NSW Trustee and Guardian (NSWTG) is a large and powerful government agency owned by the State of NSW. As of 30th June 2018 it had 11,661 clients under its direct financial management and held $5.87 billion in clients’ assets. It was formerly known as the Public Trustee NSW until the Office of the Protective Commissioner and Public Guardian was forced to merge with it back in 2009. All States and Territories have their own Public Trustee and Public Guardian agencies with the A.C.T. being the only other to have combined their operations to date. The Public Guardian is known by the alternative name of the Public Advocate in some States while in Queensland the Public Guardian and Public Advocate perform separate functions.

NSWTG generates vast amounts of revenue by charging exorbitant fees to its many clients under financial management orders and through its roles as Power of Attorney or Executor for the general population of NSW. NSWTG has engaged in extensive promotions over the years seeking to be made Executor over the estates of anybody who should choose to take notice of their promotions. They have done this by offering to prepare wills free of charge on condition that NSWTG is made Executor. More recently this offer has been limited to pensioners while the general public only receives discounted prices when NSWTG is made Executor. Anyone who has been a beneficiary of a will where NSWTG was the Executor, will tell you of the years it took to have even the simplest of wills finalised and of the exorbitant fees NSWTG continued to charge in the meantime.

The usual way one becomes a client of NSWTG is through the NSW Civil and Administrative Tribunal, better known as NCAT. The other States and Territories also have their own similarly named Tribunals carrying out much the same functions. Families typically bring their issues before NCAT when they are unable to agree amongst themselves as to what is in the best interests of a family member (usually an elderly parent) requiring assistance in managing their finances and personal care. Alternatively, the approach to NCAT may be made when family members believe one of their siblings is stealing from the elderly parent or otherwise mismanaging their funds. Whatever the reason, the matter gets taken to NCAT in the mistaken belief that Tribunals act in much the same way as Courts in dealing with issues like these.

The facts are Tribunals are not Courts of Law and, as such and unlike the Courts, are not bound by the rules of evidence. They are set up to make quick fix on the spot decisions and in theory can make those decisions as they see fit. In practice, there are certain procedures which they are expected to follow. In NSW, NCAT will endeavour to have the parties to the proceedings reach an agreement amongst themselves. If this fails, NCAT will almost invariably appoint NSWTG as financial manager and give guardianship to the Public Guardian, regardless of the suitability of family members or of the wishes of the person being placed under the orders. Once NSWTG takes control of the finances there is little the family can do to stop the managed person being systematically stripped of their assets and having their wealth destroyed. 

A protected person of the State is not allowed to be identified. They are known as managed persons in NSW and as represented persons in Victoria while other States have different names again for them. On becoming a protected person, the vast majority will have their finances managed by the Public Trustee. Only a small minority have private managers appointed to them by the Tribunal. The Public Guardian may also be appointed but this is usually only a temporary arrangement until the protected person is placed in a nursing home, after which the guardianship order lapses. 

In NSW, on being placed under a financial management order with NSWTG, managed persons are charged a one-off establishment fee of 1% of the total value of their assets, excluding their principal place of residence or accommodation bond. There is a ceiling of $3,000.00 on this charge. Management fees are then charged on these assets each month at the rate of 1.4% P.A. with a maximum fee of $15,000.00 each year, along with account keeping fees and any investment fees. Some States instead charge their fees as a percentage of income, including from pensions. Whilst NSWTG does not do this, its fees and charges are very high compared with those of private trust companies, other than for those clients with very limited assets.

Once under NSWTG’s management, the process begins towards having the managed person placed in a nursing home and having their own home sold. Combining the Public Trustee’s and the Public Guardian’s operations into the one body, as happened in NSW back in 2009, has only made this process more streamlined and difficult to combat. The family home is usually sold under the pretext that the sale is needed in order to raise funds for a nursing home bond or to cover other requirements of the client. However, the home still gets sold even when the funds are not needed and the family has made it clear that they do not want the property sold.

The reasons behind NSWTG’s push to sell the family home are simple. Funds from the sale, other than those used for a nursing home bond, are held in cash or other forms of investments attracting fees of 1.4% P.A. for NSWTG, whereas the family home is exempt from fees. In addition, the State Government gets to collect stamp duty from the purchaser every time NSWTG decides to sell a home. For a typical property selling for $1.5 million in many parts of Sydney, the stamp duty the Government can expect to collect each time is around $68,000.00.

NSWTG, unlike State Trustees in Victoria for example, does not charge the managed person a sales commission for selling their home. Instead, the managed person pays the sales commission directly to the real estate agent that negotiated the sale. However, many real estate agents are known to pay referral fees out of their commissions from the sale, in exchange for having been given the exclusive rights to sell the property. Referral fees are usually around 25% of the sales commission which in turn is around 2.5% of the property’s sale price. For a property in Sydney selling for $1.5 million this amounts to a sales commission of $37,500.00 for the real estate agent and a referral fee of $9,375.00 to the source making the referral.

