have the Public Trustee removed, and seek compensation for mismanagement of your, or a loved one’s, affairs.
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NSW Trustee and Guardian is a state government agency that was established to support the people of New South Wales and help them plan for their future legal, financial and health decisions.
NSW Trustee and Guardian provide a range of services including:
- Making a Will
- Executor services
- Financial management
- Guardianship (If a person’s decision-making ability is impaired due to age, mental illness, disability or injury, they may require a guardian to be appointed who can make lifestyle, healthcare and medical decisions on their behalf)
Within the New South Wales community, there is a general assumption that the NSW Public Trustee & Guardian are the most suitable option for Will and trustee services. However, there are many other alternative options available, including appointing a private trustee or professional to administer deceased estates or manage the financial affairs of the state’s most vulnerable people.
In most cases, yes. If you would like to remove NSW Trustee & Guardian from roles such as administrator for someone who may not have capacity to manage their own financial affairs, you can apply to a tribunal or court. This usually involves applying to have an alternative private trustee, or individual, replace the Public Trustee (if this is deemed appropriate).
To have NSW Trustee and Guardian removed, you must make an application to a tribunal or court for a substitute decision-maker. If the incoming administrator (decision-maker) seeks payment (for example if you were to appoint a private trustee company) the application must be made to the court to seek the removal of NSW Trustee & Guardian from their role, and the appointment of the new incoming private trustee.
The reason a court application is required is due to the fact there is payment involved, therefore the court must approve the decision and ensure it is suitable.
The process to apply to remove NSW Trustee & Guardian is as follows:
- Find an appropriate replacement administrator (decision-maker) and ensure they are the best fit for the individual and their family.
- Make the court application.
- Provide evidence.
The evidence you will need to provide before the court includes:
– The individual’s capacity, or lack of capacity, to manage their own financial affairs
– The opinion of the family in relation to the current situation with the Public Trustee. The court will want to determine that the family supports the application.
– Details about the events that took place that caused the relationship to break down with the Public Trustee.
– Proof of the suitability of the replacement private trustee.
– Financial reports to show the individual’s financial affairs and the nature of their protected estate.
Usually a parent, spouse, or close family member of the individual who is subject to the application, will make the application to have the Public Trustee removed and substituted by an alternative decision-maker.
This is because in most instances, the individual subject to the application does not have legal capacity to make this type of decision for themselves.
NSW Public Trustee & Guardian often promote their Executor services, particularly to the people who make their Will at the office of the Public Trustee.
An Executor is appointed to represent someone after they die. The Executor is responsible for obtaining probate and the administration of the deceased’s estate. This involves:
- calling in the assets;
- tending to the payment of the deceased’s debts;
- distributing the assets to the beneficiaries;
- defending any litigation or claims made against the estate; and
- any other matter that requires a representative’s input on behalf of the estate.
If you choose to appoint the Public Trustee as your Executor in your Will, they will often charge significantly high fees that they are then entitled to take out of the estate after you have passed away and your estate has been administered.
The Public Trustee’s fee structure is complicated and can be confusing 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 are not charged based on the actual work undertaken by the Executor in completing their duties.