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This is a Bill, not an Act. For current law, see the Acts databases.


GUARDIANSHIP AND ADMINISTRATION BILL 1999

         Queensland




  GUARDIANSHIP AND
ADMINISTRATION BILL 1999

 


 

 

Queensland GUARDIANSHIP AND ADMINISTRATION BILL 1999 TABLE OF PROVISIONS Section Page CHAPTER 1--PRELIMINARY 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 3 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 4 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 CHAPTER 2--EXPLANATION 5 Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 6 Purpose to achieve balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 7 Way purpose achieved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 8 Relationship with Powers of Attorney Act 1998 . . . . . . . . . . . . . . . . . . . . . . 18 9 Range of substitute decision makers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 10 Types of matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 11 Principles for adults with impaired capacity . . . . . . . . . . . . . . . . . . . . . . . . . 20 CHAPTER 3--APPOINTMENT OF GUARDIANS AND ADMINISTRATORS PART 1--MAKING AN APPOINTMENT ORDER 12 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 13 Advance appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 14 Appointment of 1 or more eligible guardians and administrators . . . . . . . . 22 15 Appropriateness considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 16 Advice from proposed appointee about appropriateness and competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 17 Guardian or administrator to update advice about appropriateness and competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

 


 

2 Guardianship and Administration 18 Inquiries about appropriateness and competence . . . . . . . . . . . . . . . . . . . . . 28 19 Comply with other tribunal requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 20 Management plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 21 Advice to registrar of titles if appointment concerns land . . . . . . . . . . . . . . 29 PART 2--RELATIONSHIP BETWEEN APPOINTMENT AND ENDURING DOCUMENT 22 Attorney's power subject to tribunal authorisation . . . . . . . . . . . . . . . . . . . . 29 23 Appointment without knowledge of enduring document . . . . . . . . . . . . . . . . 30 24 Protection if unaware of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 25 Protection if unaware power already exercised by advance health directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 PART 3--CHANGING OR REVOKING AN APPOINTMENT ORDER Division 1--Revocation by appointee 26 Automatic revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 27 Withdrawal with tribunal's leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Division 2--Change or revocation at tribunal review of appointment 28 Periodic review of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 29 Other review of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 30 Guardian or administrator to update advice about appropriateness and competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 31 Appointment review process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 32 Tribunal to advise of change or revocation of appointment . . . . . . . . . . . . . 36 CHAPTER 4--FUNCTIONS AND POWERS OF GUARDIANS AND ADMINISTRATORS PART 1--GENERAL FUNCTIONS AND POWERS OF GUARDIAN OR ADMINISTRATOR 33 Power of guardian or administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 34 Apply principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 35 Act honestly and with reasonable diligence . . . . . . . . . . . . . . . . . . . . . . . . . 37 36 Act as required by terms of tribunal order . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 37 Avoid conflict transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 38 Multiple guardians or administrators are joint if not otherwise stated . . . . 38 39 Act together with joint guardians or administrators . . . . . . . . . . . . . . . . . . . 38

 


 

3 Guardianship and Administration 40 Consult with adult's other appointees or attorneys . . . . . . . . . . . . . . . . . . . . 39 41 Disagreement about matter other than health matter . . . . . . . . . . . . . . . . . . 39 42 Disagreement about health matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 43 Acting contrary to health care principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 44 Right of guardian or administrator to information . . . . . . . . . . . . . . . . . . . . . 41 45 Execution of instrument etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 46 Implied power to execute a deed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 47 Payment of expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 48 Remuneration of professional administrators . . . . . . . . . . . . . . . . . . . . . . . . . 43 PART 2--PARTICULAR FUNCTIONS AND POWERS OF ADMINISTRATORS 49 Keep records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 50 Keep property separate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 51 Power to invest and continue investments . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 52 Unauthorised real estate transaction only with approval . . . . . . . . . . . . . . . 44 53 Unauthorised security transaction only with approval . . . . . . . . . . . . . . . . . 44 54 Gifts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 55 Maintain adult's dependants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 PART 3--OTHER PROVISIONS APPLYING TO GUARDIANS AND ADMINISTRATORS 56 Protection if unaware of change of appointee's power . . . . . . . . . . . . . . . . . 45 57 Advice of change of successive appointee . . . . . . . . . . . . . . . . . . . . . . . . . . 46 58 Power to excuse failure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 59 Compensation for failure to comply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 60 Power to apply to court for compensation for loss of benefit in estate . . . . 47 CHAPTER 5--HEALTH MATTERS AND SPECIAL HEALTH MATTERS PART 1--PHILOSOPHY AND PURPOSE 61 Purpose to achieve balance for health care . . . . . . . . . . . . . . . . . . . . . . . . . . 48 PART 2--SCHEME FOR HEALTH CARE AND SPECIAL HEALTH CARE Division 1--Health care--no consent 62 Division's scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 63 Urgent health care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

 


 

