Public Trustee Act 1941

Key definitional and structural concepts are set out in Part I and the definitions in s 2. Several concepts structure the Public Trustee’s powers and its interactions with clients, courts and government.

• Client. The Act defines “client” broadly (s 2), capturing beneficiaries of estates administered by the Public Trustee, donors of powers of attorney under which the Public Trustee is donee, persons appointing the Public Trustee as executor, persons who invest in a Fund, beneficiaries of trusts administered by the Public Trustee, persons who appoint the Public Trustee as agent, and any class prescribed by regulation. The definition determines who may be charged fees (ss 38A-38B) and who benefits from services (s 37C).

• Fund/Common Account/Strategic Common Account. “Fund” is a term of art that covers the Common Account and strategic common accounts (s 2). The Common Account is continued as a Fund and treated as an agency special purpose account under the Financial Management Act 2006 (s 39A(1)-(2)). Strategic common accounts may be separately established and are also agency special purpose accounts (s 39B). Detailed rules for investment, valuation, allocation between participating estates, record-keeping and the ability to appoint portfolio managers are set out in ss 39C-40 and 39E-39F.

• Current agreement. The Minister and the Public Trustee must enter a written agreement each 12 months covering prescribed matters (s 6B(1)). The current agreement may determine the scale of fees (s 6B(2)(a)), proportions of fees credited to the Consolidated Account (s 6B(2)(b)), transfer rules for reserve funds (s 6B(2)(c)), and permitted uses for reserve funds (s 6B(2)(d)). The annual report must include a summary and performance report on the current agreement (s 6B(3)). Crucially the Act states a current agreement “is not legally enforceable” (s 6B(6)).

• Delegation and judicial notice. The Public Trustee may delegate powers and duties by written instrument except the power of delegation itself (s 5(1)-(2)). Courts are required to take judicial notice of the appointment of the Public Trustee, delegations, signatures and the seal of office (s 5A).

• Immunities and liability. The Public Trustee is an agent of the Crown and enjoys Crown status, immunities and privileges (s 4(3)). Officers and the Public Trustee are not personally liable except for fraud or crime (s 57). At the same time the Act preserves remedies for persons injured by the Public Trustee’s acts or omissions and provides for indemnification by the Consolidated Account or other prescribed fund (ss 56-57).

• Powers in multiple capacities. The statute expressly permits appointment of the Public Trustee in a wide range of roles,trustee, executor, administrator, guardian, agent, custodian trustee and advisory trustee,and provides that the Public Trustee’s powers in those roles are equivalent to those of a private person unless the Act or a court order provides otherwise (s 7; ss 8, 12, 20-23). Where appointed as a trustee’s agent or as agent of an executor/administrator the Public Trustee may exercise the delegated discretionary powers of the principal as fully as the principal could (ss 12A, 22A).

• Financial governance and oversight. The Act situates the Public Trustee within public finance regimes: Fund accounts are agency special purpose accounts under the Financial Management Act 2006 (ss 39A(2), 39B(3)); the Financial Management Act and Auditor General Act apply to the Public Trustee (s 48); the Treasurer’s approvals and guidelines apply to Fund investments and portfolio contracts (ss 40, 47B).

Together these concepts form the statutory machinery: a Crown corporate trustee with broad functional powers, a framework for pooled investment and fee-setting, listed reporting and ministerial/Treasurer interactions, protections for third parties dealing with the Public Trustee, and statutory remedies and financial backstops.

The Act creates a set of roles and payment lines that identify who pays, who decides and who is protected.

• Clients and beneficiaries. The primary economic actors affected are the defined “clients” (s 2). Fees charged for functions and services under the Act are payable out of the capital or income of the estate (s 38B(4)). The Public Trustee may charge fees for estate administration, legal services under direction of a legal practitioner (s 47A), investment management and estate planning services (s 37C), and may deduct fees from estates in accordance with the published scale (s 38B(1), (5)). Clients therefore directly bear the cost of the Public Trustee’s fees and reimbursable expenses, subject to the Public Trustee’s discretion to waive fees in whole or part (s 38B(9)).

• Executors, administrators and private trustees. These persons may appoint the Public Trustee as agent (ss 12, 12A, 22A), or may apply for the Public Trustee to be appointed by court order (ss 10, 12). Private executors or administrators may transfer administration to the Public Trustee with the Public Trustee’s consent and after accounts are filed and passed (s 12(4)). The Act also provides that the Public Trustee may be preferred to a creditor applying for administration unless the creditor proves it would better benefit the estate (s 11).

