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Chapter 9 – Enduring Guardianship
9. 1. IntroductionThis chapter describes key aspects of the power of a person to make arrangements for the possibility that they lose their decision-making capacity, by appointing an enduring guardian. Loss of decision-making capacity will become a reality if, for example, they already have, or subsequently develop dementia.
The concept of enduring guardianship was first introduced, in Australia, by the Guardianship and Administration Act 1993 (SA) which came into force in 1995. Since then enduring guardianship has been introduced by legislation in all the other States and in the Australian Capital Territory.
In all the States and the Australian Capital Territory, adults with the mental capacity to do so may appoint other adults they trust to become their guardians and make personal decisions for them when they lose the capacity to make those decisions for themselves. The guardians so appointed are called enduring guardians in South Australia, New South Wales, Tasmania, Victoria and Western Australia. They are appointed under legislation that sets out the arrangements for their appointment and associated matters.[1] In Queensland, and the Australian Capital Territory where the powers of attorney legislation has been extended, attorneys may be appointed under enduring powers of attorney to exercise not only financial management and other similar functions as agent on behalf of the person appointing them, but also personal decision-making functions on behalf of their appointors.[2] They are known as attorneys for personal matters in Queensland and attorneys for personal care matters in the Australian Capital Territory.
In South Australia, New South Wales, Tasmania and Victoria the legislation, which is in identical terms, does not refer to a test for capacity to appoint an enduring guardian.[3] The only statutory requirement is that the person be 18 years or older. In Western Australia the person must be 18 years or older and have “full legal capacity” which itself is not defined.[4] Consequently, the test for capacity to appoint an enduring guardian is to be found in the common law set out in 9. 3. 2.
In Queensland under the general principles of the Powers of Attorney Act 1998 (Qld), a person is presumed to have capacity.[5] Nevertheless the Act states that a person may make an enduring power of attorney only if they understand the nature and effect of the enduring power of attorney. Furthermore, the Act states that understanding the nature and effect of the enduring power of attorney includes understanding the following matters:
1. that they may, in the power of attorney, specify or limit the power to be given to an attorney and instruct an attorney about the exercise of the power,
2. when the power begins,
3. that once the power has begun, the attorney has power to make, and will have full control over, the matters covered by the power subject to terms or information about exercising the power included in the enduring power of attorney,
4. that they may revoke the enduring power of attorney at any time when they are capable of making an enduring power of attorney giving the same power to an attorney,
5. that the power of attorney continues even if they lose capacity and become “a person who has impaired capacity”, and
6. that at any time they are not capable of revoking the enduring power of attorney, because they have become “a person who has impaired capacity”, while they may still be able to express their views, they will be unable to effectively oversee the use of the power.[6]
The Australian Capital Territory legislation is similar to the Queensland Act. The Powers of Attorney Act 2006 (ACT) states that, in the absence of evidence to the contrary, a person who makes a power of attorney about personal care or health care matters is taken to understand the nature and effect of making the power of attorney.[7] That Act also notes that the term “understanding the nature and effect of making a power of attorney” includes understanding the same matters as are set out in the Queensland Act.[8]
It should be noted that for the purposes of the ACT Act, a person has impaired decision-making capacity if they cannot make decisions in relation to their affairs or do not understand the nature or effect of the decisions they make in relation to those affairs.[9] A person does not have impaired decision-making capacity only because they have certain attributes or behaviours set out in section 91 of the Act.
The initial test for capacity to make documents with legal effect, often called instruments, is long established in Australian common law. It was laid down in 1954 by Dixon CJ, Kitto and Taylor JJ of the High Court of Australia as follows:
The mental capacity required by law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of the transaction when it is explained.[10]
In 1988 Young J of the Supreme Court of New South Wales noted that when considering whether a person is capable of giving that an enduring power of attorney, which is not unlike an appointment of an enduring guardian:
[O]ne would have to be sure not only that she understood that she was authorising someone to look after her affairs but also what sort of things the Attorney could do without further reference to her.[11]
In England the accepted view appears to be that to have the capacity to make an enduring power of attorney the principal (the giver of the power) must understand nature and effect of their appointment is that:
1. the attorney can take complete control of their financial affairs (unless the terms of the power of attorney limit this),
2. the attorney can do anything principal can do,
3. the attorney’s authority will continue after principal loses capacity, and that,
4. the enduring power of attorney effectively becomes irrevocable if principal loses capacity (because the principal can no longer revoke the power of attorney).[12]
This approach was followed in Queensland before the enactment of the Powers of Attorney Act 1998(Qld) subject to the caveat noted by Cullinane J that it is “not necessary for a person to have capacity to understand all of the implications or legal consequences of the grant of the power of attorney”.[13] Nevertheless, in Queensland and the Australian Capital Territory, appointors (the makers of enduring powers of attorney) must understand each matter set out in the statutory test for capacity.
At the time of writing, no test had been laid down for capacity to make an appointment of an enduring guardian in the other States. However, it is safe to assume that the Gibbons v Wright approach is the starting point and that an appointor will be treated as having capacity if they are able to understand the nature of the appointment they are making when it is explained to them.[14] While it would not be necessary for them to understand all the implications or legal consequences of the appointment, it is suggested that they would need to understand that they:
1. are appointing someone to make all the personal decisions for them that a guardian is authorised by legislation or the common law to make or, if the appointment is limited, just those decisions set out in appointment of enduring guardianship, during any period in which they have lost their capacity, even if they subsequently regain their capacity,
2. are able to instruct the enduring guardian about the making of those decisions in the appointment document,
3. will not be able to revoke the appointment if they lose capacity, and
4. while they could, if they were still physically able to do so, communicate their views to their enduring guardian during any periods in which they have lost their capacity, their enduring guardian would not be bound by those views but would be obliged to make decisions for them in their best interests.
It is suggested that it is good practice for any lawyer assisting a client to make an appointment of an enduring guardian in any of the States other than Queensland to advise their clients of the matters set out in the last paragraph. Lawyers in Queensland and the Australian Capital Territory should advise their clients of the matters set out above and contained in their powers of attorney legislation.[15] If a client is unable to understand any of those matters when explained, it is suggested that they will lack the capacity to appoint an enduring guardian.