4 Guardianship and Administration 64 Minor, uncontroversial health care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Division 2--Health care and special health care--consent 65 Adult with impaired capacity--order of priority in dealing with special health matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 66 Adult with impaired capacity--order of priority in dealing with health matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 67 Effect of adult's objection to health care . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 PART 3--CONSENT TO SPECIAL HEALTH CARE 68 Special health care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 69 Donation of tissue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 70 Sterilisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 71 Termination of pregnancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 72 Special medical research or experimental health care . . . . . . . . . . . . . . . . 55 73 Prescribed special health care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 74 Subsequent special health care for adult . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 PART 4--OTHER PROVISIONS ABOUT HEALTH CARE 75 Use of force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 76 Health providers to give information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 77 Protection of health provider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 78 Offence to exercise power for adult if no right to do so . . . . . . . . . . . . . . . . 59 79 Offence to carry out health care unless authorised . . . . . . . . . . . . . . . . . . . . 60 80 No less protection than if adult gave health consent . . . . . . . . . . . . . . . . . . 61 CHAPTER 6--GUARDIANSHIP AND ADMINISTRATION TRIBUNAL PART 1--ESTABLISHMENT, FUNCTIONS AND POWERS 81 Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 82 Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 83 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 84 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 85 Powers of the registrar to perform tribunal's functions and exercise tribunal's powers in prescribed non-contentious matters . . . . . . . . 63 PART 2--ADMINISTRATIVE PROVISIONS 86 Appointment of president and deputy presidents . . . . . . . . . . . . . . . . . . . . . . 64 87 Not under Ministerial control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

 


 

5 Guardianship and Administration 88 President may delegate to deputy president . . . . . . . . . . . . . . . . . . . . . . . . . 65 89 Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 90 Appointment of other tribunal members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 91 Selection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 92 Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 93 Terms of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 94 Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 95 Acting appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 96 Registrar and staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 97 Powers of the registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 98 Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 CHAPTER 7--TRIBUNAL PROCEEDINGS PART 1--GENERAL 99 Rule-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 100 Tribunal's business and approval of forms . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 101 Members constituting tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 102 Presiding member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 103 Disqualification from hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 104 Way procedure to be decided . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 105 Way question of law to be decided . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 106 Way other question to be decided . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 107 Informal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 108 Procedural fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 109 Open . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 110 Procedural directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 111 Use of technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 112 Publication about proceeding or disclosure of identity . . . . . . . . . . . . . . . . . 75 113 Location . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 114 No filing fee payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 PART 2--APPLICATIONS 115 Scope of applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 116 How to apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

 


 

6 Guardianship and Administration 117 Application for appointment of guardian or administrator . . . . . . . . . . . . . . 78 118 Tribunal advises persons concerned of hearing . . . . . . . . . . . . . . . . . . . . . . . 78 119 Who is an "active party" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 120 Notice of intention to be an active party . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 121 Protection if unaware of invalidity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 122 Withdrawal of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 PART 3--PARTICIPATION 123 Right of active party to appear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 124 Representative may be used with tribunal's leave . . . . . . . . . . . . . . . . . . . . 81 125 Representative may be appointed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 126 Tribunal to decide who are interested persons . . . . . . . . . . . . . . . . . . . . . . . 81 127 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 PART 4--PROCEEDING 128 Tribunal may stay decision pending hearing . . . . . . . . . . . . . . . . . . . . . . . . . 82 129 Interim order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 130 Tribunal to ensure it has all relevant information and material . . . . . . . . . . 83 131 Tribunal may proceed without further information . . . . . . . . . . . . . . . . . . . . 83 132 Tribunal may proceed in absence of an active party . . . . . . . . . . . . . . . . . . 83 133 Tribunal may adjourn proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 134 Report by tribunal staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 135 Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 136 Witness fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 137 Offences by witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 138 Advice, directions and recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 139 Fabricating evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 140 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 141 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 142 Influencing participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 143 Contempt of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 144 Obstructing tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 145 Protection of tribunal members, representatives and witnesses . . . . . . . . . . 90

 


 

7 Guardianship and Administration PART 5--PARTICULAR PROCEEDINGS OR ORDERS Division 1--Declaration about capacity 146 Declaration about capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 147 Effect of declaration about capacity to enter contract . . . . . . . . . . . . . . . . . 91 Division 2--Entry and removal warrant 148 Application for entry and removal warrant . . . . . . . . . . . . . . . . . . . . . . . . . . 91 149 Issue of entry and removal warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 150 Role of occupier if entry and removal warrant . . . . . . . . . . . . . . . . . . . . . . . 92 151 Reporting requirement after removal of adult . . . . . . . . . . . . . . . . . . . . . . . . 93 Division 3--Miscellaneous 152 Tribunal authorisation or approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 153 Records and audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 154 Ratification or approval of exercise of power by informal decision maker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 155 Suspension of guardianship order or administration order . . . . . . . . . . . . . . 95 PART 6--DECISION 156 Decision within reasonable time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 157 Written reasons for decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 158 Decision and reasons to the adult and each active party . . . . . . . . . . . . . . . 97 159 Proof of orders and decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 PART 7--REVIEW OF REGISTRAR'S DECISION 160 Application for review of registrar's decision . . . . . . . . . . . . . . . . . . . . . . . . 98 161 Review of registrar's decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 162 Effect of review on original decision of registrar . . . . . . . . . . . . . . . . . . . . . 98 PART 8--APPEAL 163 Tribunal may suspend decision pending appeal . . . . . . . . . . . . . . . . . . . . . . 99 164 Appellant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 165 Appeal costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 PART 9--RECOGNITION OF ORDER MADE UNDER ANOTHER LAW 166 Definitions for pt 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 167 Notification of equivalent provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 168 Application to register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

