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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Public Trustee and Trustee Companies
Legislation Amendment Bill 2006
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Public Trustee Act 1941
amended
3. The Act amended 3
4. Part I heading inserted 3
Part I -- Preliminary
5. Section 1A inserted 3
1A. Object 3
6. Section 2 amended 3
7. Section 3 amended 5
8. Part I heading replaced 5
Part IA -- The Public Trustee
9. Section 4 amended 5
10. Section 5 amended 5
11. Sections 6A and 6B inserted 5
6A. Use of other government staff, etc. 5
6B. Management and performance 6
12. Heading to Part II Division (1) replaced 7
Division 1 -- General
13. Heading to Part II Division (2) replaced 7
Division 2 -- Public Trustee as executor
or administrator
14. Section 12A inserted 8
12A. Public Trustee's powers on appointment
as agent of executor, administrator, etc. 8
102--3 page i
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Contents
15. Section 14 amended 9
16. Section 18 amended 9
17. Heading to Part II Division (3) replaced 9
Division 3 -- Public Trustee as trustee
18. Section 22A inserted 10
22A. Public Trustee's powers on appointment
as trustee's agent 10
19. Heading to Part II Division (4) replaced 10
Division 4 -- Estates of represented persons
20. Section 29 amended 10
21. Heading to Part II Division (5) replaced 11
Division 5 -- Powers and duties of Public Trustee as
to moneys subject to court and other orders
22. Heading to Part II Division (6) replaced 11
Division 6 -- Powers and duties of Public Trustee as
to uncared for property
23. Part II Division 7 inserted 12
Division 7 -- Other services
37B. Term used in this Division 12
37C. Provision of services 13
24. Section 38 replaced by sections 38, 38A and 38B 14
38. Term used in this Part 14
38A. Scale of fees 14
38B. Public Trustee's entitlement to fees and
expenses 14
25. Section 40 replaced by sections 39A to 40, and
transitional 17
39A. The Common Account 17
39B. Establishment of strategic common
accounts 19
39C. Power to invest moneys 19
39D. Power to invest, and restrictions on
investment of, Fund moneys 20
39E. How Fund moneys are to be invested,
distributed etc. 20
39F. Records as to Funds 21
40. Power to enter into portfolio management
contracts as to Fund investments 22
26. Section 40A amended 22
27. Section 44 amended 23
28. Section 44A inserted 23
44A. Reserve funds 23
29. Sections 47A and 47B inserted 24
page ii
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Contents
47A. Fees for preparation of wills and enduring
powers of attorney and providing legal
services 24
47B. Treasurer's approvals and guidelines 25
30. Section 49 amended 25
31. Section 53 repealed 26
32. First Schedule repealed 26
Part 3 -- Trustee Companies Act 1987
amended
33. The Act amended 27
34. Section 18A inserted 27
18A. Fees for preparation of wills and enduring
powers of attorney 27
Part 4 -- Unclaimed Money Act 1990
amended
35. The Act amended 28
36. Section 9 amended 28
page iii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Public Trustee and Trustee Companies
Legislation Amendment Bill 2006
A Bill for
An Act to amend --
• the Public Trustee Act 1941;
• the Trustee Companies Act 1987,
and to make consequential amendments to the Unclaimed Money
Act 1990, and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Public Trustee and Trustee Companies
Legislation Amendment Act 2006.
5 2. Commencement
(1) This Part comes into operation on the day after the day on
which this Act receives the Royal Assent.
(2) This Act, other that this Part, comes into operation on a day
fixed by proclamation.
page 2
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Public Trustee Act 1941 amended Part 2
s. 3
Part 2 -- Public Trustee Act 1941 amended
3. The Act amended
The amendments in this Part are to the Public Trustee
Act 1941*.
5 [* Reprint 5 as at 11 August 2006.]
4. Part I heading inserted
Before section 1 the following heading is inserted --
"
Part I -- Preliminary
10 ".