Collier and others have noted at least anecdotal evidence the failure by lawyers when taking instructions for the making of enduring documents from those whose symptoms of declining capacity would have been apparent at the time the instructions were taken to consider the elements of capacity and ask probing questions. Instead, they have been prepared to rely on questions which require a “yes” or “no” answer for their assessment of their client’s capacity. Adopting the approach recommended by Collier and others to lawyers when obtaining instructions for the drafting of enduring powers of attorney for financial and personal matters and similar documents in Queensland, it is suggested that it is pertinent when obtaining instructions for the drafting of appointments of enduring guardians and similar enduring powers of attorney elsewhere in Australia that lawyers to inquire, “at least in a general way”, into:
1. the person’s account of their family and other background,
2. their health and personal circumstances,
3. the type of decisions that are likely to be needed in relation to their welfare in the future,
4. what the person’s wishes are in these respects,
5. why the prospective guardian or attorney has been selected, and
6. whether there has been any consideration of that person’s skills to undertake the personal decisions required of them.[16]
It is also suggested that if a lawyer is unclear whether their client has the capacity to appoint an enduring guardian they should seek the opinion of a health professional qualified to assess mental capacity and advise them of the matters that their client must be capable of understanding before they can make an appointment. They should not assist their client to complete the appointment process until they have received a report from the capacity assessor advising that their client has capacity.[17]
When health care professionals are asked to perform such assessments, as with other capacity assessments, it is important to place the specific assessment of capacity in the context of an estimation of the person’s overall mental functioning and health status. A global assessment of the person’s mental state and cognitive function should be made as well as an assessment of the specific executive and functions of judgment, reasoning and planning which are relevant to decision-making. Similar to the type of enquiry recommended for lawyers, the health care professional should consider the following:
1. does the person understand that if disability renders them unable to manage their affairs and make decisions for themselves, their appointed guardian may make decisions on their behalf about accommodation, health care, personal services, and medical treatment?
2. do they understand that the guardian can decide the actual place in which they are to live and the actual health care and personal services they are to receive?
Additionally, an essential requirement when assessing capacity to make the kinds of enduring document being considered in this chapter, is to ensure whether the person is doing so freely and voluntarily and is not being unduly influenced or “schooled” to make an appointment. [18] As has been noted elsewhere, dementia may affect a person’s appraisal of others.[19] Therefore, when undertaking assessments of people who wish to appoint an enduring guardian, it is important to undertake the interview in private. Further, the rationale for appointing a particular person as enduring guardian should be assessed. In doing so, the health care professional might ascertain the following:
1. has the person appointed any enduring guardians previously?
2. if so, how frequently have there been changes (i.e. revocations and new appointments)?
3. is this appointment in keeping with previous appointments (e.g. has someone else been consistently appointed as enduring guardian in the past)?
4. what is the history of the relationship between the person and the appointee and has there been any radical change in that relationship coinciding with the onset or course of dementia?
5. why has the person been selected for appointment as enduring guardian?
When assessing a person’s capacity to appoint an attorney under an enduring power of attorney in Queensland and the Australian Capital Territory, the clinician must put their mind to whether the person is appointing an attorney for personal or financial matters or both. Consequently, the lawyer drafting the power of attorney document should advise the clinician of the terms of the draft document. The clinician’s assessment must be directed to the type of appointment being made, but made in terms of the Queensland (and Australian Capital Territory) statutory criteria set out above at 9. 3. 1.
If the person is appointing an attorney for personal matters, the principles outlined above in 9.3.3 for assessment of capacity to appoint an enduring guardian with regards to global assessment, assessment of executive function, ascertainment of previous patterns of trust and relationships and ensuring that the person isn’t being schooled apply here equally.
If the person is appointing an attorney for financial matters, the same principles of assessment apply, but additionally the person needs to be assessed for their understanding of issues specific to appointing a financial decision-maker. Using the tests outlined above, laid down by Dixon CJ, Kitto and Taylor JJ of the High Court of Australia[20] and Young J of the Supreme Court of New South Wales[21], the person needs to understand the nature and effect of the document and specifically, they need to understand both that they are authorising someone to look after their financial affairs as well as understanding the sort of things the attorney can do without reference to them, such as sell their house or write cheques on their behalf.
A person has to be an adult, 18 years or older, to be appointed as an enduring guardian. It is wise to appoint one or more members of one’s family or one or more long term friends who can be trusted to carry out their functions as enduring guardians in the best interests of the person appointing them and to follow any instructions or directions given to the guardians in the document appointing them.
Certain people cannot be appointed as enduring guardians. In South Australia and Tasmania those prohibited are those who are, in either a professional or an administrative capacity, directly or indirectly responsible for or involved in the medical care or treatment of the appointor. Whether only medical care and medical treatment are covered or the prohibition on appointment applies to the owners and staff of aged care facilities or other service provider agencies is an open question. However, the appointment of an enduring guardian lapses if the enduring guardian joins a prohibited category.[22]
In Victoria the prohibition applies to those who are, either directly or indirectly, responsible for or involved in the care, treatment or accommodation of the appointor.[23] In New South Wales the prohibition extends even further and to include any of those already mentioned together with anyone involved in the provision of support services to the appointor and anyone who is the spouse, parent, child, brother or sister of any of those already mentioned.[24] However, if a person who is an enduring guardian enters a prohibited category in relation to a person they are the enduring guardian of their appointment does not lapse.[25]
The only requirements in Western Australia are that the enduring guardian is 18 years or older and has full legal capacity.[26]
In Queensland the equivalent of enduring guardians are those attorneys appointed under enduring powers of attorney in which they are given powers for personal and health care matters. The Adult Guardian may be appointed. So may the Public Trustee or a trustee company. Private persons must be at least 18 years and they cannot be a paid carer, health provider or service provider for any residential service where the maker of the appointment is resident.[27]