 


 

8 Guardianship and Administration 169 Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 170 Effect of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 171 Notice of registration and subsequent action to original maker . . . . . . . . . . 101 PART 10--OTHER PROVISIONS ABOUT PROCEEDINGS 172 Enforcement of orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 CHAPTER 8--ADULT GUARDIAN PART 1--ESTABLISHMENT, FUNCTIONS AND POWERS 173 Adult guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 174 Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 175 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 176 Not under Ministerial control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 177 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 178 Consultation and employment of professionals . . . . . . . . . . . . . . . . . . . . . . . 106 179 Advice and supervision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 PART 2--INVESTIGATIVE POWERS 180 Investigate complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 181 Delegate for investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 182 Records and audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 183 Right to information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 184 Information by statutory declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 185 Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 186 Power of court if noncompliance with attendance notice . . . . . . . . . . . . . . 110 187 Power of court if failure to cooperate under subpoena . . . . . . . . . . . . . . . . . 111 188 Self-incrimination not a reasonable excuse . . . . . . . . . . . . . . . . . . . . . . . . . . 111 189 Cost of investigations and audits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 190 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 191 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 192 Obstructing investigation or audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 193 Report after investigation or audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 PART 3--PROTECTIVE POWERS 194 Proceedings for protection of property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 195 Suspension of attorney's power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

 


 

9 Guardianship and Administration 196 Exercise of power during suspension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 197 Power to apply for entry and removal warrant . . . . . . . . . . . . . . . . . . . . . . . . 117 198 Health providers may advise adult guardian . . . . . . . . . . . . . . . . . . . . . . . . . 117 PART 4--ADMINISTRATIVE PROVISIONS 199 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 200 Selection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 201 Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 202 Terms of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 203 Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 204 Acting adult guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 205 Staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 206 Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 207 Not a statutory body for particular Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 CHAPTER 9--PUBLIC ADVOCATE PART 1--ESTABLISHMENT, FUNCTIONS AND POWERS 208 Public advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 209 Functions--systemic advocacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 210 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 211 Not under Ministerial control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 212 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 PART 2--ADMINISTRATIVE PROVISIONS 213 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 214 Selection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 215 Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 216 Terms of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 217 Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 218 Acting public advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 219 Staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 220 Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 221 Not a statutory body for particular Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

 


 

10 Guardianship and Administration CHAPTER 10--COMMUNITY VISITORS PART 1--PRELIMINARY 222 Definitions for ch 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 223 Purpose and allocation of community visitors . . . . . . . . . . . . . . . . . . . . . . . . 125 PART 2--FUNCTIONS AND POWERS 224 Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 225 Requirement to regularly visit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 226 Requirement to visit if asked . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 227 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 228 Chief executive may authorise access outside normal hours . . . . . . . . . . . . 128 229 Consumer's views and wishes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 230 Reports by community visitors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 PART 3--ADMINISTRATIVE PROVISIONS 231 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 232 Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 233 Terms of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 234 Issue of identity cards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 235 Production or display of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 236 Failure to return identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 237 Annual report by chief executive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 CHAPTER 11--MISCELLANEOUS PROVISIONS PART 1--RELATIONSHIP WITH CRIMINAL LAW 238 Act does not authorise euthanasia or affect particular provisions of Criminal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 PART 2--RELATIONSHIP WITH COURT JURISDICTION 239 Litigation guardian process not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 240 Supreme Court's inherent jurisdiction not affected . . . . . . . . . . . . . . . . . . . . 134 241 Transfer of proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 242 Stay of proceeding concerning an enduring document . . . . . . . . . . . . . . . . . 134 243 Interim appointed decision maker if Supreme Court proceeding . . . . . . . . . 134 244 Chapter 3 applies for interim appointment . . . . . . . . . . . . . . . . . . . . . . . . . . 134 PART 3--SETTLEMENTS OR DAMAGES AWARDS 245 Settlements or damages awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

 


 

