Many families first hear of State Trustees in Victoria or NSW Trustee and Guardian when something has already gone wrong. A parent has dementia and the bank will not deal with the children. A relative has died without a Will and no one in the family can, or wants to, apply to administer the estate.
For families with relatives overseas, the risk is higher. An elderly parent may live in Melbourne or Sydney while the children live in Singapore, Hong Kong or Shanghai, and no one has signed an Australian enduring power of attorney.
What State Trustees and NSW Trustee and Guardian do
State Trustees (Victoria)
State Trustees Limited is a Victorian Government-backed company. Its services include preparing Wills and powers of attorney, acting as executor of deceased estates, acting as a financial attorney where a person has appointed it, and acting as financial administrator when appointed by the Victorian Civil and Administrative Tribunal (VCAT) for a person who cannot manage their own financial affairs.
NSW Trustee and Guardian
NSW Trustee and Guardian was formed in 2009 by bringing together the former Public Trustee and the Office of the Protective Commissioner, and it supports the NSW Public Guardian. Its functions include preparing Wills and estate planning documents, acting as executor and administering deceased estates and trusts, and managing the financial and legal affairs of people under financial management orders. It also oversees private financial managers appointed by a tribunal or court.
When a public trustee becomes involved
Death without a Will, or without an executor
Where someone dies without a valid Will, or the named executor has died, cannot act or does not want to, someone must apply to the Supreme Court for letters of administration. Usually that is a close family member. If no family member is available or willing, a public trustee may administer the estate. In Victoria, where a person dies without a valid Will and no family is available to assist, State Trustees may be required to act. In NSW, the Supreme Court may grant administration to the person with the greatest entitlement or to NSW Trustee and Guardian, and families can refer an intestate estate to it.
Children living abroad may be unsure whether they can apply or need to travel. Who should apply depends on the circumstances and needs advice.
Financial administration and management orders
Where an adult loses capacity to make financial decisions and has no working enduring power of attorney, someone may apply to a tribunal for an order.
In Victoria, VCAT may appoint an administrator for an adult with a disability who cannot make financial or legal decisions, if the person lives in Victoria or has property there. VCAT generally makes an order only where it is needed and no less restrictive option is available. It can appoint a relative, friend or professional, and may appoint State Trustees or a private trustee company if no suitable person is available. Administrators must act in line with the person’s will and preferences as far as practical, and account to VCAT.
In NSW, the NCAT Guardianship Division and the Supreme Court can make financial management orders. A family member, friend or trustee company can be appointed as private financial manager, and NSW Trustee and Guardian is appointed when no family member or friend is willing or able. Private managers operate under the oversight of NSW Trustee and Guardian.
Appointment as executor in a Will
Some people choose to name State Trustees or NSW Trustee and Guardian as executor in their Will, for example where they prefer an independent executor or have no family nearby. That can be a legitimate choice if made knowingly.
Fees in general terms
Public trustees charge fees for administering estates and managing the affairs of people under orders. State Trustees’ fees are generally commission-based, set out in a published scale, with hourly rates in some circumstances. NSW Trustee and Guardian also charges fees under its published arrangements. Fees are usually paid from the person’s assets or the estate. Families can ask for current fee information and compare other options.
Overseas families: an elderly parent in Australia without a power of attorney
Consider a widowed mother living in Melbourne whose children all live in Asia. She has a Will but has never signed a Victorian enduring power of attorney. When she develops dementia, her bank accounts and the family home may need to be managed, but no one has legal authority. A power of attorney signed in another country may not be recognised. An application to VCAT may follow, and the family’s ability to manage affairs from overseas may be a factor in who is appointed. The right approach in a situation like this depends on facts that need advice.
How families keep control
Enduring powers of attorney
An enduring power of attorney allows a person, while they have capacity, to choose who will manage their financial affairs if they later lose capacity. Where a valid and suitable enduring power of attorney is in place, a tribunal order may not be needed. Each state has its own form and witnessing requirements, and a document made overseas may not be accepted for Australian assets.
Alternative and substitute appointments
Victorian law allows alternative attorneys to be named, and NSW law allows substitute attorneys, subject to the requirements of each Act. A back-up helps if the first attorney cannot act.
Executors and substitute executors
A Will that names an executor, plus a substitute executor in case the first cannot act, reduces the chance that no one is available after death.
Personal and medical decisions
Financial authority is only part of the picture. Victoria and NSW each have arrangements for appointing someone to make medical or personal decisions, and VCAT and NCAT can make guardianship orders where no suitable appointment exists. We cover VCAT guardianship and administration orders in more detail in a separate article.
Questions to discuss with your lawyer
- Do my parents have valid Australian enduring powers of attorney, and do they name back-ups?
- Would a power of attorney signed overseas be accepted for Australian assets?
- Who is named as executor, and can they realistically act from where they live?
- If a tribunal application is already under way, can a family member be considered?
Frequently asked questions
What is a State Trustees administration order?
It is usually a VCAT administration order appointing State Trustees as administrator to manage a person’s finances. VCAT generally appoints State Trustees where no suitable family member, friend or professional is available.
Can family replace NSW Trustee and Guardian as financial manager?
It may be possible to apply to NCAT or the court to review an order, depending on the circumstances. Whether that is likely to succeed needs advice.
Does an enduring power of attorney stop a VCAT order?
A valid and working enduring power of attorney can mean an order is not needed, but VCAT can still act in some situations, for example where there are concerns about how an attorney is acting.
Every family’s situation is different, and the answer often turns on details. Book a consultation so we can review your documents and circumstances before you act.
How Chua Tan Associates can help
Chua Tan Associates prepares enduring powers of attorney, Wills and related documents for families in Australia and overseas, and advises families where a parent has lost capacity or a relative has died without a Will. We assist with applications for letters of administration and with VCAT and NCAT matters, and our notary public helps with documents for family members overseas. Justin Chua trained in accounting (Bachelor of Commerce, accounting major), is an affiliate member of STEP (the Society of Trust and Estate Practitioners), and advises on the legal and tax structure of family wealth together. He is a Nationally Accredited Mediator and an Accredited Family Business Advisor. We work with lawyers in Asia and advise in English, Mandarin and Cantonese.
Important: This article is general information only and must not be relied on. It is not legal, tax or financial advice, does not take your circumstances into account, and may not reflect changes in the law after publication. Laws of other countries may also apply. Do not act or refrain from acting on the basis of this article. Reading it or contacting us does not create a lawyer–client relationship. Please book a consultation for advice on your situation.
Related reading
Chua Tan Associates acts for families, executors, trustees and their professional advisers in estate planning, estate administration and estate disputes in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal or tax advice.
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