• Represented persons and their families. The Act gives the Public Trustee powers and summary remedies in respect of represented persons’ property (Div 4, ss 24, 27-33). Persons dealing with the Public Trustee in relation to represented persons’ estates have statutory protections: purchasers and mortgagees are not required to inquire into the Public Trustee’s powers or the application of purchase monies (s 28(3)). The Public Trustee may make discretionary payments for funeral and related expenses from funds of represented persons in certain circumstances (s 29(4)).

• Courts and registrars. Courts and registrars are implicated: courts grant orders to administer estates on application by the Public Trustee and must take judicial notice of the Trustee’s appointment and delegates (ss 5A, 10). The Registrar of Titles must register transmissions and instruments executed by the Public Trustee without obligation to inquire into authority (ss 3, 61).

• Minister and Treasurer. The Minister and Treasurer are decision-makers with specified powers: the Minister must enter the annual current agreement with the Public Trustee (s 6B(1)) and has access to the Public Trustee’s books (s 46). The Treasurer must approve portfolio management contracts (s 40(1)-(2)) and may issue guidelines for Fund investment (s 47B(2)-(4)); approvals and guidelines are in writing (s 47B(1)-(2)). The Minister also has discretion in authorising transfers to/from reserve funds under the current agreement (s 6B(2)(c)-(d), s 44A).

• State finances and taxpayers. The Consolidated Account and the Treasurer play a role in meeting deficiencies. If the Common Account has insufficient funds, the Treasurer shall charge sums necessary to meet the deficiency to the Consolidated Account without further appropriation (s 42). The Consolidated Account or another prescribed fund is liable to discharge liabilities of the Public Trustee (s 56(2)). Thus public finances are the ultimate financial backstop for deficits and liabilities arising from the Public Trustee’s corporate capacity.

• Third-party service providers. Investment managers and legal practitioners. The Act permits the Public Trustee to enter portfolio management contracts with persons approved by the Treasurer and to delegate certain investment functions to them (s 40). Legal services charged by the Public Trustee are only recoverable if provided under the direction and control of a legal practitioner (s 47A(2)-(3)), which affects how the Public Trustee organises its legal service delivery and cost recovery.

• Real property interests. Owners, unknown owners, absent owners and purchasers are affected by the uncared-for property regime (s 37A). The Public Trustee may apply ex parte for Court authorisation to exercise powers in relation to uncared‑for property and must publish notices in the Gazette and local newspaper (s 37A(1)-(2)).

In short, costs fall primarily on clients and estates through fees and deductions (s 38B), while ultimate financial exposure for deficits rests with the Consolidated Account and taxpayers (ss 42, 56(2)). Decision-making authority is shared: the Public Trustee has broad operational discretion, the Minister and Treasurer hold oversight and approval functions, and courts adjudicate orders and disputes.

The Act sets out duties and rights for the Public Trustee, clients, the Minister and Treasurer, third parties, and courts. These are expressed across multiple Parts and Divisions; the following are principal operational duties and statutory rights.

Public Trustee duties and rights

• Corporate office and powers. The Public Trustee must administer the Public Trust Office and exercise the powers and discharge duties vested in the office under the Act and other written laws (s 4(1)-(2); s 49(1)). The Act lists specific powers including collection and recovery of moneys, lease and sale of property, purchasing land, carrying on businesses, bringing and defending proceedings, and settling demands (s 49(1)(a)-(s)). Where the Public Trustee acts as executor or administrator, the Administration Act and related laws apply to that administration (s 10(3); s 49(1) note).

• Appointment acceptance and delegation. The Public Trustee may be appointed in almost any role where a private person could be appointed (s 7(1)-(2)), and may delegate powers by signed instrument, except the power of delegation itself (s 5(1)-(2)).

• Investment and fund management. The Public Trustee has powers to invest moneys of estates either into a Fund or according to trustees’ investment powers under the Trustees Act 1962 (s 39C). Fund investments are limited to the trusts Act framework and Treasurer’s guidelines (s 39D). The Public Trustee must maintain separate accounts for each estate participating in a Fund and a register of investments including independent valuations at least quarterly (ss 39E, 39F).