11 Guardianship and Administration PART 4--PROTECTION FROM LIABILITY 246 Definitions for pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 247 Whistleblowers' protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 248 Protection from liability if honest and not negligent . . . . . . . . . . . . . . . . . . 136 249 Preservation of confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 250 Disclosure of information about investigations . . . . . . . . . . . . . . . . . . . . . . . 138 PART 5--FORMS AND REGULATIONS 251 Chief executive may approve forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 252 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 CHAPTER 12--TRANSITIONAL PROVISIONS AND REPEAL PART 1--TRANSITIONAL PROVISIONS FOR ADULT GUARDIAN 253 Definitions for pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 254 Appointment of adult guardian continues . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 255 Particular things continued . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 PART 2--TRANSITIONAL PROVISIONS FOR COMMITTEE 256 Power to apply to court for compensation for loss of benefit in estate because of committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 257 Tribunal's power if committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 PART 3--TRANSITIONAL PROVISIONS FOR, AND REPEAL OF, INTELLECTUALLY DISABLED CITIZENS ACT 1985 258 Definitions for pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 259 Adult guardian assumes legal friend responsibilities . . . . . . . . . . . . . . . . . . 142 260 Management by public trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 261 Council records to be given to tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 262 Repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 CHAPTER 13--AMENDMENTS 263 Act amended in sch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 144 PRINCIPLES PART 1--GENERAL PRINCIPLES 1 Presumption of capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 2 Same human rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

 


 

12 Guardianship and Administration 3 Individual value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 4 Valued role as member of society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 5 Participation in community life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 6 Encouragement of self-reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 7 Maximum participation, minimal limitations and substituted judgment . . 145 8 Maintenance of existing supportive relationships . . . . . . . . . . . . . . . . . . . . . 146 9 Maintenance of environment and values . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 10 Appropriate to circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 11 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 PART 2--HEALTH CARE PRINCIPLE 12 Health care principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . 149 TYPES OF MATTERS PART 1--FINANCIAL MATTER 1 Financial matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 PART 2--PERSONAL MATTER 2 Personal matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 3 Special personal matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 4 Health matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 5 Health care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 6 Special health matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 7 Special health care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 8 Removal of tissue for donation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 9 Sterilisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 10 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 11 Primary reason for treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 12 Special medical research or experimental health care . . . . . . . . . . . . . . . . 154 13 Approved clinical research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 14 Electroconvulsive therapy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 15 Psychosurgery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 16 Special life-sustaining measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 17 Prescribed special health care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

 


 

13 Guardianship and Administration PART 3--LEGAL MATTER 18 Legal matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 SCHEDULE 3 . . . . . . . . . . . . . . . . . . . . . . . . 158 ACTS AMENDED HEALTH ACT 1937 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 HEALTH RIGHTS COMMISSION ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . 158 LAND ACT 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 LAND TITLE ACT 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 LEGAL AID QUEENSLAND ACT 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 MEDICAL ACT 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 MENTAL HEALTH ACT 1974 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 POWERS OF ATTORNEY ACT 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 PUBLIC TRUSTEE ACT 1978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 TRANSPLANTATION AND ANATOMY ACT 1979 . . . . . . . . . . . . . . . . . 189 SCHEDULE 4 . . . . . . . . . . . . . . . . . . . . . . . . 191 DICTIONARY

 


 

 

1999 A BILL FOR An Act to consolidate, amend and reform the law relating to the appointment of guardians and administrators to manage the personal and financial affairs of adults with impaired capacity, to establish a Guardianship and Administration Tribunal, to continue the office of Adult Guardian, to create an office of Public Advocate, and for other purposes

 


 

s1 16 s5 Guardianship and Administration The Parliament of Queensland enacts-- 1 CHAPTER 1--PRELIMINARY 2 title 3 Short 1. This Act may be cited as the Guardianship and Administration Act 4 1999. 5 6 Commencement 2. This Act commences on a day to be fixed by proclamation. 7 8 Definitions 3. The dictionary in schedule 4 defines particular words used in this Act. 9 binds all persons 10 Act 4. This Act binds all persons, including the State, and, so far as the 11 legislative power of the Parliament permits, the Commonwealth and the 12 other States. 13 HAPTER 2--EXPLANATION 14 C 15 Acknowledgments 5. This Act acknowledges the following-- 16 (a) an adult's right to make decisions is fundamental to the adult's 17 inherent dignity; 18 (b) the right to make decisions includes the right to make decisions 19 with which others may not agree; 20

 


 

s6 17 s7 Guardianship and Administration (c) the capacity of an adult with impaired capacity to make decisions 1 may differ according to-- 2 (i) the nature and extent of the impairment; and 3 (ii) the type of decision to be made, including, for example, the 4 complexity of the decision to be made; and 5 (iii) the support available from members of the adult's existing 6 support network; 7 (d) the right of an adult with impaired capacity to make decisions 8 should be restricted, and interfered with, to the least possible 9 extent; 10 (e) an adult with impaired capacity has a right to adequate and 11 appropriate support for decision making. 12 to achieve balance 13 Purpose 6. This Act seeks to strike an appropriate balance between-- 14 (a) the right of an adult with impaired capacity to the greatest possible 15 degree of autonomy in decision making; and 16 (b) the adult's right to adequate and appropriate support for decision 17 making. 18 purpose achieved 19 Way 7. This Act-- 20 (a) provides that an adult is presumed to have capacity for a matter; 21 and 22 (b) together with the Powers of Attorney Act 1998, provides a 23 comprehensive scheme to facilitate the exercise of power for 24 financial matters and personal matters by or for an adult who 25 needs, or may need, another person to exercise power for the 26 adult; and 27 (c) states principles to be observed by anyone performing a function 28 or exercising a power under the scheme; and 29