5. Section 1A inserted
After section 1 the following section is inserted --
"
1A. Object
15 The object of this Act is to provide community services
in respect of trusts, estates and related matters.
".
6. Section 2 amended
Section 2 is amended by inserting the following definitions in
20 the appropriate alphabetical positions --
"
"certificated practitioner" has the meaning given to
that term in section 3 of the Legal Practice
Act 2003.
page 3
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Part 2 Public Trustee Act 1941 amended
s. 6
"client" means --
(a) a beneficiary of the estate of a deceased
person which is administered by the
Public Trustee;
5 (b) the donor of a power of attorney, including
an enduring power of attorney, under which
the Public Trustee is the donee or
substitute donee;
(c) a person who appoints the Public Trustee to
10 be the executor of the person's will;
(d) a person on whose behalf moneys are
invested in a Fund;
(e) a beneficiary of a trust administered by the
Public Trustee;
15 (f) a person who has appointed the Public
Trustee to act as the person's agent; or
(g) a member of a class of persons prescribed by
the regulations.
"Common Account" means the account established
20 and continued under section 39A(1).
"current agreement" means the agreement entered
into under section 6B(1) that is currently in force.
"Fund" means the Common Account or a strategic
common account.
25 "reserve fund" means a fund established under
section 44A.
"strategic common account" means an account
established under section 39B(1).
"Treasurer's guidelines" means guidelines issued by
30 the Treasurer under section 47B(2).
".
page 4
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Public Trustee Act 1941 amended Part 2
s. 7
7. Section 3 amended
Section 3(2) is repealed.
8. Part I heading replaced
The Part heading before section 4 is deleted and the following
5 heading is inserted instead --
"
Part IA -- The Public Trustee
".
9. Section 4 amended
10 After section 4(2) the following subsection is inserted --
"
(3) The Public Trustee is an agent of the Crown in right of
the State and enjoys the status, immunities and
privileges of the Crown.
15 ".
10. Section 5 amended
Section 5(1) is amended by deleting "referred to in section 6".
11. Sections 6A and 6B inserted
After section 6 the following sections are inserted in Part IA --
20 "
6A. Use of other government staff, etc.
(1) The Public Trustee may by arrangement with the relevant
employer make use, either full-time or part-time, of the
services of any officer or employee --
25 (a) in the Public Service;
(b) in a State agency or instrumentality; or
page 5
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Part 2 Public Trustee Act 1941 amended
s. 11
(c) otherwise in the service of the Crown in right of
the State.
(2) The Public Trustee may by arrangement with --
(a) a department of the Public Service; or
5 (b) a State agency or instrumentality,
make use of any facilities of the department, agency or
instrumentality.
(3) An arrangement under subsection (1) or (2) shall be
made on such terms as are agreed to by the parties.
10 6B. Management and performance
(1) The Minister and the Public Trustee are to enter into a
written agreement for each 12 month period in relation
to matters prescribed by the regulations.
(2) A current agreement may provide for any or all of the
15 following --
(a) the determination of a scale of fees under
section 38A(1);
(b) the proportion of fees received by the Public
Trustee to be credited to the Consolidated
20 Account;
(c) the circumstances in which moneys may be
transferred to or from a reserve fund;
(d) the uses to which moneys in a reserve fund may
be put.
25 (3) The annual report of the Public Trustee submitted
under the Financial Management Act 2006 shall
include --
(a) a summary of the current agreement; and
(b) a report on the Public Trustee's performance in
30 relation to matters required by the current
page 6
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Public Trustee Act 1941 amended Part 2
s. 12
agreement to be reported on in the annual
report.
(4) The first current agreement shall be effective on
and from the day on which section 11 of the Public
5 Trustee and Trustee Companies Legislation
Amendment Act 2006 comes into operation.
(5) If a current agreement (other than the first agreement)
has not been made in respect of a 12 month period then
on the commencement of that period the provisions of
10 the current agreement for the previous 12 month period
apply, to the extent that the provisions are relevant,
until a current agreement is made for the first
mentioned period.