• Fee setting and collection. 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)). The Public Trustee is entitled to charge fees not exceeding the published scale (s 38B(1)) and to be reimbursed for expenses properly incurred (s 38B(3); s 39(1)).

• Records and reporting. The Public Trustee must keep an index of estates, accounts of receipts and payments, permit inspection and copies on application by interested persons subject to secrecy obligations (s 47(1)-(3)). The annual report must include summary of the current agreement and performance reporting (s 6B(3)) and Treasurer’s guidelines must be included in the annual report when issued or amended (s 47B(4)).

• Statutory remedies and actions. The Public Trustee may commence summary proceedings for protection of represented persons’ property (s 27), may apply for orders to administer estates (s 10), and may take the opinion of the Supreme Court ex parte on questions arising in his duties (s 58).

Minister, Treasurer and Court duties and rights

• Minister: required to enter an annual current agreement on prescribed matters and has access to the Public Trustee’s books; receives a summary in the annual report (s 6B(1), (3); s 46(1)).

• Treasurer: must give written approval for portfolio management contracts and their terms/duration (s 40(1)-(2)), may issue written investment guidelines for Fund moneys and may amend or revoke them (s 47B(2)). Treasurer’s guidelines are not subsidiary legislation and must be included in the Public Trustee’s annual report (s 47B(3)-(4)).

• Court: grants orders for administration, may require notice or evidence, may place restrictions on orders (s 10(1)-(3)). The Court may make vesting orders and resolve disputes with advisory or managing trustees (ss 21(5), 22(1)(h), 22(2)(i)). The Court may authorise the Public Trustee to exercise powers over uncared-for property on an ex parte application (s 37A(1)).

Third‑party rights and protections

• Persons dealing with the Public Trustee are protected in certain transactions: purchasers and mortgagees from the Public Trustee of property of a represented person are not required to inquire into the Public Trustee’s powers or the application of purchase/mortgage monies (s 28(3)). Certificates under the Public Trustee’s hand and seal are evidence of appointment and related facts (s 59).

Financial duties and consequences

• Fee application and waivers. Fees are payable out of the estate’s capital or income (s 38B(4)); the Public Trustee may deduct fees according to the time and manner set out in the published scale (s 38B(5)). The Public Trustee may waive fees for proper cause (s 38B(9)).

• Fund administration and distributions. The Public Trustee must credit interest to participating estates half‑yearly in respect of the Common Account, may deduct management fees up to a specified rate from the total interest (Common Account up to 6.6%: s 39A(4)-(7)), and must distribute increases or decreases in value for strategic common accounts at least quarterly (s 39E(2)).

• Advances and security. The Public Trustee may make advances from the Common Account for administration purposes or against shares (s 44). Advances carry a statutory charge on the estate or share and bear interest at a rate fixed by the Public Trustee not exceeding 5% unless Minister approves (s 44(2)-(4)).

Liability and remedies

• Remedies against the Public Trustee mirror those a claimant would have against a private person for comparable acts or omissions, subject to statutory indemnification and exceptions where injury could not reasonably have been averted (s 56(1), (1A)). The Consolidated Account or other prescribed fund bears liability to meet sums required to discharge liabilities of the Public Trustee in his corporate capacity (s 56(2)). Officers are not personally liable unless fraud or crime is involved (s 57).

These duties and rights create a structure in which the Public Trustee operates with significant autonomy in day-to-day decisions and investment, subject to reporting and ministerial/Treasurer oversight, while financial exposures are routed to public accounts and the Public Trustee’s scale of fees and Fund rules set the economics of service delivery.

The Act specifies specific coercive and enforcement powers, remedies and penalties for non-compliance, and outlines who enforces and who ultimately pays.

Court enforcement and contempt

• Summons, examinations and Court orders. The Public Trustee may summon persons to answer questions about property and produce documents (s 55(2)-(3)). If a person fails to deliver property or to comply with process, the Public Trustee may apply to the Court for orders compelling delivery, transfer or assignment (s 55(4)). The Court may order payment of expenses in connection with such summonses and may treat non‑compliance as contempt (s 55(5)-(6)). Contempts may attract arrest and imprisonment until the contempt is purged or for a period fixed by the Court (s 55(6)).