NSWTG has been entering into exclusive agency agreements with real estate agents offering referral fees, effectively preventing the properties from being sold through any other party. This process usually results in a lower price being fetched for the property as, with a client the size of NSWTG, the real estate agent’s focus turns to volume of sales rather than allowing more time to get the best price possible for each individual property owner. During the 2017-2018 financial year NSWTG managed the sale of 708 of its clients’ properties, most of which were forcibly sold against the wishes of the clients and their families. In addition to the sales, NSWTG also purchased 39 properties on behalf of clients during 2017-2018.

NSWTG is required to obtain a property valuation prior to selling a client’s home and claims that this protects their clients from having their properties undersold. The problem with this, though, is that NSWTG is able to obtain property valuations from accredited property valuers which are well below their true market values. In one case where NSWTG purchased a property on behalf of a client on the NSW Central Coast in 2011 and then went and sold it again in 2014, the same property valuer valued the property at $350,000.00 on both occasions. This was during a period of rapidly soaring property prices and when Core Logic and Domain data had both shown that like properties in the area and across Greater Sydney generally had increased by between 20% to 25% in value during that time.

Associated with the sale of clients’ homes is the disposal of the clients’ possessions from within those homes. NSWTG has no regard for their clients’ belongings and disposes of them as they see fit. Valuable items simply disappear with NSWTG accusing family members of stealing them or alternatively claiming that refrigerators, washing machines and other household appliances had broken down and that it had been necessary to dispose of them. Even items of a personal nature, including family record files and family photo albums which the clients had requested be held, are disposed of when clearing properties. Charges are then made against the clients’ trust accounts for the clearances, which on investigation turn out to be from businesses that don’t exist, and that the clients’ municipal council kerbside clearance allowances had instead been used to take away whatever belongings could not be sold.

After selling their clients’ homes and disposing of their possessions, NSWTG usually indicates to the clients that their funds are being held in cash at call investments which have been earning around 2% to 2.5% P.A. interest in recent years. NSWTG will then charge fees at the rate of 1.4% P.A. on those same funds just for managing them. The money is held in common funds along with the funds of their fellow clients and those of the State of NSW. NSWTG claims it is necessary to hold the funds in deposits earning low rates of interest, to ensure that the money is readily available if needed. However, when the clients do make requests for essential expenses to be met from their funds, it can take years for NSWTG to approve them if they are approved at all. The recently reported case of Steven Colley, where NSWTG left him to die in squalor rather than allow his funds to be used for basic everyday needs, was just one example of this.

This regular and repeated failure by NSWTG to make clients’ funds available when required does raise questions as to whether those funds are actually being held in low interest rate cash at call investments as claimed. Private managers must hold their clients’ funds in accounts in their clients’ names so that there can be no doubting where the funds are being held and the amounts involved. This is not the case when the clients’ funds are held by NSWTG. These funds are pooled with those of other clients, along with funds from the State Government, preventing the clients from readily identifying where their particular funds have been placed and instead having to rely on what is shown on their trust account statements. These statements can be flawed and lacking in detail with income offset against expenses and merely showing the balance that remains on the clients’ statements to cover up overcharging or bogus charges.

The situation is similar with the Public Trustee in South Australia where clients’ financial statements have revealed some disturbing irregularities. Original statements issued on a particular date will show one set of figures and balances but, when the same statements are re-issued at a later date covering precisely the same period, the figures and balances can be different from those shown on the original statements. The concern that exists over reconstructing clients’ statements in this way extends to the pooling of clients’ funds in the Public Trustee’s various common funds, where the State of South Australia also has funds. This pooling can make it very difficult to ensure unit holders are being linked with their own units when the units change ownership, an important consideration when the price of those units vary from day to day and the clients are not kept informed of the price movements of their units.

Clients of the Public Trustee in Victoria lost almost everything when State Trustees invested their funds in highly risky products which collapsed and were wound up following the Global Financial Crisis (GFC). The elderly clients had been led to believe their funds were placed in secure investments which would provide them with a reliable source of income in their twilight years. Instead their money had been put into investment schemes with high risk profiles run by entrepreneurs offering large inducements to financial planners placing funds in their products. Despite the severe losses inflicted on their clients, this did not stop State Trustees from charging them exorbitant fees for the losses they had caused.

Most people think the Ombudsman’s role as watchdog provides a safeguard against wrong or bad administration by State Government departments or agencies and that the Independent Commission Against Corruption (ICAC) will investigate when that administration is corrupt. In reality, the Ombudsman’s office and ICAC operate like data bases collecting details from the general public regarding their complaints against the various Government departments or agencies. These complaints are then almost invariably dismissed regardless of the strength of the evidence. It must be kept in mind that agencies like the Public Trustee are an important source of revenue for the States and that they also generate substantial income for the State Revenue Office from stamp duties when they force the sale of their clients’ properties and other assets. The money collected then in turn goes on to fund operations like those of the Ombudsman and ICAC.