(6) A current agreement is not legally enforceable.
15 ".
12. Heading to Part II Division (1) replaced
The heading to Part II Division (1) is deleted and the following
heading is inserted instead --
"
20 Division 1 -- General
".
13. Heading to Part II Division (2) replaced
The heading to Part II Division (2) is deleted and the following
heading is inserted instead --
25 "
Division 2 -- Public Trustee as executor
or administrator
".
page 7
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Part 2 Public Trustee Act 1941 amended
s. 14
14. Section 12A inserted
After section 12 the following section is inserted --
"
12A. Public Trustee's powers on appointment as agent of
5 executor, administrator, etc.
In addition to the Public Trustee's powers under
section 12, if --
(a) a person who is an executor or administrator
appoints the Public Trustee as the person's
10 agent to act as executor or administrator in the
place of the person;
(b) a person who may be entitled to apply for a
grant of probate appoints the Public Trustee as
the person's agent to apply for a grant of
15 probate;
(c) a person who may be entitled to obtain
administration (with the will of a testator
annexed) of the testator's estate appoints the
Public Trustee as the person's agent to apply
20 for an order to administer the estate; or
(d) a person who is referred to in section 25 of the
Administration Act 1903 as a person who may
be granted administration of an estate of a
person dying intestate appoints the Public
25 Trustee as the person's agent to apply for an
order to administer the estate,
the Public Trustee, if so appointed by power of
attorney or other instrument of appointment, may act
within the scope of the authority conferred on the
30 Public Trustee as effectually as the person could have
acted and may exercise all discretionary and other
powers delegated by the principal as fully as the
principal could have exercised them.
".
page 8
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Public Trustee Act 1941 amended Part 2
s. 15
15. Section 14 amended
(1) Section 14(1) is amended by deleting "$10 000" and inserting
instead --
" the prescribed amount ".
5 (2) Section 14(4) is amended by deleting "sum of $10 000," and
inserting instead --
" prescribed amount, ".
(3) After section 14(5) the following subsection is inserted --
"
10 (6) In this section --
"prescribed amount" means the amount prescribed
for the purposes of section 10 of the Trustee
Companies Act 1987 for the relevant time.
".
15 16. Section 18 amended
Section 18 is amended by deleting "$1 000, he" and inserting
instead --
" $5 000, the Public Trustee ".
17. Heading to Part II Division (3) replaced
20 The heading to Part II Division (3) is deleted and the following
heading is inserted instead --
"
Division 3 -- Public Trustee as trustee
".
page 9
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Part 2 Public Trustee Act 1941 amended
s. 18
18. Section 22A inserted
After section 22 the following section is inserted --
"
22A. Public Trustee's powers on appointment as
5 trustee's agent
If a person who is a trustee appoints the Public Trustee
as the person's agent to act as trustee in the place of the
person, the Public Trustee, if so appointed by power of
attorney or other instrument of appointment, may act
10 within the scope of the authority conferred on the
Public Trustee as effectually as the person could have
acted and may exercise all discretionary and other
powers delegated by the principal as fully as the
principal could have exercised them.
15 ".
19. Heading to Part II Division (4) replaced
The heading to Part II Division (4) is deleted and the following
heading is inserted instead --
"
20 Division 4 -- Estates of represented persons
".
20. Section 29 amended
Section 29(4) is repealed and the following subsections are
inserted instead --
25 "
(4) Where at the death of a represented person money is
standing to his credit, the Public Trustee may, at his
discretion, pay that money or pay from that money any
amount for or towards the funeral expenses, the debts
30 of the represented person and expenses and fees
incurred in performing functions vested in the Public
page 10
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Public Trustee Act 1941 amended Part 2
s. 21
Trustee under an administration order as defined in
section 3(1) of the Guardianship and Administration
Act 1990 relating to the represented person.