• Summary proceedings. For represented persons, the Public Trustee may bring summary proceedings before a Judge to recover wrongfully held or converted property, or to obtain payment of sums due; the Judge may award damages and, on default, imprisonment up to six months (s 27(1)-(2)). Orders made under this summary jurisdiction are enforceable like ordinary court judgments.

Monetary penalties

• Civil penalty for wilful non‑compliance. A person wilfully neglecting to comply with s 55 (inquiries as to property) may be liable to a penalty not exceeding $400, recoverable by civil action by the Public Trustee (s 55(7)). The Act does not specify a range of criminal fines for other breaches within the Public Trustee’s procedural sections; it relies on court orders and common law remedies elsewhere.

Registration and title enforcement

• Registration duties. The Registrar of Titles must register transmission to the Public Trustee and all transfers and instruments executed by the Public Trustee without obligation to inquire into authority (s 61(1)-(2)). This removes an enforcement barrier for third parties relying on registered title.

Financial enforcement and backstop

• Charge for advances. Advances made from the Common Account in connection with administration or against shares are a first charge on estate property (s 44(4)). The Public Trustee’s certificate of amount owing is prima facie evidence of debt (s 44(6)).

• Consolidated Account liability. If the Common Account is insufficient to meet lawful claims, the Treasurer must charge necessary sums to the Consolidated Account without further appropriation (s 42). Further, liabilities of the Public Trustee in his corporate capacity are to be discharged from the Consolidated Account or another prescribed fund (s 56(2)). This is a statutory enforcement and indemnity mechanism that shifts ultimate financial responsibility to public funds.

Liability limits and exceptions

• Immunity for Crown agent and officers. The Public Trustee is an agent of the Crown and enjoys Crown status, immunities and privileges (s 4(3)). Officers and servants acting bona fide under authority are not personally liable for acts done or omitted unless liability arises from actual fraud or crime (s 57). The Act balances this immunity by preserving remedies against the Public Trustee as corporate entity and providing indemnification through public accounts (s 56).

Administrative enforcement and oversight

• Ministerial access and reporting. The Minister and authorised department officers have access to all books, accounts and papers, and the Public Trustee must furnish information as requested (s 46(1)). Annual reporting obligations include a summary of the current agreement and performance (s 6B(3)), and Treasurer’s guidelines must be included in the annual report when issued or amended (s 47B(4)). These reporting and access obligations are administrative enforcement levers rather than penal sanctions.

Practical effect

• Enforcement is a mix of court coercion (orders, contempt, execution against property), statutory charging mechanisms (advances as first charge), public indemnity (Consolidated Account liability and Treasurer interventions), and administrative oversight (Minister/Treasurer powers, reporting). Monetary penalties in the Act are limited and specific (for non‑compliance with inquiries s 55(7)); most enforcement relies on judicial process and public finance backstops (ss 42, 56(2)). Certificates and judicial notice provisions (ss 59, 5A) facilitate the Public Trustee’s transactional efficacy by limiting evidentiary obstacles in litigation and registration.

The Act cross‑references, incorporates and sits alongside multiple other written laws. The statute’s structure and operations rely on those linkages.

Primary statutory linkages

• Trustees Act 1962. The Act expressly allows the Public Trustee to exercise rights, powers and defences available to trustees under the Trustees Act and to invest moneys held for more than one estate as pooled investments in accordance with the Trustees Act (s 23(1)-(2)). Fund investments are also limited by Part III of the Trustees Act as a statutory ceiling on permitted investments (s 39D(a)).

• Financial Management Act 2006 and Auditor General Act 2006. The Common Account and strategic common accounts are agency special purpose accounts under the Financial Management Act (ss 39A(2), 39B(3)). The Financial Management Act 2006 and the Auditor General Act 2006 apply to the Public Trustee for financial administration, audit and reporting purposes (s 48). This ties the Public Trustee’s accounting and audit regimes to state public finance law.

• Guardianship and Administration Act 1990. The Act defines “represented person” with reference to the Guardianship and Administration Act and provides powers to act as administrator under that Act (s 2; s 24). Sections dealing with represented persons’ estates (Div 4) function in that statutory context including definitions of orders, administrator roles and functions.

• Administration Act 1903. The Act integrates with administration and probate law; estates pending probate vest in the Public Trustee until probate or administration is granted (s 9), and the Public Trustee’s role as executor or administrator is subject to the Administration Act where applicable (s 49(1) note). The Act also subsumed certain functions formerly exercised by the Chief Justice under the Administration Act (s 3).