In the Australian Capital Territory, an enduring guardian, called an attorney for a personal care or health care matter, must be an adult and a person. Neither a corporation nor the Public Advocate may be appointed.[28]
The legislation of each State and the Australian Capital Territory sets out procedures for a capable adult to appoint an enduring guardian or make an enduring power of attorney for personal matters.[29] It is not intended to discuss those procedures here as helpful information is available on the websites of guardianship tribunal or public guardians or advocates of State and the Australian Capital Territory. Nevertheless, it should be noted that in Tasmania an appointment of an enduring guardian is not effective until it is registered with the Tasmanian Guardianship and Administration Board.[30]
In all the States and the Australian Capital Territory and enduring guardian or attorney for personal matters may carry out their powers or functions at any time that the person who has appointed them does not have the capacity to make personal decisions for themselves.[31] Appointors may lack capacity for a period and regain it subsequently or they may lose their capacity permanently. In either case their enduring guardian or attorney for personal matters may carry out their powers or functions. In Queensland and Victoria the legislation makes it clear that the powers or functions given are exercisable only in relation to those personal matters for which the appointor has lost capacity.[32]
Sometimes it will not be clear whether a person has lost capacity so that the enduring guardian or attorney for personal matters can commence to act under their appointment. At other times there will be controversy about this matter between family members or between family members and service providers. In these situations in New South Wales, the enduring guardian may apply to the Guardianship Tribunal for an order declaring that the appointment is in operation. Before the Tribunal may make such an order, it must be satisfied that the appointor did indeed appoint the person as their enduring guardian and now the appointor is a person who, on the evidence placed before it, is in need of a guardian.[33] On that question, the certificate of a doctor to the effect that the appointor was, on a particular day or during a particular period, totally or partially incapable of managing their person because of a disability is evidence that the appointor was a person in need of a guardian.[34]
The Tribunal may also revoke such a declaratory order either by deciding to do so itself (on its own motion) or on the application of a person the Tribunal considers has a genuine concern for the welfare of the appointor.[35]
In Queensland, QCAT may make a declaration about the capacity of the maker of an enduring power of attorney for personal matters in relation to one or more personal matters. If the maker is found to have impaired capacity for matters covered by the enduring power of attorney, then the declaration will show that that power of attorney is in effect in relation to those matters.[36]
The South Australian Guardianship Board does not have power to make such declarations. The Tasmanian Guardianship and Administration Board however can, through the application of the enduring guardian, give advice or direction on any matter relating to the scope of the enduring guardian’s appointment or the exercise of any powers given them in the appointment.[37] If that provision is seen as not allowing for advice that the enduring guardian’s appointment is or is not in effect, a second provision would almost certainly provide The Boar with the necessary power. This is because the Tasmanian Act allows the Board, of its own motion, give advice to the enduring guardian ‘in respect of any matter’.[38] While the provision in the Guardianship and Administration Act 1986 (Vic) is not in the same terms as the Tasmanian provision, it is suggested that it is capable of being used as a means of obtaining advice from VCAT that an appointment of enduring guardianship is in effect.[39]
In Western Australia, WASAT may make a declaration that an appointor is unable to make reasonable judgments about matters relating to their person.[40] Such a declaration effectively means that the enduring guardian can exercise the functions given them under their appointment.[41] The Tribunal may revoke such a declaration thus stopping the operation of the appointment of enduring guardianship.[42]
In the Australian Capital Territory ACAT may make a declaration as to whether or not a person who has made an enduring power of attorney for personal or health care matters has decision-making capacity or has impaired decision-making capacity. ACAT may also make a declaration about the effect of an enduring power of attorney.[43] It is suggested that these provisions allow ACAT to make it clear, after the appropriate hearing, that an enduring power of attorney is in operation.
In South Australia an enduring guardian has all the powers in law and equity of an enduring guardian unless named powers are excluded in the document appointing them. Their powers are subject to any conditions or limitations set out in that document.[44] In addition, the powers conferred by the document appointing them must be exercised in accordance with any lawful directions contained in that document, unless the Guardianship Board approves otherwise.[45] An appointor may not direct an enduring guardian to do anything unlawful and an enduring guardian should disregard any such direction.
In Tasmania, like in South Australia, enduring guardians are full or plenary guardians with all the powers and duties a guardian would have if they were a parent and the appointor was their child.[46]
In Victoria, unless the document appointing an enduring guardian limits the powers they may exercise to those set out in it, the enduring guardian will be a plenary guardian with all the powers and duties a guardian would have if they were a parent and the appointor was their child.[47] In Western Australia the provisions are differently stated but have the same effect. An enduring guardian will be a plenary guardian unless their functions are limited to specific functions set out in the document appointing them.[48]
In Queensland and the Australian Capital Territory, as the legislation refers to the enduring attorney appointed for one or more matters, it is wise to list the personal matters in relation to which the attorney for personal matters is to be appointed.[49]
In New South Wales, an enduring guardian will have the following functions unless the document appointing them excludes any of those functions:
1. deciding the place (such as a specific nursing home, or the appointor’s own home) in which the appointor is to live,
2. deciding the health care that the appointor is to receive,
3. deciding the other kinds of personal services that the appointor is to receive, and
4. giving consent to the carrying out of medical or dental treatment on the appointor.[50]
In addition, the appointor could include any other function of a guardian in the appointment document.[51]
In New South Wales and Tasmania there are similar provisions to South Australia in relation to conditions, limitations and lawful directions.[52] The Queensland legislation allows the appointer to provide ‘terms or information about exercising the power’.[53] In Victoria appointors may require their enduring guardians to take into account the wishes they include in their appointment document.[54] In Western Australia the appointor may limit the circumstances in which the enduring guardian may act.[55] The Power of Attorney Act 2006 (ACT) does not address these matters.