(5) Subject to subsection (4), where in relation to the estate
5 of a represented person, letters of administration have
not been granted or probate has not issued and legal
proof is not given of the right or title of the person
claiming, the Public Trustee may, at his discretion, pay
the money standing to credit of a represented person, or
10 the balance of that money, and hand over property
forming the whole or part of the estate, to any person
claiming as entitled in the distribution of the estate or
as a beneficiary under the will of the represented
person so long as the money paid or the value of the
15 property handed over does not exceed the prescribed
amount as defined in section 14(6).
".
21. Heading to Part II Division (5) replaced
The heading to Part II Division (5) is deleted and the following
20 heading is inserted instead --
"
Division 5 -- Powers and duties of Public Trustee as to
moneys subject to court and other orders
".
25 22. Heading to Part II Division (6) replaced
The heading to Part II Division (6) is deleted and the following
heading is inserted instead --
"
Division 6 -- Powers and duties of Public Trustee as to
30 uncared for property
".
page 11
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Part 2 Public Trustee Act 1941 amended
s. 23
23. Part II Division 7 inserted
After section 37A the following Division is inserted in Part II --
"
Division 7 -- Other services
5 37B. Term used in this Division
In this Division --
"investment management services" includes any of
the following --
(a) assisting clients to ascertain their investment
10 objectives, financial situations, risk profiles
and particular investment needs;
(b) setting investment policies and objectives for
clients;
(c) holding money for investment on behalf of
15 clients;
(d) engaging and retaining suitably qualified
financial planners or investment managers
for clients;
(e) subscribing to, buying or selling securities
20 and other investments, or accepting new
issue entitlements, on behalf of clients;
(f) collecting interest, dividends and other
income on behalf of clients;
(g) reviewing a client's investment portfolio
25 from time to time;
(h) providing accounting information to clients
on a regular basis in relation to their
investments.
page 12
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Public Trustee Act 1941 amended Part 2
s. 23
37C. Provision of services
(1) The Public Trustee may do any of the following --
(a) assist an executor or administrator of a
deceased's estate in exercising or performing
5 any power or duty of the executor or
administrator in relation to the administration
of the estate;
(b) provide estate planning services to a client or a
person who is contemplating appointing the
10 Public Trustee to be the executor of the
person's will;
(c) provide investment management services in
relation to investments, whether or not in a
Fund,
15 and do such things as are necessary for the provision of
that assistance or service.
(2) The Public Trustee is entitled to charge and receive
fees and remuneration and recover disbursements for
the provision of the assistance or services referred to in
20 subsection (1).
(3) The Public Trustee may continue to provide the
assistance or services referred to in subsection (1) to a
person who was a client even though the person is no
longer a client.
25 (4) Nothing in this Division shall be read as limiting any
power that the Public Trustee otherwise has, whether
under this Act or any other written law, a court order or
an authorisation in an instrument, to invest property
other than by way of investment in a Fund.
30 ".
page 13
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Part 2 Public Trustee Act 1941 amended
s. 24
24. Section 38 replaced by sections 38, 38A and 38B
Section 38 is repealed and the following sections are inserted
instead --
"
5 38. Term used in this Part
In this Part --
"fees" includes commissions and other charges.
38A. Scale of fees
(1) The Public Trustee shall from time to time, in
10 accordance with the current agreement, determine a
scale of fees for a function performed, or a service
provided, by the Public Trustee under this Act or any
other written law.
(2) A scale of fees has no effect unless it is published in
15 the Gazette.
(3) The Public Trustee shall ensure that the first scale of
fees is effective on and from the day on which
section 24 of the Public Trustee and Trustee
Companies Legislation Amendment Act 2006 comes
20 into operation.
(4) The Public Trustee may fix and set out in the scale of
fees different rates of fees that may be charged as
remuneration in respect of different classes of estate
and the time and manner of charging such fees.