• Personal Property Securities Act 2009 (Commonwealth). The Act declares that a lien created under s 63(1) (lien on policy moneys for premiums) is subject to section 73(2) of the PPSA (s 63(2)), engaging Commonwealth personal property securities regime.

• Legal Profession Uniform Law (WA). Section 47A provides that despite anything in the Legal Profession Uniform Law (WA), the Public Trustee may charge fees for preparing wills, enduring powers of attorney and providing legal services, but only where the service is under the direction and control of a legal practitioner (s 47A(1)-(3)). This carves out a specific interface between the Public Trustee’s legal service charging and the Legal Profession Uniform Law.

• Unclaimed Moneys Act 1912 / Unclaimed Money Act 1990. The Act requires proceeds from sale of unclaimed personal effects of represented persons to be paid to the Treasurer as unclaimed moneys to be dealt with under the Unclaimed Moneys Act (s 33). Section 45 interacts with unclaimed moneys rules and advertising thresholds.

• Workers Compensation and Injury Management Act 2023. The Public Trustee receives investments ordered under that Act (s 37(3A)-(3C)), and must hold and disburse them in accordance with the orders, but retains sole investment discretion (s 37(3C)).

Administrative and procedural linkages

• Supreme Court and rules of court. Many of the Public Trustee’s appointment, administration and removal processes depend on orders, rules and practice of the Supreme Court and Registrars, and the Court may make rules to give full effect to the Act (s 65). Judicial notice (s 5A) reduces evidentiary formalities in court practice.

• Public Sector Management Act 1994. The appointment of the Public Trustee and staff is governed by Part 3 of the Public Sector Management Act (s 4(1); s 6). This places employment and appointment within public sector employment law.

• Transfer of Land Act 1893. The Public Trustee has express power to bring land under the Transfer of Land Act (s 49(1)(f)) and ss 61(1)-(2) oblige the Registrar of Titles to register the Public Trustee’s dealings without inquiry.

Scope and constraints arising from interactions

• Investment constraints. The Fund investment regime is constrained by the Trustees Act Part III and Treasurer’s guidelines (s 39D) and the Treasurer must approve portfolio management contracts and their terms (s 40). Treasurer’s guidelines are not subsidiary legislation (s 47B(3)), indicating administrative rather than legislative oversight of investment policy.

• Financial accountability. The application of the Financial Management Act 2006 and the Auditor General Act 2006 to the Public Trustee (s 48) brings the Public Trustee within the State’s financial and audit architecture, including reporting and audit standards.

• Public indemnity and constitutional funding. Cross-references that make Fund accounts agency special purpose accounts, combined with the Treasurer’s power to charge the Consolidated Account for Common Account deficiencies (s 42), integrate the Public Trustee’s financial exposures into the State’s fiscal framework.

Taken together, the Act does not operate in isolation. It delegates investment, reporting and personnel matters to the existing public law architecture (Trustees Act, Financial Management Act, Public Sector Management Act, Legal Profession Uniform Law and others). These linkages define boundaries for permissible action, reporting, audit and judicial oversight.

The compilation table in the Act records a long amendment history. Key mechanical changes introduced over time are shown in the compilation table and by the insertion or amendment notes within the text.

Notable amendments captured in the source

• 1947-1979: Early amendments and periodic updates to process, thresholds and administrative practice (Public Trustee Act Amendment Acts 1947, 1950, 1953, 1962, 1964, 1972, 1975, 1978; see compilation table). These are recorded in the table and reflected in marginal amendment notes throughout the text (e.g. ss 10, 12).

• 1985-1996: Financial administration linkages and public sector management. The Acts Amendment (Financial Administration and Audit) Act 1985 and subsequent amendments tied the Public Trustee’s financial administration to State frameworks (see compilation entries for 1985 and 1996). The Public Trustee’s accounts and reporting obligations were modernised and linked to broader State financial management.

• 2008: The Public Trustee and Trustee Companies Legislation Amendment Act 2008 (No. 9 of 2008) introduced comprehensive structural changes that appear throughout the Act. This amendment inserted Part IA (the Public Trustee), added the Common Account and Fund architecture (s 39A), introduced strategic common accounts (s 39B), set out the current agreement requirement with the Minister (s 6B), inserted other services provisions (ss 37B-37C) and modernised fee mechanisms (ss 38A-38B). The Act’s marginal notes repeatedly reference No. 9 of 2008 as the source of inserted Parts and Divisions.