In 2009 McDougall J of the Supreme Court of New South Wales held that a direction to a guardian in an appointment of enduring guardianship to refuse certain specified medical treatment was a valid “Advance Care Directive” and that the person’s treating doctors were justified in complying with the directive. McDougall J made a declaration to that effect.[56] It is suggested that this decision applies to directions given in appointments of enduring guardianship or their equivalents in the other States and in the Australian Capital Territory, unless their legislation specifically, or by necessary implication, precludes the giving of such directions.[57]
In Queensland enduring guardians (attorneys for personal matters) are required by the Powers of Attorney Act 1998 (Qld) to exercise the power given them in the document appointing them according to its terms and honestly and with reasonable diligence to protect the interests of the person who has appointed them as their attorney for personal matters.[58] Such attorneys may also sign any document, as attorney, where it is necessary or convenient to do so in order exercise a power given to them in the power of attorney appointing them.[59] They must take the right to confidentiality of the maker of the power of attorney into account and if they obtain any confidential information about the maker of the power of attorney, they are obliged to keep that information confidential and not to disclose it except as provided for under the Powers of Attorney Act 1998 (Qld).[60] If QCAT appoints a guardian for the person who appointed them, the attorney will be able to exercise their powers only to the extent authorised by the QCAT.[61]
Attorneys for personal matters are required to comply with the general principles set out in Schedule 1 of the Powers of Attorney Act 1998 (Qld). If they are appointed for health care matters, they must also comply with the health care principle also set out in that Schedule. The same approach applies in the Australian Capital Territory. Those appointed as enduring attorneys for personal care and health care matters are bound by similar general principles.[62]
While attorneys for personal matters are bound by those principles in Queensland and the Australian Capital Territory, it is suggested that enduring guardians in other States should use those principles, with the exception of the substituted judgment principle, unless required to apply it under their legislation, to guide how they carry out their powers and functions. These principles are:
1. Powers of attorney for personal matters should be exercised in a way that is appropriate to the characteristics and needs of the maker of the power of attorney.[63]
2. While powers of attorney for personal matters are exercisable during every period the maker of the power of attorney has impaired capacity for the matter or matters covered by it, the starting point is that the maker is presumed to have capacity to deal with the matter or matters involved.[64]
The principles require that attorneys for personal matters recognise the following matters and take them into account when exercising their powers under the power of attorney:
1. The maker of the power of attorney’s right to participate, to the greatest extent practicable, in decisions affecting their life, including the development of policies, programs and services for them.[65]
2. The importance of preserving, to the greatest extent practicable, the maker of the power of attorney’s right to make his or her own decisions.[66]
3. All adults have the same basic human rights regardless of their capacity. It is important to empower them to exercise those rights.[67]
4. The maker of the power of attorney’s right to respect for their human worth and dignity as an individual.[68]
5. The maker of the power of attorney’s right to be a valued member of society together with the importance of encouraging and supporting them to perform social roles valued in society.[69]
6. The importance of encouraging and supporting the maker of the power of attorney to live a life in the general community and to take part in activities enjoyed by the general community.[70]
7. The importance of encouraging and supporting the maker of the power of attorney to achieve their maximum physical, social, emotional and intellectual potential, and to become as self-reliant as practicable.[71]
8. The importance of maintaining the maker of the power of attorney’s existing supportive relationships.[72]
9. The importance of maintaining the maker of the power of attorney’s cultural and linguistic environment, and set of values, including any religious beliefs.[73] This is particularly the case for Aborigines and Torres Strait Islanders.[74]
As already noted, in the Australian Capital Territory most of these principles are set out, and in similar terms, in Schedule 1 of the Powers of Attorney Act 2006 (ACT).[75] There is also a requirement that the enduring attorney for personal care or health care matters must recognise and take into account the wish and need of the maker of the power of attorney to have access to the family members and relatives and they to him or her. The enduring attorney must also take into account any expressed wish of the maker of the power of attorney to involve family members and relatives in decisions affecting the maker’s life and health.[76]
Also in Queensland, if the attorney for personal matters has health matters to deal with they must deal with those matters only when it is necessary and appropriate to maintain or promote the maker of the power of attorney’s health or wellbeing and is in the way that is least restrictive of those rights. In all the circumstances the exercise of power must be in the best interests of the maker of the power of attorney.[77] When deciding whether the exercise of a power is appropriate, the attorney for personal matters must:
1. to the greatest extent practicable seek the adult’s views and wishes and take them into account, and
2. take into account the information given by the maker of the power of attorney’s health provider.[78]
The Powers of Attorney Act 2006 (ACT) is to the same effect.[79]
In Queensland, the Powers of Attorney Act 1998 states that the principle of substituted judgment must be used in such a way that if it is reasonably practicable to work out what the maker of the power of attorney’s views and wishes would be, the attorney for personal matters must take into account what they consider those views and wishes were.[80] Those views and wishes are to be worked out from the maker’s previous actions. They may have been expressed orally, in writing, by conduct or in some other way.[81] Nevertheless, despite the fact that the words “the principle of substituted judgment must be used”, the attorney for personal matters must exercise their powers and functions in a way that is consistent with the proper care and protection of the maker of the power of attorney.[82] Consequently, it would appear that attorneys for personal matters are not required to apply the principle of substituted judgment in the strict sense and that the proper care and protection of the maker of the power of attorney is the paramount consideration.
Elsewhere in Australia where enduring guardians or their equivalents may be appointed, the principle of substituted judgment does not have to be applied. Nevertheless, in South Australia when they are making any decision under their appointment, enduring guardians must, as the paramount of their considerations, give consideration to what would, in their opinion, be the wishes of the person they are the enduring guardian for in relation to the particular matter. This obligation applies only if there is reasonably ascertainable evidence on which to base such an opinion. However, they are also required to seek the present wishes of the person they are the enduring guardian for about the matter, unless it is not possible or reasonably practicable to do so, and must give consideration to those wishes.[83]
Similarly in Victoria, enduring guardians are not required to apply substituted judgment; however they must exercise their powers so as to give effect to the wishes of the person they are enduring guardian for wherever possible. In exercising their powers they must promote that person’s best interests but also adopt means that are the least restrictive of the person's freedom of decision and action as is possible in the circumstances.[84]
The Tasmanian provisions are the same, and have the same effect as the Victorian ones.[85] In a 2006 case the Tasmanian Guardianship and Administration Board revoked an appointment of enduring guardianship because it was not satisfied that the enduring guardian was able to balance the responsibilities of a guardian as set out the Guardianship and Administration Act 1995 (Tas).[86] This was because the enduring guardian gave far greater weight to the appointor’s wishes than to her best interests. The Board noted that the primary responsibility of an enduring guardian was to act in the best interests of the appointor.[87]
Enduring guardians are not required to exercise substituted judgment in New South Wales, but they are required to observe the general principles of the Guardianship Act 1987 (NSW) when exercising their functions. These principles are similar to those set out above and require the enduring guardian to take into account the views of the person who appointed them.[88]
In Western Australia, as in New South Wales, enduring guardians are not required to exercise substituted judgment but they must act according to their opinion of the best interests of the person they are enduring guardian for. They act in this way if they act in the same way as required of a guardian appointed by WASAT. That matter is dealt with in Chapter 9. 3. 3. In particular, enduring guardians are required to consult with and to take into account the views of the person who appointed them.[89]
In the Australian Capital Territory, attorneys for personal care matters must comply, to the maximum extent possible, with the general principles set out in the Powers of Attorney Act 2006 (ACT).[90] These principles are both explicit and detailed about the right of a maker of an enduring power of attorney for personal care matters to take part in decisions affecting their life to the greatest extent practicable and that it must be preserved. They must not be treated as unable to take part in making a decision only because the individual makes unwise decisions.
