Page 1888 - Week 07 - Wednesday, 22 August 2007
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an eligible applicant. For these reasons the government considers that the provision enabling a business partner or an employee of a missing person to be an eligible applicant should be omitted.
The government will move an amendment that will enable a carer to be an eligible applicant. Where a person has had a carer as the only close contact, it would be expected that the carer would have an interest in the property affairs of the person once the person is missing and would be more likely than others to seek the management of the person’s property.
Government amendments propose to omit a provision in the bill that seeks to repeal sections 34 (1) (b) and 34 (1) (c) of the Public Trustee Act. Such repeal would leave a gap in the law whereby long-term management of a missing person’s property by the Public Trustee under the supervision of the Supreme Court would not be available.
It is evident that management under the bill is most suited to making immediately needed or short-term decisions and the government does not think it is appropriate to stretch its scope any further than that. The government feels that the precedence of the process under section 34 of the Public Trustee should remain intact. Therefore, the government also proposes amendments to the bill to require the tribunal not to entertain an application where the Public Trustee has already applied to the Supreme Court to be a manager or has been appointed as such a manager. This approach would also avoid replication of the management process. Another related amendment proposed to the bill is to insert a provision to require that the management granted by the tribunal should cease when the Supreme Court appoints the Public Trustee as manager of the relevant property.
The government proposes amendments to the bill to require the tribunal to explicitly state the type of decisions a manager may make and the property to which such decisions relate. A further amendment is proposed to limit the duration of a management order to two years, with the tribunal having power to extend the order. These amendments would keep the operation of the decision making by managers under close supervision by the tribunal. These changes will assist a family member or relative of a missing person to act without being confused by different interpretations or inferences about the scope of the order.
The bill provides for the tribunal to remove a manager where the missing person is found to be alive or dead or is presumed to be dead. There is a concern about any civil or criminal liability of a manager acting in good faith until the manager is removed. A family member or relative seeking the tribunal’s help to enable him or her to make a decision may be deterred by the prospect of such liability.
The government therefore proposes an amendment to the bill to provide that a manager would not incur liability if the manager acted honestly and believed on reasonable grounds that the conduct was the exercise of a function under the appointment. The government proposes a similar amendment to protect a third party dealing with a manager in relation to the missing person’s property where the third party had the honest belief that the dealing was for the exercise of a function under the appointment.
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