It will be seen from the material presented on this website that the NSW Ombudsman has been provided with irrefutable evidence of NSWTG authorising the payment of fraudulent charges from their clients’ trust accounts. The Ombudsman justified his decision in not pursuing the matter on the grounds that the evidence did not establish the NSWTG officer concerned knew the charges he had authorised for payment were fraudulent. He refused to seek reimbursement for the clients who had lost their funds or to have NSWTG report those behind the scam to the police. Likewise, the Ombudsman saw no need for NSWTG to report thefts from clients’ unoccupied properties to the police, even when this had been requested by the clients and their families. Complaints to the Attorney General were met with the response that NSWTG is an independent agency and the Government cannot intervene in its affairs.

A more effective way of dealing with Public Trustee abuses is to have it exposed by the mainstream media wherever it occurs. Media exposure causes an outpouring of public anger over the exploitation of our most vulnerable citizens, which forces the State Governments into responding to the complaints. Unfortunately, getting the media to report on Public Trustee abuses is much easier said than done as the media generally prefers to exclude Public Trustees from scrutiny when reporting on elder abuse and exploitation. This is an unfortunate situation as Public Trustees are easily the largest organised forces engaging in financial abuse and exploitation of our elderly and most vulnerable citizens throughout Australia.

There were reports in the Victorian press over the vast sums of clients’ money that State Trustees lost when they invested the funds in high risk products which collapsed following the GFC and, then more recently, of its CEO Mr Craig Dent being dismissed for alleged misuse of more than $300,000.00 in public funds. The Today Tonight show in Adelaide carried out several investigations into the conduct of the Public Trustee and its staff in South Australia which resulted in several programmes being aired detailing the losses being caused to their clients. However, the conduct of the Public Trustees in both NSW and Queensland went virtually unreported for many years until the circumstances surrounding the death of Steven Colley, while he was under the financial management of NSWTG, were brought to light in the Gold Coast Bulletin in January 2019.

The Gold Coast Bulletin report led to a detailed article being published by the Fairfax media on 3 February 2019 warning of the total disregard Public Trustees show for the financial welfare of their clients while charging them exorbitant fees in the process. This article was published in both Fairfax’s Sydney and Melbourne newspapers and was the first time that such a detailed report focussed on NSWTG’s abuse and mistreatment of its clients had been published in a major capital city newspaper. However, the article’s claim that funds were being placed in high risk investments, unsuitable for elderly clients, is a problem more typically associated with the Public Trustees in Victoria and South Australia than it is with NSWTG, while the case cited in the article as an illustration of this actually took place in Adelaide and did not involve NSWTG.

Whilst the case cited as an illustration in the article did not specifically name NSWTG, the fact that it stated that the Public Trustee and Guardian in Barbara’s State had been put in charge of her finances and then proceeded to invest them in risky products, clearly identified it as being NSWTG. This is because NSW is the only State where the Public Trustee and Guardian operates as a combined body. In all other States the Public Guardian operates as a completely separate body from that of the Public Trustee. The A.C.T. also does combine the two bodies, but is classified as a Territory not a State. The article was correct in claiming that laws prevented the victim, Barbara, from being identified but the laws did not prevent it from revealing that the events actually took place in Adelaide and that it was the South Australian Public Trustee investing in risky products.

NSWTG is alleged to have complained that the article was damaging to its reputation of keeping to conservative investment strategies for its elderly clients. However, NSWTG should consider itself most fortunate that the author of the article chose not to speak to people in NSW first before describing NSWTG’s fees in a favourable light when comparing them with fees charged by State Trustees in Victoria. If she had have done so she would have learned of NSWTG’s penchant for selling their clients’ properties in order to charge management fees each month from the money raised from the sales, keeping in mind that family occupied properties are exempt from these fees. This can have the effect of raising a client’s fees by more than $1,000.00 each month. Having said that, the article was still a most valuable warning to all Australians to steer well clear of the Public Trustees if they don’t want to be ripped off and have their life savings destroyed.

Easily the most widespread publicity has been given to the fraudulent activities which occurred at the Public Trustee office in Canberra and which was reported in all forms of the media right across Australia. Those behind the fraud were put on trial because of the strong actions taken by the head of the Public Trustee in the A.C.T. Mr Andrew Taylor who, on being informed by other staff of the irregularities, brought in outside independent forensic accountants and reported the matter to the police. This was not a case of the media exposing corruption and forcing Mr Taylor to respond. On the contrary, it was Mr Taylor who took the initiative and the media simply reported on what was revealed as a consequence of the actions he had taken. This was quite different to what happened in Victoria and South Australia where it was the Public Trustees trying to conceal what the media was exposing.

The most disturbing thing from all this is that the same type of fraud which occurred in the A.C.T. has also been occurring in NSW. The difference is that in NSW the fraud has been swept under the carpet, the police have not been brought in, and the clients have not been reimbursed for the losses they have suffered. The Attorney General, politicians generally and the media are all well aware of what has been going on but NSWTG is considered too big a revenue raiser for the State for anyone to intervene or at least find the courage to report it. The value of assets held under its management, shown in the figures below, gives a clear indication as to the influence and power it wields relative to those of the Public Trustees in the other States.