 


 

s8 18 s8 Guardianship and Administration (d) encourages involvement in decision making of the members of 1 the adult's existing support network; and 2 (e) establishes a tribunal to administer particular aspects of the 3 scheme; and 4 (f) continues the office of adult guardian and provides for the adult 5 guardian to be available as a possible guardian for an adult with 6 impaired capacity, and for other purposes; and 7 (g) recognises the public trustee is available as a possible 8 administrator for an adult with impaired capacity; and 9 (h) provides for the appointment of the public advocate for systemic 10 advocacy; and 11 (i) provides for the appointment of community visitors. 12 with Powers of Attorney Act 1998 13 Relationship 8.(1) This Act is to be read in conjunction with the Powers of Attorney 14 Act 1998 which provides a scheme by which-- 15 (a) by enduring power of attorney or advance health directive, an 16 adult may authorise other persons to make particular decisions 17 and do particular other things for the adult in relation to financial 18 matters and personal matters1 at a time when the adult does not 19 have capacity to do those things; and 20 (b) by advance health directive, an adult may make directions for the 21 adult's future health care and special health care; and 22 (c) a statutory health attorney is authorised to do particular things for 23 an adult in particular circumstances in relation to health care. 24 (2) If there is an inconsistency between this Act and the Powers of 25 Attorney Act 1998, this Act prevails. 26 1 Personal matters do not include special personal matters or special health matters--schedule 2, section 2.

 


 

s9 19 s 10 Guardianship and Administration of substitute decision makers 1 Range 9.(1) This Act and the Powers of Attorney Act 1998 authorise the exercise 2 of power for a matter for an adult with impaired capacity for the matter. 3 (2) Depending on the type of matter involved, this may be done-- 4 (a) on an informal basis by members of the adult's existing support 5 network;2 or 6 (b) on a formal basis by 1 of the following-- 7 (i) an attorney for personal matters appointed by the adult under 8 an enduring power of attorney or advance health directive 9 under the Powers of Attorney Act 1998; 10 (ii) an attorney for financial matters appointed by the adult under 11 an enduring power of attorney under the Powers of Attorney 12 Act 1998; 13 (iii) a statutory health attorney under the Powers of Attorney Act 14 1998; 15 (iv) a guardian appointed under this Act;3 16 (v) an administrator appointed under this Act;4 17 (vi) the guardianship and administration tribunal; 18 (vii) the court. 19 of matter 20 Types 10. This Act categorises matters as follows-- 21 · personal matter 22 · special personal matter 23 2 Although this Act deals primarily with formal substituted decision making, a decision or proposed decision of an informal decision maker may be ratified or approved under section 154. 3 A guardian may only be appointed for personal matters. 4 An administrator may only be appointed for financial matters.

 


 

s 11 20 s 11 Guardianship and Administration · special health matter 1 · financial matter.5 2 for adults with impaired capacity 3 Principles 11.(1) A person or other entity who performs a function or exercises a 4 power6 under this Act for a matter in relation to an adult with impaired 5 capacity for the matter must apply the principles stated in schedule 1 (the 6 "general principles" and, for a health matter, the "health care principle"). 7 8 Example 1-- 9 If an adult has impaired capacity for a matter, a guardian or administrator who 10 may exercise power for the matter must-- 11 (a) apply the general principles; and 12 (b) if the matter is a health matter, also apply the health care principle. 13 Example 2-- 14 The tribunal in deciding whether to consent to special health care for an adult 15 with impaired capacity for the special health matter concerned, must apply the 16 general principles and the health care principle. (2) An entity authorised by an Act to make a decision for an adult about 17 prescribed special health care must apply the general principles and the 18 health care principle. 19 (3) The community is encouraged to apply and promote the general 20 principles. 21 5 Schedule 2 contains definitions of types of matters. 6 "Function" includes duty and "power" includes authority--see Acts Interpretation Act 1954, section 36.

 


 

s 12 21 s 13 Guardianship and Administration HAPTER 3--APPOINTMENT OF GUARDIANS 1 C AND ADMINISTRATORS 2 PART 1--MAKING AN APPOINTMENT ORDER 3 4 Appointment 12.(1) The tribunal may, by order, appoint a guardian for a personal 5 matter, or an administrator for a financial matter, for an adult if the tribunal 6 is satisfied-- 7 (a) the adult has impaired capacity for the matter; and 8 (b) there is a need for a decision in relation to the matter or the adult is 9 likely to do something in relation to the matter that involves, or is 10 likely to involve, unreasonable risk to the adult's health, welfare 11 or property; and 12 (c) without an appointment-- 13 (i) the adult's needs will not be adequately met; or 14 (ii) the adult's interests will not be adequately protected. 15 (2) The appointment may be on terms considered appropriate by the 16 tribunal. 17 (3) The tribunal may make the order on its own initiative or on the 18 application of the adult, the adult guardian or an interested person. 19 appointment 20 Advance 13.(1) The tribunal may, by order, make an appointment of a guardian 21 for a personal matter, or an administrator for a financial matter, for an 22 individual who is at least 171/2 years but not 18 years if the tribunal is 23 satisfied-- 24 (a) there is a reasonable likelihood, when the individual turns 18, the 25 individual will have impaired capacity for the matter; and 26 (b) there is a reasonable likelihood, when the individual turns 18-- 27