The maker’s views and wishes may be expressed orally, in writing or in another way, including, for example, by conduct. If they cannot express their wishes or needs, the attorney must try to work out, as far as possible, from the maker’s past actions, what their wishes and needs would be if they could express them. The attorney must then and take those wishes and needs into account.[91]
Despite this requirement, the attorney exercising a function must do so in a way that is consistent with the maker’s proper care and protection.[92]
To assist enduring guardians and their equivalents deal with difficult matters in carrying out their roles, the public guardians and advocates can and do give advice. Also, in all the States and the Australian Capital Territory, the guardianship tribunal can give advice and directions to assist enduring guardians. In New South Wales the role of the Guardianship Tribunal is limited to giving directions on application by the enduring guardian.[93] In Queensland both QCAT and the Supreme Court may give direction or advice or make recommendations about the interpretation of the terms of or other issues involving an enduring power of attorney or the exercise of the attorney’s powers.[94] In South Australia, Tasmania and Victoria an enduring guardian may apply to their State’s guardianship tribunal for advice or direction as to the scope or the exercise of their powers.[95] In Western Australia they may apply to WASAT for directions as to the scope or the exercise of their powers.[96] In the Australian Capital Territory the role of ACAT is limited to giving a direction to an attorney to do or not do an act.[97]
In each State, except Western Australia, and in the Australian Capital Territory, there are provisions for appointors and makers of enduring powers of attorney to revoke appointments of enduring guardians. These will only be footnoted here.[98] Nevertheless, in Western Australia, appointors who still have the capacity to do so may revoke their appointments of enduring guardians.[99]
In New South Wales, South Australia, Tasmania, Victoria and Western Australia, enduring guardians and in Queensland and the Australian Capital Territory attorneys, may resign their office. There is a procedure for them to follow to do this.[100] In New South Wales enduring guardians, and in Queensland and the Australian Capital Territory attorneys, may resign their office directly to the appointor or maker by giving them written notice. However, if the appointor or maker has lost capacity the enduring guardian or attorney may resign only with the leave of the guardianship tribunal in that State or Territory.[101]
In New South Wales the effect of making a guardianship order is to suspend any appointment of an enduring guardian made by the person under guardianship for the duration of the order in relation to them.[102] If the person under guardianship purports to appoint an enduring guardian, that appointment has no effect at any time.[103]
In Queensland, if QCAT makes a guardianship order in relation to a person who has an attorney for personal matters, QCAT may also authorise the attorney to exercise the powers in the power of attorney that it designates.[104] If QCAT does not authorise the attorney to exercise power, then the power of attorney is effectively suspended during the currency of the guardianship order.
The Tasmanian Guardianship and Administration Board and WASAT in Western Australia may either amend or revoke an appointment of an enduring guardian.[105] Consequently if either tribunal makes a guardianship order in relation to a person who has appointed an enduring guardian, it may, on application, either revoke the appointment or amend it so that it can operate in conjunction with the guardianship order. The matters each tribunal has to consider before it may revoke or amend an appointment of enduring guardian are set out at 9. 5. 4.
In the Australian Capital Territory, ACAT may revoke powers of attorney for personal care in whole or in part.[106] It is assumed that where the Tribunal makes a guardianship order but revokes only part of such a power of attorney then the Tribunal intends the unrevoked part of the power of attorney to continue to operate concurrently with the guardianship order it has made. There are specific provisions about guardianship orders and enduring powers of attorney in relation to health care.[107]
In South Australia and Victoria, the relevant guardianship tribunal may only revoke an appointment of an enduring guardian. While this has to be done as a result of an application, such an application could be dealt with at the hearing at which the tribunal appointed a guardian. Revoking the appointment of the enduring guardian clears the way for the tribunal appointed guardian to be given the functions they would need to be an effective guardian for the now incapable person. The matters each tribunal has to apply before it may revoke the enduring guardian’s appointment are set out below in 9. 5. 4.
In each State and in the Australian Capital Territory the tribunal which has the jurisdiction to deal with applications for guardianship, may also review the appointments of enduring guardians.
In New South Wales the Guardianship Tribunal may, on its own motion or must on the request of any person who, in the Tribunal’s opinion, has a genuine concern for the welfare of the appointor, review the appointment of the enduring guardian.[108] After conducting the review, the Tribunal may:
1. revoke the appointment,
2. confirm it, or
3. confirm it but vary the functions of the enduring guardian.[109]
However, the Tribunal must not revoke the enduring guardian’s appointment unless the enduring guardian requests this or the Tribunal is satisfied that it is in the best interests of the appointor that the appointment be revoked.[110] If the Tribunal decides to revoke the appointment of the enduring guardian, it may proceed as if it had an application for a guardianship or administration order, or both, before it and make either or both orders.[111]
In addition, the Guardianship Tribunal has an added role. It may confirm the appointment even if:
1. it discovers that the document appointing the enduring guardian was not executed in accordance with the requirements of the Guardianship Act 1987 (NSW), or
2. the person purporting to make the appointment announced their intention to do so but became incapacitated before a document making the appointment could be executed in accordance with the requirements of the Act and the Tribunal was satisfied that the confirmation of the appointment reflected the appointment that the person intended to make at the time it was purportedly made.[112]
This last power of the Tribunal is aimed at formalising an intended appointment of an enduring guardian where the appointor’s intentions as to who they intended to appoint and what functions they were to be given were clear from the draft but not formalised in document of appointment or, possibly, were clear from the instructions given to the solicitor or other person drafting the appointment document.
