Protected person: Principles governing a change of manager

Re TLH, a protected person [2017] NSWSC 737 saw an application by the mother of a young ‘protected’ child, for the manager of her child’s estate to be removed and replaced by another licensed trustee company. The first manager had only been appointed about one year beforehand and the estate under management was substantial, approaching $10 million.

Of interest are the remarks of the court at [10] – [13]:

The environment in which licensed trustee companies operate has been rendered more competitive by two particular developments. First, the liberalising effect of Holt v Protective Commissioner (1993) 31 NSWLR 227 in encouraging families to be more actively involved in the management of estates than was formerly the case. Secondly, as evidenced by Ability One Financial Management Pty Limited and Anor v JB by his tutor AB [2014] NSWSC 245, the entry into the field of private managers for reward who are not licensed trustee companies.

Beneficial though increased competition in this realm may be, care needs to be taken to ensure that commercialisation of the provision of protected estate services does not subordinate, but rather serves, the interests of persons under protection.

The time has passed, if it ever existed, when an institutional manager (public or private) could view its business as one, essentially, of funds management rather than, substantively, the business of a service provider. Families of persons under protected estate management are commonly anxious to preserve an estate (with maximum returns and minimum expenses), acutely conscious of the possibility that, at some indefinite future time, the estate might be exhausted in the midst of ongoing need. Families are also commonly sensitive to the possibility that they are taken for granted by institutional managers, especially if prompt attention is not given to their requests for assistance, and if personnel changes (or decision-making structures) within the institution deny them a means of establishing a personal relationship with an experienced manager familiar with their particular case.

The concerns of families here mentioned have been brought to the attention of the Court, not only in the current proceedings, but across a broad range of Protective List proceedings.

The court held concluded at [21] that the relationship between the plaintiff (as the mother, and carer, of the child/defendant) and the present manager of the protected estate of the defendant had broken down irretrievably; that a change of manager is for the benefit and in the interests of the defendant as a protected person; and that the proposed new licensed trustee company was a “suitable person” within the meaning of section 41(1)(b) of the NSW Trustee and Guardian Act 2009 (NSW), to be appointed as manager of the defendant’s estate.

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