 


 

s 14 22 s 14 Guardianship and Administration (i) there will be a need to do something in relation to the matter; 1 or 2 (ii) the individual is likely to do something in relation to the 3 matter that involves, or is likely to involve, unreasonable risk 4 to the individual's health, welfare or property; and 5 (c) there is a reasonable likelihood, without an appointment, when the 6 individual turns 18-- 7 (i) the individual's needs would not be adequately met; or 8 (ii) the individual's interests would not be adequately protected. 9 (2) This Act applies, with necessary changes, to an appointment under 10 this section. 11 (3) The appointment begins when the individual turns 18. 12 (4) The appointment ends when the individual turns 19, unless the 13 tribunal orders the appointment to be for a longer period. 14 (5) The tribunal may order the appointment for a longer period only if the 15 tribunal considers-- 16 (a) the need for an appointment will continue for the longer period; 17 and 18 (b) the need for the tribunal to review the appointment is very limited. 19 (6) The longer period may be up to 5 years. 20 (7) The appointment may be on terms considered appropriate by the 21 tribunal. 22 (8) The tribunal may make the order on its own initiative or on the 23 application of the individual or an interested person. 24 of 1 or more eligible guardians and administrators 25 Appointment 14.(1) The tribunal may appoint a person as guardian or administrator for 26 a matter only if-- 27 (a) for appointment as a guardian, the person is-- 28 (i) a person who is at least 18 years and not a paid carer, or 29 health provider, for the adult; or 30

 


 

s 14 23 s 14 Guardianship and Administration (ii) the adult guardian; and 1 (b) for appointment as an administrator, the person is-- 2 (i) a person who is at least 18 years, not a paid carer, or health 3 provider, for the adult and not bankrupt or taking advantage 4 of the laws of bankruptcy as a debtor under the Bankruptcy 5 Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or 6 (ii) the public trustee or a trustee company under the Trustee 7 Companies Act 1968; and 8 (c) having regard to the matters mentioned in section 15(1), the 9 tribunal considers the person appropriate for appointment. 10 (2) Subject to section 74,7 no-one may be appointed as a guardian for a 11 special personal matter or special health matter.8 12 (3) The tribunal may appoint 1 or more of the following-- 13 (a) a single appointee for a matter or all matters; 14 (b) different appointees for different matters; 15 (c) a person to act as appointee for a matter or all matters in a stated 16 circumstance; 17 (d) alternative appointees for a matter or all matters so power is given 18 to a particular appointee only in stated circumstances; 19 (e) successive appointees for a matter or all matters so power is given 20 to a particular appointee only when power given to a previous 21 appointee ends; 22 (f) joint or several, or joint and several, appointees for a matter or all 23 matters; 24 (g) 2 or more joint appointees for a matter or all matters, being a 25 number less than the total number of appointees for the matter or 26 all matters. 27 7 Section 74 (Subsequent special health care for adult) 8 The tribunal may consent to particular special health care--see section 68 (Special health care).

 


 

s 15 24 s 15 Guardianship and Administration (4) If the tribunal makes an appointment because an adult has impaired 1 capacity for a matter and the tribunal does not consider the impaired capacity 2 is permanent, the tribunal must state in its order when it considers it 3 appropriate for the appointment to be reviewed.9 4 considerations 5 Appropriateness 15.(1) In deciding whether a person is appropriate for appointment as a 6 guardian or administrator for an adult, the tribunal must consider the 7 following matters ("appropriateness considerations")-- 8 (a) the general principles and whether the person is likely to apply 9 them; 10 (b) if the appointment is for a health matter--the health care principle 11 and whether the person is likely to apply it; 12 (c) the extent to which the adult's and person's interests are likely to 13 conflict; 14 (d) whether the adult and person are compatible including, for 15 example, whether the person has appropriate communication 16 skills or appropriate cultural or social knowledge or experience, to 17 be compatible with the adult; 18 (e) if more than 1 person is to be appointed--whether the persons are 19 compatible; 20 (f) whether the person would be available and accessible to the adult; 21 (g) the person's appropriateness and competence to perform 22 functions and exercise powers under an appointment order. 23 (2) The fact a person is a relation of the adult does not, of itself, mean the 24 adult's and person's interests are likely to conflict. 25 (3) Also, the fact a person may be a beneficiary of the adult's estate on 26 the adult's death does not, of itself, mean the adult's and person's interests 27 are likely to conflict. 28 (4) In considering the person's appropriateness and competence, the 29 tribunal must have regard to the following-- 30 9 Otherwise periodic reviews happen under section 28.