In Western Australia, WASAT, on the application of any person who, in its opinion, has a proper interest in the matter, has the power to revoke an enduring power of guardianship, revoke or vary any of its terms or revoke the appointment of one or more of the enduring guardians.[113] When dealing with an application to revoke an enduring power of guardianship or revoke or vary any of its terms, the Tribunal is not required to apply any specific statutory criteria, but its primary concern must be the best interests of the appointor and it must, as far as possible seek to ascertain the views and wishes of that person.[114] However, when dealing with an application to revoke the appointment of one or more of the enduring guardians, the Tribunal should revoke the appointment of the enduring guardian or of those enduring guardians who:
1. wish to be discharged, or
2. have been guilty of such neglect or misconduct or of such default as, in the opinion of the Tribunal, renders them unfit to continue as an enduring guardian; or
3. appear to the Tribunal to be incapable, by reason of mental or physical incapacity, of carrying out their duties as an enduring guardian.[115]
In Tasmania, the Guardianship and Administration Board may, on an application by the appointor, the enduring guardian, the administrator of the appointor's estate, the Public Guardian; or any other person who, the Board is satisfied, has a proper interest in the matter, and after a hearing, revoke or amend an appointment of an enduring guardian, but only if:
1. the enduring guardian seeks revocation of their appointment, or
2. the Board is satisfied that the enduring guardian;
a. is not willing or able to act in that capacity, or
b. has not acted in the best interests of the appointor or has acted in an incompetent or negligent manner or contrary to the provisions of the Guardianship and Administration Act 1995 (Tas).[116]
In South Australia, the same people as in Tasmania together with a relative or medical agent of the appointor may apply to the Guardianship Board to revoke the appointment of an enduring guardian. The South Australian Board applies the same criteria as the Tasmanian Board when making its decision except that it may revoke an appointment if it is satisfied that the enduring guardian acted contrary to the principles stated in, rather than more broadly, the provisions of, the Guardianship and Administration Act 1993 (SA). Also, as already noted, its jurisdiction is limited to revoking the appointment or dismissing the application. It cannot vary the powers given to the enduring guardian.[117]
In Victoria, VCAT’s powers are limited, like those of the South Australian Guardianship Board, to revoking the appointment of the enduring guardian. Application may be made to it by:
1. the enduring guardian,
2. the administrator of the appointor's estate,
3. the Public Advocate; or
4. any other person VCAT is satisfied has an interest in the person of the appointor or their estate.
VCAT may revoke the appointment if it is satisfied that the enduring guardian is either not able or not willing to act as enduring guardian or if, as enduring guardian, they have acted in an incompetent or negligent manner.[118]
In Queensland both QCAT and the Supreme Court have the same powers in relation to enduring powers of attorney for personal matters.[119] Any of the following may apply to QCAT or the Court for an order in relation to such powers of attorney:
1. the person who made the power of attorney,
2. a member of their family,[120]
3. an attorney appointed by the maker of the enduring power of attorney for personal matters,[121]
4. the Adult Guardian or Public Trustee,
5. the maker’s health provider, or
6. an interested person.[122]
In addition, any person QCAT or the Court joins as a party or considers is an interested person may participate in the proceeding.[123]
QCAT or the Court has power to decide whether an enduring power of attorney for personal matters is valid or not and may declare such a power of attorney invalid if it is satisfied that:
1. the maker did not have the capacity necessary to make the power of attorney,
2. the power of attorney did not comply with the other requirements of the Powers of Attorney Act 1998 (Qld), or
3. the power of attorney was invalid for another reason, for example, the maker was induced to make it by dishonesty or undue influence.[124]
However, if QCAT or the Court declares the power of attorney to be invalid, it may, at the same time, appoint one or more attorneys for the maker.[125] This means that QCAT or the Court can appoint attorneys to operate under orders made by those bodies rather than under the invalid power of attorney.
If QCAT or the Court declares an enduring power of attorney to be invalid, it is void and of no effect from the time it was made.[126] In a 2005 case in which it was confronted with a situation in which a person under guardianship and administration made an enduring power of attorney for personal matters, then Queensland Guardianship and Administration Tribunal decided to use its power to initiate its own application in relation to a declaration of capacity, and, after considering the evidence, found that the person did not have the capacity to make the enduring power of attorney and then went on to declare the power of attorney invalid.[127]
After conducting a hearing to review the enduring power of attorney, QCAT or the Court may:
1. remove an attorney and appoint a new attorney to replace them,
2. remove a power from an attorney and give the removed power to another attorney or to a new attorney,
3. change the terms of an enduring power of attorney, or
4. revoke all or part of the enduring power of attorney.[128]
Like their counterparts elsewhere in Australia, QCAT and the Court may revoke the enduring power of attorney for personal matters. In addition, they have the power to vary the terms of an enduring power of attorney for personal matters. However, their power to do this may be exercised only where they consider that the maker’s circumstances or other circumstances have changed to the extent that one or more terms of the enduring power of attorney are inappropriate.[129]
There is another way in which QCAT and the Court may reduce the scope of an enduring power of attorney for personal matters. This is by making a guardianship order which gives a guardian some of the powers the attorney had under an enduring power of attorney made by the person now under guardianship or by extending the powers of the guardian further after a review of the guardianship order. This was done by QCAT’s predecessor tribunal in a 2006 case.[130]
In the Australian Capital Territory, ACAT has the main role in relation to the removal and replacement of attorneys under enduring powers of attorney for personal care and for dealing with applications to revoke such powers of attorney in whole or in part. ACAT may do this on an application from an interested person or from someone else it has given leave to apply, or on its own initiative.[131]
ACAT may exercise its jurisdiction only if the maker of the power of attorney has impaired decision-making capacity. If this is proved to it, ACAT may revoke the power of attorney or part of it. ACAT may also refer the matter to the Supreme Court.[132] If it revokes the power of attorney, ACAT may appoint a guardian or a manager of the estate of the maker of the power of attorney.[133]
Also, instead of revoking the enduring power of attorney, ACAT may remove an attorney, but only if it is satisfied that it is in the interests of the maker of the power of attorney to do so.[134]
[1] Guardianship and Administration Act 1993 (SA) ss 25-27, Guardianship Act 1987 (NSW) ss 5-6O, Guardianship and Administration Act 1995 (Tas) ss 32-35, Guardianship and Administration Act 1986 (Vic) ss 35A-35E and Guardianship and Administration Act 1990 (WA) ss110A-110O.
[2] Powers of Attorney Act 1998 (Qld) Chapters 3 and 5 and Schedule 1 and 2, Part 2 in particular and Powers of Attorney Act 2006 (ACT) generally.
[3] Guardianship and Administration Act 1993 (SA) s 25(1), Guardianship Act 1987 (NSW) s 6, Guardianship and Administration Act 1995 (Tas) s 32(1), Guardianship and Administration Act 1986 (Vic) s 35A(1).
