This section outlines concrete compliance steps for executors, administrators, private trustees, legal advisers, institutions that may engage the Public Trustee, and the Public Trustee itself, grounded in the Act’s provisions.
For persons engaging or appointing the Public Trustee
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Use clear instruments of appointment. Where a private executor, administrator or trustee wishes the Public Trustee to act as agent, appoint the Public Trustee by signed power of attorney or instrument so the Public Trustee can exercise delegated powers fully (ss 12A, 22A). Ensure the instrument explicitly defines the scope of authority and any conditions, since the Public Trustee will act “within the scope” of the authority conferred.
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Check for express prohibitions. The Public Trustee may be appointed unless expressly prohibited by the will or trust instrument (ss 8, 20). When drafting wills or trust instruments, include clear clauses if a testator or settlor does or does not wish the Public Trustee to be appointed.
For persons whose estates will be administered by the Public Trustee
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Expect fees to be charged from capital or income. The Public Trustee is entitled to charge fees for services in accordance with a published scale and to deduct or pay them out of the estate at times set by the scale (ss 38A, 38B(4)-(5)). Review the Gazette for the current published scale before engagement (s 38A(2)).
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Review fee and payment arrangements. If fee negotiation is needed, negotiate prior to the Public Trustee commencing work, and document any agreed alternative fees in writing (s 38B(2)(b)). Be aware that the current agreement can determine the scale of fees in accordance with the Public Trustee (s 6B(2)(a)), but is not legally enforceable (s 6B(6)).
For institutions contracting portfolio management or providing investment mandates
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Obtain Treasurer approval where required. The Public Trustee may enter into portfolio management contracts with a person approved by the Treasurer and subject to Treasurer approval of terms and duration (s 40(1)-(2)). If your organisation seeks to be contracted by the Public Trustee, obtain and document any Treasurer approvals that are required.
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Ensure compliance with Treasurer’s guidelines and trustees’ investment rules. Fund investments are limited to those authorised under the Trustees Act Part III and Treasurer’s guidelines (s 39D). Maintain capacity for independent valuation at least quarterly as the Public Trustee must provide quarterly valuations for strategic common accounts (s 39E(2); s 39F(2)).
For legal practitioners advising clients
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Confirm legal practitioner oversight for legal services. The Public Trustee may charge for legal services only if provided under the direction and control of a legal practitioner (s 47A(1)-(3)). When advising clients who plan to use the Public Trustee for will drafting or legal tasks, confirm who will be the supervising legal practitioner and how the fee will be captured and charged.
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Use Public Trustee certificates and judicial notice. Certificates under the Public Trustee’s hand and seal are prima facie evidence of appointment and related facts (s 59). Courts must take judicial notice of the Public Trustee’s appointment and delegations (s 5A), which simplifies evidentiary steps in litigation and title registration.
For the Public Trustee’s own compliance and internal controls
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Maintain and publish fee scale and accounts. The Public Trustee must determine a scale of fees in accordance with the current agreement and publish it in the Gazette (s 38A(1)-(2)). Keep accurate accounts for all estates and produce index and registers as required (s 47(1); ss 39F(1)-(2)). Make sure fees for legal work and wills are only charged when performed under a legal practitioner’s direction as per s 47A.
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Follow Fund valuation and record-keeping rules. The Public Trustee must keep separate accounts for each participating estate, maintain a register of investments with quarterly valuations, and distribute increases or decreases for strategic common accounts at least every three months (ss 39E(1)-(3), 39F(1)-(2)). Implement systems to calculate daily entitlements to income (s 39E(4)) and to reconcile withdrawals against distributed amounts (s 39E(5)-(6)).
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Adhere to reporting and Minister/Treasurer interactions. Enter the annual current agreement with the Minister covering prescribed matters (s 6B(1)), include summaries in the annual report (s 6B(3)), and ensure Treasurer’s guidelines and any approvals are recorded and reported in the annual report (s 47B(4)). Maintain readiness to provide the Minister with access to books and information upon request (s 46(1)).
For trustees, executors and third parties dealing with the Public Trustee
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Rely on statutory protections but verify. Persons dealing with the Public Trustee concerning represented persons are protected as if dealing with the owner and are not required to inquire into the Public Trustee’s powers (s 28(3)), and the Registrar of Titles must register instruments executed by the Public Trustee without inquiry (s 61(1)-(2)). Nonetheless, prudence may dictate requesting confirmation or a certificate under seal (s 59) for material transactions.
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Be aware of the Public Trustee’s authority to obtain property information. The Public Trustee has statutory powers to summon persons, require production of documents and to apply to the Court for orders compelling delivery or transfer of property (s 55). If served with a summons, comply promptly to avoid contempt or penalties (s 55(6)-(7)).
For parties claiming unclaimed moneys
- Watch the advertisement and time thresholds. The Public Trustee will pay sums unclaimed for six years to the Consolidated Account by 31 March each year, but sums equal to or exceeding the prescribed amount are not to be paid to Treasury unless the Public Trustee has advertised twice at 14 day intervals in a Perth newspaper (s 45(1)-(2)). Claimants should monitor Gazette notices and local advertising.
Administrative and governance compliance checklist
- Check Gazette for current fee scale (s 38A(2)).
- Confirm whether a current agreement exists and review its summary in the Public Trustee’s annual report (s 6B(3)); note it is not legally enforceable (s 6B(6)).
- Verify whether a Fund or strategic common account is being used and obtain records for separate estate accounts and valuation schedules (ss 39E-39F).
- For significant real property transactions, confirm whether statutory thresholds apply or whether express authority or Court order has been obtained (s 49(2)).
- Where legal services are to be provided or charged, ensure direction and control by a legal practitioner (s 47A).
- Where portfolio management contracts are proposed, ensure Treasurer approval is in place and documented (s 40(1)-(2)).
Following the Act’s expressed procedures and maintaining documentary evidence of approvals, notices, valuations and fee publications will place practitioners, trustees and clients in the best position to meet statutory requirements and to respond to inquiries or disputes.