25 (5) The Interpretation Act 1984 section 42 applies to and
in relation to a scale of fees as if the scale of fees were
regulations made under this Act.
38B. Public Trustee's entitlement to fees and expenses
(1) The Public Trustee is entitled to charge as
30 remuneration for the functions and services referred to
page 14
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Public Trustee Act 1941 amended Part 2
s. 24
in section 38A(1) fees not exceeding those fixed from
time to time by the Public Trustee and set out in the
latest published scale of fees before the Public Trustee
commences to perform the function or provide the
5 service.
(2) Nothing in this section prevents --
(a) the payment of any fees that a testator in his
will has directed to be paid; or
(b) the payment of any fees that have been agreed
10 on between the Public Trustee and a person for
whom the Public Trustee performs a function or
provides a service under this Act or any other
written law,
either in addition to or instead of the fees provided for
15 by this section.
(3) Nothing in this section prevents the Public Trustee
from being reimbursed for all expenses properly
incurred by the Public Trustee in the administration or
management of an estate.
20 (4) Any fees charged by the Public Trustee in accordance
with this section are payable out of the capital or
income of the estate.
(5) Any fees which the Public Trustee is entitled to receive
in respect of an estate may be paid or deducted out of
25 the estate, in accordance with the time and manner
provided for in the latest scale of fees of the Public
Trustee published before the commencement of the
administration or management of the estate, at any time
after the commencement of the administration or
30 management of the estate.
(6) In addition to the fees chargeable under this section,
the Public Trustee may, in respect of any estate, charge
and receive a reasonable fee or remuneration for work
page 15
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Part 2 Public Trustee Act 1941 amended
s. 24
involved in the preparation and lodging of returns for
the purpose of or in connection with assessments of
any duties or taxes (other than probate, death,
succession or estate duties).
5 (7) The published scale of fees of the Public Trustee must
include a statement to the effect that the Public Trustee
may in addition to fees chargeable under this section
charge a fee for work involved in the preparation and
lodging of returns for the purpose of or in connection
10 with assessments of any duties or taxes (other than
probate, death, succession or estate duties).
(8) There shall not be any fee payable to the Public Trustee
in respect of income earned by an estate by way of
interest payable to the estate under section 39A(7).
15 (9) Where in a particular case the Public Trustee is
satisfied that there is proper cause, the Public Trustee
may waive, either wholly or in part, any fees
determined under this Act.
(10) The incidence of fees under this section, as between
20 corpus and income, shall be determined by the Public
Trustee.
(11) If immediately before the day on which section 24 of
the Public Trustee and Trustee Companies Legislation
Amendment Act 2006 comes into operation the Public
25 Trustee is responsible for performing a function or
providing a service of a type referred to in
section 38A(1), on or after that day the Public Trustee
is entitled to charge as remuneration for performing the
function or providing the service fees set out in the first
30 scale of fees referred to in section 38A(3).
".
page 16
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Public Trustee Act 1941 amended Part 2
s. 25
25. Section 40 replaced by sections 39A to 40, and transitional
(1) Section 40 is repealed and the following sections are inserted
instead --
"
5 39A. The Common Account
(1) The Common Account is established and --
(a) is a continuation of the Common Account
referred to in section 40(1) of this Act
immediately before the day on which section 25
10 of the Public Trustee and Trustee Companies
Legislation Amendment Act 2006 comes into
operation; and
(b) is, on and from that day to be treated as a Fund
as defined in section 2.
15 (2) The Common Account is an agency special purpose
account under the Financial Management Act 2006
section 16.