 


 

s 15 25 s 15 Guardianship and Administration (a) the nature and circumstances of any criminal history, whether in 1 Queensland or elsewhere, of the person including the likelihood 2 the commission of any offence in the criminal history may 3 adversely affect the adult; 4 (b) the nature and circumstances of any refusal of, or removal from, 5 appointment, whether in Queensland or elsewhere, as a guardian, 6 administrator, attorney or other person making a decision for 7 someone else; 8 (c) if the proposed appointment is of an administrator and the person 9 is an individual-- 10 (i) the nature and circumstances of the person having been a 11 bankrupt or taking advantage of the laws of bankruptcy as a 12 debtor under the Bankruptcy Act 1966 (Cwlth) or a similar 13 law of a foreign jurisdiction; and 14 (ii) the nature and circumstances of a proposed, current or 15 previous arrangement with the person's creditors under the 16 Bankruptcy Act 1966 (Cwlth), part 1010 or a similar law of a 17 foreign jurisdiction; and 18 (iii) the nature and circumstances of a proposed, current or 19 previous external administration of a corporation, partnership 20 or other entity of which the person is or was a director, 21 secretary or partner or in whose management, direction or 22 control the person is or was involved. 23 (5) In this section-- 24 "attorney" means-- 25 (a) an attorney under a power of attorney; or 26 (b) an attorney under an advance health directive or similar document 27 under the law of another jurisdiction. 28 "power of attorney" means-- 29 (a) a general power of attorney made under the Powers of Attorney 30 Act 1998; or 31 10 Bankruptcy Act 1966 (Cwlth), part 10 (Arrangements with creditors without sequestration)

 


 

s 16 26 s 16 Guardianship and Administration (b) an enduring power of attorney; or 1 (c) a power of attorney made otherwise than under the Powers of 2 Attorney Act 1998, whether before or after its commencement; or 3 (d) a similar document under the law of another jurisdiction. 4 from proposed appointee about appropriateness and 5 Advice competence 6 16.(1) An individual who has agreed to a proposed appointment 7 (a "proposed appointee") must advise the tribunal before the tribunal 8 makes an order appointing the proposed appointee whether he or she-- 9 (a) is under 18 years; or 10 (b) is a paid carer or health provider for the adult; or 11 (c) has any criminal history, whether in Queensland or elsewhere; or 12 (d) has been, whether in Queensland or elsewhere, refused, or 13 removed from, appointment as a guardian, administrator, attorney 14 or other person making a decision for someone else; or 15 (e) for a proposed appointment as administrator-- 16 (i) is bankrupt or taking advantage of the laws of bankruptcy as 17 a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar 18 law of a foreign jurisdiction; or 19 (ii) has ever been bankrupt or taken advantage of the laws of 20 bankruptcy as a debtor under the Bankruptcy Act 1966 21 (Cwlth) or a similar law of a foreign jurisdiction; or 22 (iii) is proposing to make, or has ever made, an arrangement 23 with his or her creditors under the Bankruptcy Act 1966 24 (Cwlth), part 1011 or a similar law of a foreign jurisdiction; 25 or 26 11 Bankruptcy Act 1966 (Cwlth), part 10 (Arrangements with creditors without sequestration)

 


 

s 16 27 s 16 Guardianship and Administration (iv) is or was a director, secretary or partner, or is or was 1 involved in the management, direction or control of a 2 corporation, partnership or other entity that is proposing to 3 be, is or has been, under external administration. 4 Maximum penalty--40 penalty units. 5 (2) The proposed appointee must also advise the tribunal of any likely 6 conflict between-- 7 (a) the duty of the proposed appointee if appointed as guardian or 8 administrator towards the adult; and 9 (b) either-- 10 (i) the interests of the proposed appointee or a person in a close 11 personal or business relationship with the proposed 12 appointee; or 13 (ii) another duty of the proposed appointee as guardian or 14 administrator for another person. 15 Maximum penalty--40 penalty units. 16 (3) The proposed appointee must give the advice by statutory declaration 17 or on oath or affirmation if required by the tribunal. 18 Maximum penalty--40 penalty units. 19 (4) In this section-- 20 "attorney" means-- 21 (a) an attorney under a power of attorney; or 22 (b) an attorney under an advance health directive or similar document 23 under the law of another jurisdiction. 24 "power of attorney" means-- 25 (a) a general power of attorney made under the Powers of Attorney 26 Act 1998; or 27 (b) an enduring power of attorney; or 28 (c) a power of attorney made otherwise than under the Powers of 29 Attorney Act 1998, whether before or after its commencement; or 30 (d) a similar document under the law of another jurisdiction. 31

 


 

s 17 28 s 19 Guardianship and Administration or administrator to update advice about appropriateness 1 Guardian and competence 2 17.(1) After appointment, a guardian or administrator is under a 3 continuing duty to advise the tribunal of anything of which the guardian or 4 administrator-- 5 (a) has not previously advised the tribunal; and 6 (b) would be required to advise the tribunal under section 16 if the 7 tribunal were considering whether to appoint the guardian or 8 administrator. 9 Maximum penalty--40 penalty units. 10 (2) The guardian or administrator must give the advice by statutory 11 declaration or on oath or affirmation if required by the tribunal. 12 Maximum penalty--40 penalty units. 13 about appropriateness and competence 14 Inquiries 18.(1) The tribunal may make inquiries about the appropriateness and 15 competence to perform functions and exercise powers under an 16 appointment order of a person who has agreed to a proposed appointment 17 or who is a guardian or administrator. 18 (2) If asked by the tribunal, the commissioner of the police service must 19 give the tribunal a written report about the criminal history of-- 20 (a) a person who has agreed to a proposed appointment; or 21 (b) a person who is a guardian or administrator; or 22 (c) if the person mentioned in paragraph (a) or (b) is a corporation--a 23 director, secretary or person involved in the management, 24 direction or control of the corporation. 25 with other tribunal requirement 26 Comply 19.(1) The tribunal may impose a requirement, including a requirement 27 about giving security, on a guardian or administrator or a person who is to 28 become a guardian or administrator. 29

