[2025] NSWSC 311

Re Protected Estates Financial Advice Protocol

Orders made (under the NSW Trustee and Guardian Act 2009 NSW, section 64) establishing a protocol governing the retention by the manager of a protected estate of the services of an external licensed financial adviser

Catchwords

PRACTICE – NSW Trustee and Guardian Act – Managed person – Private managers – Retention of services of external financial adviser – Protocol – Regulatory regime

Cases cited

Re KT and JC, Protected Persons[2025] NSWSC 306

Legislation cited

Corporations Act 2001 Cth
Guardianship Act 1987 NSW
NSW Trustee and Guardian Act 2009 NSW

Judgment

[1]
In the course of management of a “protected estate” (within the meaning of section 38 of the NSW Trustee and Guardian Act 2009 NSW), pursuant to Chapter 4 of the Act, a manager (appointed by the Court under section 41(1)(b) of the Act or by the NSW Civil and Administrative Tribunal (“NCAT”) under section 25M(1)(a) of the Guardianship Act 1987 NSW) may, on its own initiative or by a direction given by the Court or the NSW Trustee, retain a financial adviser (being a holder of an Australian Financial Services Licence governed by Part 7.6 of the Corporations Act 2001 Cth) to provide the manager financial advice in aid of management of a particular estate.
[2]
In Re KT and JC, Protected Persons [2025] NSWSC 306 questions arose as to the relationships between a protected estate manager (a licensed trustee company within the meaning of section 9 and Chapter 5D of the Corporations Act 2001 Cth), an external licensed financial adviser formerly retained by the manager and a protected person (and members of the protected person’s family) with whom both the manager and the financial adviser had dealt.
[3]
For reasons elaborated in that judgment the Court, in consultation with the NSW Trustee and with the benefit of submissions made by several interested parties, resolved to establish (by orders made under section 64 of the NSW Trustee and Guardian Act) a Protocol designed to facilitate an orderly determination of disputes arising from a manager’s retention of an external financial adviser.
[4]
The Protocol (established by the orders set out below) does not, of itself, operate to require a manager to retain an external financial adviser but applies if a manager does retain an external financial adviser.
[5]
A licensed trustee company which holds the office of a manager is not precluded by the Protocol from utilising its own internal capabilities for the provision of financial advice.
[6]
Independently of the Protocol, a protected person or other person with a sufficient interest may apply to the NSW Trustee (or the Court), at his or her own risk as to costs, for a direction that a manager retain an external financial adviser, to which retainer the Protocol would apply subject to the terms of the NSW Trustee’s (or the Court’s) direction in the particular case.
1. (1)
  NOTE that:
2. (2)
  NOTE that, subject to further order, these orders apply to so much of a protected person’s estate that is subject to management under Chapter 4 of the NSW Trustee and Guardian Act 2009 NSW where the person (hereinafter called “a financial manager”) appointed to manage the estate under section 41(1)(b) of the Act or section 25M(1)(a) of the Guardianship Act 1987 NSW is a licensed trustee company within the meaning of section 9 (and Chapter 5D) of the Corporations Act 2001 Cth, a private corporation or a natural person appointed as a “suitable person” to manage a protected estate subject to the orders and direction of the NSW Trustee.
3. (3)
  ORDER, subject to further order of the Court and orders or directions of the NSW Trustee, that:
4. (4)
  ORDER, subject to further order of the Court and orders or directions of the NSW Trustee, that:
5. (5)
  ORDER, subject to further order of the Court and orders and directions of the NSW Trustee, that:
6. (6)
  RESERVE to the NSW Trustee liberty to apply generally for an order that these orders be discharged or varied.