(3) In addition to any other investments that the Public
Trustee is authorised to make from the Common
20 Account, the Public Trustee may, with the prior
approval of the Minister, invest a portion of the
moneys standing to the credit of the Common Account
in acquiring vacant land and erecting a building on the
land or in acquiring land for the purpose of --
25 (a) providing office accommodation for the Public
Trustee and persons appointed under this Act;
and
(b) leasing to other persons approved by the
Minister portions of the building,
30 on such terms and conditions and for such periods as
the Minister approves.
page 17
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Part 2 Public Trustee Act 1941 amended
s. 25
(4) The Public Trustee may deduct, by way of fees in
respect of the management of the Common Account,
up to 6.6% of the total interest or income earned by
investment of moneys forming part of the Common
5 Account.
(5) The Public Trustee shall, in accordance with the
current agreement, fix from time to time and publish in
the Gazette the rate or rates of interest payable to the
respective estates the moneys of which form part of the
10 Common Account.
(6) The Public Trustee may fix different rates of interest
according to --
(a) the source and nature of the different amounts
invested from the Common Account;
15 (b) the period for which those amounts are so
invested; and
(c) such other matters as the Public Trustee
considers relevant having regard to the
circumstances.
20 (7) The interest payable to the respective estates the
moneys of which form part of the Common Account, at
the appropriate rate fixed under subsection (5), shall be
credited to those estates half-yearly on the first day of
the months of April and October in each year.
25 (8) Any balance of the interest received from investments
of moneys forming part of the Common Account may
be credited to a reserve fund after deduction of --
(a) fees in accordance with subsection (4); and
(b) payments under subsection (7).
30 (9) Moneys expressly directed to be invested otherwise
than in the Common Account shall not form part of the
Common Account and the Public Trustee may invest
those moneys in accordance with such direction.
page 18
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Public Trustee Act 1941 amended Part 2
s. 25
(10) Any loss or deficiency in respect of any investment
made under subsection (9), or of the money received
from or realised by such an investment, shall be borne
by the trust or estate to which such moneys belong, or,
5 if received or realised, would belong.
39B. Establishment of strategic common accounts
(1) The Public Trustee may establish and keep separately
one or more accounts to be called a "strategic common
account".
10 (2) Each strategic common account is to have a
distinguishing name or number.
(3) Each strategic common account is an agency special
purpose account under the Financial Management
Act 2006 section 16.
15 39C. Power to invest moneys
(1) The Public Trustee may invest moneys held by the
Public Trustee in the course of administering, holding,
managing or controlling an estate in any capacity and
properly available for investment --
20 (a) in a Fund; or
(b) as trust funds may be invested under Part III of
the Trustees Act 1962.
(2) Nothing in subsection (1) authorises the investment of
moneys if investment of the moneys is contrary to the
25 terms or conditions of the instrument of appointment,
the instrument creating the trust or any other
instrument or order affecting the holding of the moneys
by the Public Trustee.
page 19
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Part 2 Public Trustee Act 1941 amended
s. 25
39D. Power to invest, and restrictions on investment of,
Fund moneys
The Public Trustee may invest the moneys standing to
the credit of a Fund but only --
5 (a) as trust funds may be invested under Part III of
the Trustees Act 1962; and
(b) in accordance with the Treasurer's guidelines.
39E. How Fund moneys are to be invested,
distributed etc.
10 (1) Investments made from moneys standing to the credit
of a Fund shall not be made in the name or on account
of, and shall not belong to, any particular estate but are
to be held by the Public Trustee proportionately having
regard to the proportion which the amount invested in
15 relation to each estate bears to the total amount
invested in the Fund in relation to all participating
estates.
(2) At least once every 3 months, the Public Trustee shall
distribute to the separate account of each estate
20 participating in a strategic common account, in
accordance with its proportional interests determined
under subsection (1), the amount of any increase or
decrease in the value of the investments held by the
fund as determined either by independent valuation or
25 estimated by the Public Trustee.
(3) The Public Trustee shall deal with income earned by
the Public Trustee in respect of the investment of a
strategic common account in the same manner as an
investment in a Fund is dealt with and the Public
30 Trustee shall ensure that appropriate records are made
in the register of investments and the separate account
maintained under section 39F(1) for each participating
estate.
page 20
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Public Trustee Act 1941 amended Part 2
s. 25
(4) The entitlement of each participating estate to income
earned by the Public Trustee in respect of the
investment of a Fund shall be calculated on a daily
basis from the date of participation to the date of
5 withdrawal.