[4] Guardianship and Administration Act 1990 (WA) ss110B.
[5] Powers of Attorney Act 1998 (Qld) Schedule 1 s 1.
[7] Powers of Attorney Act 2006 (ACT) s 18.
[10] Gibbons v Wright [1954] HCA 17 [7][1954] HCA 17; , (1954) 91 CLR 423, 438.
[11] Ranclaud v Cabban [1988] ANZ ConvR 134, 136, (1988) NSW Conv R 55-385, BC8802222,12.
[12] Re K [1988] 1 Ch 310. In 2000 the Court of Appeal described this list as a “sound indication of what must be understood if a power is to be valid”. In re W [2001] Ch 609 [19] and [20].
[13] Smith v Public Trustee of Queensland [1995] ANZ ConvR 415,418.
[14] Collier, B, Coyne, C, Sullivan, K, Mental Capacity, Sydney, The Federation Press, 2005, 44, note that American authority supports the proposition that capacity relates to the maker’s ability to accomplish the transactions they empower the enduring guardian or enduring attorney to carry out rather than the maker’s understanding of what they are handing over to the the enduring guardian or enduring attorney.
[15] Powers of Attorney Act 1998 (Qld) s 41 and Powers of Attorney Act 2006 (ACT) s 17.
[16] Collier, B and others op cit (footnote 14), 50-51.
[17] For assistance see, “Client Capacity Guidelines: Civil and Family Law Matters” (2003) Law Society Journal 41(8) 50.
[18] Collier, B and others, op cit (footnote 14), 52.
[19] Peisah C. Brodaty H, Quadrio C, “Family conflict in dementia: prodigal sons & black sheep” International Journal of Geriatric Psychiatry (2006) 21(5):485-492.
[20] Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423, 438; [1954] HCA 17 [7].
[21] Ranclaud v Cabban [1988] ANZ ConvR 134, 136, (1988) NSW Conv R 55-385, BC8802222,12.
[22] Guardianship and Administration Act 1993 (SA) s 25(4), Guardianship and Administration Act 1995 (Tas) s 32(4).
[23] Guardianship and Administration Act 1986 (Vic) s 35A(4) and (5).
[24] Guardianship Act 1987 (NSW) s 6B(2).
[26] Guardianship and Administration Act 1990 (WA) s 110D.
[27] Powers of Attorney Act 1998 (Qld) s 29.
[28] Powers of Attorney Act 1995 (ACT) ss 13(3) and 14(2) and (3).
[29] Guardianship Act 1987 (NSW) s 6C, Powers of Attorney Act 1998 (Qld) ss 29-31 and 44, Guardianship and Administration Act 1993 (SA) s 25, Guardianship and Administration Act 1995 (Tas) s 32, Guardianship and Administration Act 1986 (Vic) s 35A, Guardianship and Administration Act 1990 (WA) s 110E (the enduring power of guardianship form is found in Guardianship and Administration Regulations 2005 (WA) Sch 1), and Powers of Attorney Act 2006 (ACT) ss 19-24.
[30] Guardianship and Administration Act 1995 (Tas) s 32
[31] Guardianship Act 1987 (NSW) s 6A(1), Powers of Attorney Act 1998 (Qld) s 33(4), Guardianship and Administration Act 1993 (SA) Schedule, Guardianship and Administration Act 1995 (Tas) s 32(5) and Schedule 3 Form 1), Guardianship and Administration Act 1986 (Vic) s 35B(1), Guardianship and Administration Act 1990 (WA) s 110F and Powers of Attorney Act 2006 (ACT) 32(2).
[32] Powers of Attorney Act 1998 (Qld) s 33(4) and Guardianship and Administration Act 1987 (Vic) s 35B(1).
[33] Guardianship Act 1987 (NSW) s 6M(1) and (2).
[36] Guardianship and Administration Act 2000 (Qld) s 146.
[37] Guardianship and Administration Act 1995 (Tas) s 35(1).
[39] Guardianship and Administration Act 1987 (Vic) s 35E
[40] Guardianship and Administration Act 1990 (WA) s 110L(1).
[41] Ibid. s 110L(2).
[42] Ibid. s 110L(3).
[43] Guardianship and Management of Property Act 1991 (ACT) ss 62 (2)(d) and 65.
[44] Guardianship and Administration Act 1993 (SA) s 25(5). The enduring guardian’s powers are also limited by a special provision that operates where the person who appointed them has refused medical or dental treatment but has also appointed a medical agent who is available and willing to act in the matter. The medical agent is authorised to make those decisions. See, Consent to Medical Treatment and Palliative Care Act 1995 (SA).
[45] Guardianship and Administration Act 1993 (SA) s 25(6).
[46] Guardianship and Administration Act 1995 (Tas) ss 32(5) and 25(1).
[47] Guardianship and Administration Act 1986 (Vic) ss 35B and 24.
[48] Guardianship and Administration Act 1990 (WA) s 110G(1) and (2).
[49] Powers of Attorney Act 1998 (Qld) 32(1)(a) and Powers of Attorney Act 2006 (ACT) 13(2).
[50] Guardianship Act 1987 (NSW) s 6E(1)(a)-(d).
[51] Ibid. s 6E(1)(e).
[52] Ibid. s 6E(2) and (3), Guardianship and Administration Act 1995 (Tas) s 32(5) and (6)
[53] Powers of Attorney Act 1998 (Qld) 32(1)(b).
[54] Guardianship and Administration Act 1987 (Vic) Schedule 4, Form 1.
[55] Guardianship and Administration Act 1990 (WA) s 110G(3).
[56] Hunter and New England Area Health Service v A [2009] NSWSC 761. This case is discussed further in Chapter 13. 5, 14. 3. 1. 11 and 15.6.
[57] Powers of Attorney Act 1998 (Qld) s 36 may limit the kind of advance directive concerning the refusal of treatment that may be given effect to in Queensland. See also 9. 4. 6.
[58] Powers of Attorney Act 1998 (Qld) ss 66 and 67.
[60] Ibid. s 74 and Schedule 1 item 11.
[62] Powers of Attorney Act 2006 (ACT) Schedule 1.
[63] Powers of Attorney Act 1998 (Qld) Schedule 1 item 11.