• 2010-2014: Standardisation, financial and guardianship links. Later amendments connected the Public Trustee more closely to the Financial Management Act and the Guardianship and Administration Act regime (see compilation entries: 2010, 2014). These amendments adjusted administrative and guardianship interfaces.

• 2011: Interaction with the Commonwealth Personal Property Securities framework via the Personal Property Securities (Consequential) Act 2011 altering s 63(2).

• 2022: The Legal Profession Uniform Law Application Act 2022 is reflected in amendments to s 2 definitions and s 47A, permitting the Public Trustee to charge for legal services subject to direction and control of a legal practitioner (compilation table entries and s 47A amendments).

• 2023-2024: The Workers Compensation and Injury Management Act 2023 added specific subsections to s 37 (ss 37(3A)-(3C)) to address investments ordered under that Act and their handling by the Public Trustee.

• 2025: The compilation table records the Statutes (Repeals and Minor Amendments) Act 2025 making deletions to certain provisions and a 2025 commencement entry (see compilation table at the end of the Act). The text shows some sections deleted and notes regarding reprints and deletions.

Documentary detail and commencement

• The compilation table lists each amending instrument, assent date and commencement date, enabling tracking of precisely when particular changes took effect. For example the Public Trustee and Trustee Companies Legislation Amendment Act 2008 came into operation on 1 July 2008 (compilation table), and many provisions inserted by that Act are identified in the text (see notes to s 39A and Part IA).

• Reprints at various dates (e.g. 1969, 1981, 1993, 2001, 2006, 2008) reflect consolidated versions of the Act incorporating those amendments, per the compilation table.

Practical takeaways from amendment pattern

• The Act has evolved from an older curatorial/official trustee model to an incorporated Public Trustee with explicit Fund management, fee setting and modern financial governance (notably around 2008).

• Later amendments increasingly tie the Public Trustee into state financial and guardianship frameworks (Financial Management Act, Guardianship and Administration Act, Legal Profession Uniform Law), reflecting a policy choice to integrate public trust administration within broader public sector governance structures.

The compilation table at the end of the Act is the source of each listed amendment, its instrument and commencement date; practitioners should consult that table for precise amendment provenance and timing when applying any historical or transitional analysis.

The Act’s text and the compilation provided do not identify any judicial decisions or cases decided under the Public Trustee Act 1941. The statute itself contains procedural and evidentiary mechanisms that reduce formal litigation friction:

• Judicial notice: courts must take judicial notice of the Public Trustee’s appointment, delegations and seal (s 5A). Certificates from the Public Trustee under seal are prima facie evidence of appointment or authority (s 59).

• Court functions and ex parte powers: the Public Trustee has express statutory access to the Supreme Court for orders to administer estates, transfer administration, and ex parte authorisation to act in respect of uncared-for property (ss 10, 12, 37A). The Public Trustee may seek ex parte directions from the Court on questions of law or fact in the discharge of duties (s 58).

• Remedies: the Act preserves remedies against the Public Trustee analogous to those available against a private person for comparable acts and omissions and establishes indemnity mechanisms (ss 56-57). Summary proceedings are available for protection of represented persons’ property with statutory enforcement tools (s 27).

Because the compilation does not cite cases, no case law is named in the text and none can be summarised here on the authority of the Act itself. Practitioners seeking litigation history should consult reported decisions of the Supreme Court of Western Australia, administrative tribunals, and appellate courts for precedents interpreting specific provisions such as the scope of delegation (s 5), the primacy of Consolidated Account indemnity (s 56(2)), the operation of Funds (ss 39A-39F), or the Public Trustee’s duties under ss 49 and 55. The Act’s evidentiary and registration provisions (ss 5A, 59, 61) are likely to be relevant in such case law.

The Act contains operational and governance features likely to surprise or catch practitioners who do not examine the statutory detail.