(5) The Public Trustee may at any time withdraw from a
Fund any amount standing to the credit of an estate in
that Fund and shall debit the separate account
maintained by the Public Trustee under section 39F
10 accordingly.
(6) The amount standing to the credit of an estate in a Fund
shall be determined for the purposes of withdrawal
having regard to distributions made under
subsection (2) and to that estate's entitlement to
15 income calculated on a daily basis.
39F. Records as to Funds
(1) The Public Trustee shall keep a separate account for
each estate participating in a Fund, containing a record
of the amount and date of each investment made in the
20 Fund in relation to the estate and the current value of
the interest of the estate calculated in accordance with
section 39E(2).
(2) The Public Trustee shall maintain a register of
investments in respect of each Fund and record in that
25 register --
(a) a description sufficient to identify every
investment made by the Fund and details of
moneys held to the credit of the Fund; and
(b) the value, determined either by independent
30 valuation or estimated by the Public Trustee at
least once in every 3 months, of every
investment held by the Fund.
page 21
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Part 2 Public Trustee Act 1941 amended
s. 26
40. Power to enter into portfolio management contracts
as to Fund investments
(1) The Public Trustee may enter into any contract or
arrangement with any person approved by the
5 Treasurer for the management by that person of a class
or classes of investment forming part of a Fund.
(2) The terms and duration of a proposed contract or
arrangement under subsection (1) shall be approved by
the Treasurer before the contract or arrangement is
10 entered into.
(3) Subject to any relevant Treasurer's guidelines, the
Public Trustee may delegate to a person referred to in
subsection (1) all or any of the Public Trustee's
functions under section 39D with respect to all or part
15 of a Fund.
".
(2) The last rates of interest fixed and published in the Gazette
before the day on which section 25 of the Public Trustee and
Trustee Companies Legislation Amendment Act 2006 comes
20 into operation are to be taken on and after that day to be the
rates fixed and published in the Gazette under section 39A(5) of
the Public Trustee Act 1941 until rates are fixed under
section 39A(5).
26. Section 40A amended
25 (1) Section 40A(1) is amended as follows:
(a) in the definition of "purchased land" by inserting after
"section 40(2a)" --
"
as in force immediately before the commencement
30 of section 25 of the Public Trustee and Trustee
Companies Legislation Amendment Act 2006
";
page 22
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Public Trustee Act 1941 amended Part 2
s. 27
(b) in the definition of "unused portion" by deleting ", on
the day that the Public Trustee Amendment Act 1982
comes into operation, not used for the purposes referred
to in section 40(2a)." and inserting instead --
5 "
not used for the purposes referred to in
section 39A(3).
".
(2) Section 40A(2) is amended by deleting "section 40(2a)" and
10 inserting instead --
" section 39A(3) ".
27. Section 44 amended
After section 44(4) the following subsection is inserted --
"
15 (4a) The interest payable under subsection (4) may be
debited against an account of the estate in a Fund on
the first day of the months of April and October in each
year.
".
20 28. Section 44A inserted
After section 44 the following section is inserted --
"
44A. Reserve funds
(1) The Public Trustee may establish one or more reserve
25 funds to which may be credited amounts under this Act
or moneys approved by the Minister in the current
agreement.
(2) Each reserve fund is to have a distinguishing name.
page 23
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Part 2 Public Trustee Act 1941 amended
s. 29
(3) The Public Trustee may from time to time apply any of
the moneys in a reserve fund in accordance with the
current agreement.
(4) The Public Trustee shall invest moneys in a reserve
5 fund in the Common Account.
".