[64] Ibid. s 33(4) and Schedule 1 item 1.
[65] Ibid. item 7(1).
[66] Ibid. item 7(2).
[67] Ibid. item 2.
[68] Ibid. item 3.
[69] Ibid. item 4.
[70] Ibid. item 5.
[71] Ibid. item 6.
[72] Ibid. item 8.
[73] Ibid. item 9.
[74] Ibid. item 9 and also Acts Interpretation Act 1954 (Qld) s 36.
[75] In the ACT the heath care principle is set out in Powers of Attorney Act 2006 (ACT) Schedule 1.11.
[76] Ibid. Schedule 1.1.
[77] Powers of Attorney Act 1998 (Qld) Schedule 1 item 12(1).
[78] Ibid. s 81 and Schedule 1 item 12(2).
[79] Powers of Attorney Act 2006 (ACT) Schedule 1.11.
[80] Powers of Attorney Act 1998 (Qld) Schedule 1 item 7(4).
[81] Ibid. item 7(6).
[82] Ibid. item 7(5).
[83] Guardianship and Administration Act 1993 (SA) s 5(a)and(b).
[84] Guardianship and Administration Act 1986 (Vic) s 4(2).
[85] Guardianship and Administration Act 1995 (Tas) s 6.
[86] MKC (Review EG) 14-7-06 [14]. Guardianship and Administration Act 1995 (Tas) s 6 and 27.
[87] Ibid.
[88] Guardianship Act 1987 (NSW) s 4. S 4(d) in particular.
[89] Guardianship and Administration Act 1990 (WA) s (2)(e).
[90] Powers of Attorney Act 2006 (ACT) Schedule 1.
[93] Guardianship Act 1987 (NSW) ss 26-28.
[94] Powers of Attorney Act 1998 (Qld) s 118.
[95] Guardianship and Administration Act 1993 (SA); s 74 and Guardianship and Administration Act 1995 (Tas) s 35 and Guardianship and Administration Act 1986 (Vic) s 35E. For an example of advice and directions being requested from and then given be the Tasmanian Guardianship and Administration Board see, TN (Advice and Direction to EG) 26-8-05.
[96] Guardianship and Administration Act 1990 (WA) s 110M.
[97] Guardianship and Management of Property Act 1991 (ACT) s 62(2)(a).
[98] Guardianship Act 1987 (NSW) ss 6H-6HB, Powers of Attorney Act 1998 (Qld) ss 46-59A, Guardianship and Administration Act 1993 (SA) s 26, Guardianship and Administration Act 1995 (Tas) s 34, Guardianship and Administration Act 1986 (Vic) s 35C and Powers of Attorney Act 2006 (ACT) s 55.
[99] While the Guardianship and Administration Act 1990 (WA) does not provide for the revocation of an appointment of enduring guardianship by the appointor, the Interpretation Act 1984 (WA) s 52(1) provides that, where a person may appoint another to an office – here the office of enduring guardian – they may also remove that person from that office.
[100] Guardianship Act 1987 (NSW) s 6HB, Guardianship and Administration Act 1993 (SA) s 26, Guardianship and Administration Act 1995 (Tas) s 34, Guardianship and Administration Act 1986 (Vic) s 35D and Guardianship and Administration Act 1990 (WA) s 110N, Powers of Attorney Act 1998 (Qld) s 55 and Powers of Attorney Act 2006 (ACT) 53.
[101] Guardianship Act 1987 (NSW) s 6HB(1)(b), Powers of Attorney Act 1998 (Qld) ss 55, 72 and 82 and Powers of Attorney Act 2006 (ACT) 53. In both New South Wales and Queensland, the Supreme Court has jurisdiction to deal with this matter, but it is usually dealt with by the State’s guardianship tribunal. See Guardianship Act 1987 (NSW) s 6L, Powers of Attorney Act 1998 (Qld) ss 108, 109 and 109A.
[102] Guardianship Act 1987 (NSW) s 6I.
[104] Guardianship and Administration Act 2000 (Qld) s 22(1). Note ss 23-25 relating appointments of guardians without knowledge of the enduring power of attorney and the attorney acting without knowledge of the appointment of the guardian.
[105] Guardianship and Administration Act 1995 (Tas) s 34(1) and Guardianship and Administration Act 1990 (WA) s 110N.
[106] Guardianship and Management of Property Act 1991 (ACT) ss 62(2)(c) and 8B(1)(d).
[108] Guardianship Act 1987 (NSW) s 6J.
[109] Ibid. s 6K(1). For an example of a review of an appointment of an appointment of an enduring guardian see, Matter No. 2002/4385 (unreported, Guardianship Tribunal, 6 December 2002).
[110] Ibid. s 6K(2). For examples of appointments of enduring guardianship being revoked in the best interests of the appointor see, CNI [2008] NSWGT 17 and QBU [2008] NWSGT 19.
[113] Guardianship and Administration Act 1990 (WA) ss 110J and 110N.
[114] Ibid. s 4(2)(a) and (f).
[115] Ibid. s 110N(1).
[116] Guardianship and Administration Act 1995 (Tas) s 34(1).
[117] Guardianship and Administration Act 1993 (SA) s 26.
[118] Guardianship and Administration Act 1986 (Vic) s 35D.
[119] Powers of Attorney Act 1998 (Qld) ss 108 and 109A.
[120] The maker’s family members are defined in s 110(5) of the Powers of Attorney Act 1998 (Qld) as follows: the maker’s spouse, each of the maker’s children who is 18 years or more (including a stepchild, an adopted child, and a person for whom the maker was foster-parent or guardian when the person was a child) and each of the maker’s parents (including a step-parent, adoptive parent, foster-parent and guardian). If none of these is reasonably available, then each of the maker’s siblings who is 18 years or more (including a step-sibling, adopted sibling, and foster-sibling).
[121] It would appear that any attorney appointed by the maker, whether in relation to the enduring power of attorney for personal matters or otherwise could apply to the Tribunal or Court. The attorney would have to be an attorney under a current power of attorney.
[122] Powers of Attorney Act 1998 (Qld) s 110(3).
[127] RJE [2005] QGAAT 4.
[128] Powers of Attorney Act 1998 (Qld) s 116.
[131] Guardianship and Management of Property Act 1991 (ACT) s 62(2)and(3). As to who are interested persons see Chapter 10. 11. 7. 1.
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