1. Current agreement not legally enforceable (s 6B(6)). The Minister and the Public Trustee must enter a written annual current agreement addressing fees, reserve funds and use of funds (s 6B(1)-(3)), and the current agreement may determine the scale of fees (s 6B(2)(a)). However the Act expressly declares a current agreement “is not legally enforceable” (s 6B(6)). Mechanically this means contractual or court remedies to enforce a current agreement against the Public Trustee are not available under the Act; oversight is implemented through reporting (s 6B(3)) and Minister access (s 46) rather than legal enforceability.

2. Treasurer’s guidelines are not subsidiary legislation (s 47B(3)). The Treasurer may issue written guidelines to be followed for Fund investment (s 47B(2)) and include them in the Public Trustee’s annual report (s 47B(4)). The Act explicitly states those guidelines are not subsidiary legislation (s 47B(3)). Practitioners should note that guidelines therefore do not attract the formal procedural controls and parliamentary oversight that apply to disallowable instruments.

3. Fees and charging power coupled with compulsory deductions (ss 38A-38B, 39A(4)). The Public Trustee sets and publishes a scale of fees (s 38A(1)-(2)). Fees are payable out of estate capital or income and may be deducted or paid at times specified by the scale (s 38B(4)-(5)). The Common Account management fee is specified as up to 6.6% of total interest or income earned (s 39A(4)). This is a concrete cost line that affects returns to beneficiaries.

4. Discretion to waive fees but with no statutory refund rule. The Public Trustee may waive fees in whole or part for proper cause (s 38B(9)). There is no detailed statutory refund regime if the Public Trustee later decides fees should not have been charged. Practical recourse depends on internal complaint processes and, ultimately, court remedies for wrongful acts or negligence (ss 56-57).

5. Public Trustee as Crown agent with immunity but public indemnity. The Public Trustee is an agent of the Crown with Crown immunities (s 4(3)) and officers are not personally liable unless fraud or crime is involved (s 57). At the same time the Act provides claimants remedies against the Public Trustee as a corporate entity (s 56(1)) and the Consolidated Account or prescribed fund is liable to discharge those liabilities (s 56(2)). Practitioners must recognise the duality: operational immunity for officers but public financial backstop for claimants.

6. Funds and pooled investment rules. Investments from Fund moneys are governed by the Trustees Act and Treasurer’s guidelines (s 39D). Strategic common accounts require quarterly valuation and distribution to participating estates (s 39E(2)); the Public Trustee must keep separate accounts for each participating estate (s 39F(1)). Practitioners should note the mechanics for valuation, daily entitlement calculations and the ability to withdraw amounts standing to the credit of an estate subject to reconciliation with distributions (s 39E(4)-(6)).

7. Thresholds for real property transactions (s 49(2)). The Public Trustee cannot, without express authority, sell real property of greater value than $50,000, exchange real property of value greater than $25,000, or borrow more than $20,000 (s 49(2)), except in specified circumstances. These numeric thresholds are statutory and may be amended; reliance on the Public Trustee for large value property transactions requires checking whether express authority or court orders have been obtained.

8. Unclaimed moneys process and advertisement requirement (s 45). The Public Trustee must pay sums unclaimed for six years to the Consolidated Account annually, but sums equal to or exceeding the prescribed amount are not to be paid unless advertised twice at 14 day intervals in a Perth newspaper (s 45(1)-(2)). That creates a specific procedural requirement for higher-value unclaimed sums.

9. Legal services charging subject to direction and control of legal practitioner (s 47A). The Public Trustee may charge for preparing wills, enduring powers of attorney, and legal services despite the Legal Profession Uniform Law, but only if prepared or provided under the direction and control of a legal practitioner (ss 47A(1)-(3)). This means charging for legal services requires in-practice lawyer oversight; otherwise the fee recovery power does not apply.

10. Non‑judicial enforceability of Treasurer approvals. The Treasurer’s written approvals for portfolio contracts (s 40) and the guidelines (s 47B) are administrative in nature. The Act requires the Treasurer’s written approval but does not create an enforceable private right for third parties unless separate statutory duties are breached, so scrutiny of approval decisions is via public administrative law processes rather than built-in statutory private enforcement.

These specific provisions are the concrete features that commonly produce surprises in practice. Practitioners should check gazetted fee schedules, the current agreement (for operational intent though not legally enforceable), Treasurer’s guidelines and any Court orders before acting.

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

• 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.

• 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

• 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)).

• 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

• 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.

• 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

• 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.

• 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

• 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.

• 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)).

• 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

• 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.

• 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.