29. Sections 47A and 47B inserted
After section 47 the following sections are inserted --
"
10 47A. Fees for preparation of wills and enduring powers
of attorney and providing legal services
(1) Despite anything to the contrary in the Legal Practice
Act 2003, the Public Trustee may charge a fee and
recover disbursements for --
15 (a) the preparation of a will or an enduring power
of attorney;
(b) the provision of a legal service to a client; or
(c) the provision of a legal service in relation to
estates and trusts administered by the Public
20 Trustee.
(2) Subsection (1)(a) applies only if the will or enduring
power of attorney is prepared under the direction and
control of a certificated practitioner.
(3) Subsection (1)(b) and (c) apply only if the legal service
25 is provided under the direction and control of a
certificated practitioner.
page 24
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Public Trustee Act 1941 amended Part 2
s. 30
47B. Treasurer's approvals and guidelines
(1) An approval given by the Treasurer under section 40(1)
or (2) shall be in writing but may otherwise be given
when and how the Treasurer determines.
5 (2) The Treasurer may issue written guidelines to be
followed by the Public Trustee for the purposes of
section 39D(b) or 40(3) and may, in writing, amend or
revoke those guidelines.
(3) Treasurer's guidelines are not subsidiary legislation for
10 the purposes of the Interpretation Act 1984.
(4) If the Treasurer issues, amends or revokes a
Treasurer's guideline, the text of the guideline,
amendment or revocation shall be included in the
annual report submitted by the accountable authority of
15 the Public Trustee under the Financial Management
Act 2006 section 61.
".
30. Section 49 amended
(1) Section 49(1) is amended as follows:
20 (a) in paragraph (ea) by deleting "subject to
subsections (2a) and (2b),";
(b) after paragraph (n) by inserting the following
paragraph --
"
25 (na) pay such sum or sums for the education of the
beneficiary of a trust of which the Public
Trustee is trustee as to the Public Trustee seems
expedient and reasonable;
".
page 25
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Part 2 Public Trustee Act 1941 amended
s. 31
(2) Section 49(2) is amended by inserting before ", the Public
Trustee" --
"
or performing a function or exercising an authority
5 referred to in Schedule 5 clause 1(1) or (2) or 2(1)
or (2) of the Guardianship and Administration
Act 1990
".
(3) Section 49(2a), (2b) and (2c) are repealed.
10 31. Section 53 repealed
Section 53 is repealed.
32. First Schedule repealed
The First Schedule is repealed.
page 26
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Trustee Companies Act 1987 amended Part 3
s. 33
Part 3 -- Trustee Companies Act 1987 amended
33. The Act amended
The amendment in this Part is to the Trustee Companies
Act 1987*.
5 [* Reprint 2 as at 6 February 2004 .
For subsequent amendments see Western Australian
Legislation Information Tables for 2005, Table 1, and
Gazette 21 March 2006 p. 1082-3.]
34. Section 18A inserted
10 After section 18 the following section is inserted in Part III --
"
18A. Fees for preparation of wills and enduring powers
of attorney
(1) Despite anything to the contrary in the Legal Practice
15 Act 2003, a trustee company may charge a fee and
recover disbursements for the preparation of a will or
an enduring power of attorney.
(2) Subsection (1) applies only if the will or enduring
power of attorney is prepared under the direction and
20 control of a certificated practitioner as defined in
section 3 of the Legal Practice Act 2003.
".
page 27
Public Trustee and Trustee Companies Legislation Amendment Bill 2006
Part 4 Unclaimed Money Act 1990 amended
s. 35
Part 4 -- Unclaimed Money Act 1990 amended
35. The Act amended
The amendments in this Part are to the Unclaimed Money
Act 1990*.
5 [* Reprinted as at 5 November 1999.
For subsequent amendments see Western Australian
Legislation Information Tables for 2005, Table 1.]
36. Section 9 amended
Section 9(1)(f) is amended by deleting "the Common Fund
10 established under section 40 of the Public Trustee Act 1941"
and inserting instead --
"
the Common Account as defined in section 2 of
the Public Trustee Act 1941
15 ".
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