 


 

s 20 29 s 22 Guardianship and Administration (2) A guardian or administrator or person who is to become a guardian 1 or administrator must comply with the requirement. 2 Maximum penalty--200 penalty units. 3 plan 4 Management 20. Unless the tribunal orders otherwise, a person who agrees to a 5 proposed appointment as an administrator must give a management plan to 6 the tribunal, or its nominee, for approval. 7 to registrar of titles if appointment concerns land 8 Advice 21.(1) If the tribunal appoints an administrator for a matter involving an 9 interest in land, the tribunal must advise the registrar of titles. 10 (2) If the registrar of titles receives an advice, the registrar of titles must 11 enter the advice in a file maintained for the purpose. 12 (3) The administrator must pay the fee payable to the registrar of titles.12 13 ART 2--RELATIONSHIP BETWEEN 14 P APPOINTMENT AND ENDURING DOCUMENT 15 power subject to tribunal authorisation 16 Attorney's 22.(1) This section applies if-- 17 (a) an adult's enduring document gives power for a matter to an 18 attorney; and 19 (b) after the enduring document is made, the tribunal, with 20 knowledge of the existence of the enduring document, gives the 21 power to a guardian or an administrator. 22 12 Note section 47 (Payment of expenses).

 


 

s 23 30 s 23 Guardianship and Administration (2) The attorney may exercise power only to the extent authorised by the 1 tribunal. 2 (3) Subsection (2) does not apply for power for a health matter.13 3 without knowledge of enduring document 4 Appointment 23.(1) This section applies if-- 5 (a) the tribunal gives power for a matter for an adult to a guardian or 6 an administrator without knowledge of the existence of an 7 enduring document giving power for the matter to an attorney for 8 the adult; and 9 (b) the guardian or administrator becomes aware of the existence or 10 purported existence of the enduring document. 11 (2) If the guardian or administrator becomes aware of the existence or 12 purported existence of the enduring document, the guardian's or 13 administrator's power for the matter is suspended pending review of the 14 appointment of the guardian or administrator.14 15 (3) The guardian or administrator must advise the tribunal in writing of 16 the existence or purported existence of the enduring document as soon as 17 practicable. 18 Maximum penalty--40 penalty units. 19 (4) If the tribunal receives an advice under subsection (3), the tribunal 20 must review the appointment of the guardian or administrator. 21 (5) Part 3, division 2 applies to the review.15 22 13 For health matters, see section 66 (Adult with impaired capacity--order of priority in dealing with health matter). 14 Note section 56 (Protection if unaware of change of appointee's power). 15 Part 3 (Changing or revoking an appointment order), division 2 (Change or revocation at tribunal review of appointment)

 


 

s 24 31 s 25 Guardianship and Administration if unaware of appointment 1 Protection 24.(1) An attorney who, without knowing power has been given by the 2 tribunal to a guardian or administrator, purports to exercise the power does 3 not incur any liability, either to the adult or anyone else, because of the 4 appointment of the guardian or administrator. 5 (2) A transaction between-- 6 (a) an attorney who purports to exercise power for a matter; and 7 (b) a person who does not know power for the matter has been given 8 to a guardian or administrator; 9 is, in favour of the person, as valid as if the power had not been given to the 10 guardian or administrator. 11 (3) In this section-- 12 "attorney" means an attorney under an enduring document or a statutory 13 health attorney. 14 "know", power has been given by the tribunal, includes have reason to 15 believe power has been given by the tribunal. 16 if unaware power already exercised by advance health 17 Protection directive 18 25.(1) This section applies if-- 19 (a) an adult's advance health directive includes a direction about a 20 matter; and 21 (b) after the advance health directive is made, but without reference to 22 it, the tribunal gives power for the matter to a guardian. 23 (2) The guardian who, without knowing a direction about the matter is 24 included in an advance health directive, purports to exercise power for the 25 matter does not incur any liability, either to the adult or anyone else, because 26 of the direction being included in the advance health directive. 27 (3) If-- 28 (a) the guardian purports to exercise power for a matter; and 29

 


 

s 26 32 s 26 Guardianship and Administration (b) without knowing a direction about the matter is included in an 1 advance health directive, a person acts in reliance on the purported 2 exercise of power; 3 the person does not incur any liability, either to the adult or anyone else, 4 because of the direction being included in the advance health directive. 5 (4) In this section-- 6 "know", a direction about a matter is included in an advance health 7 directive, includes have reason to believe the matter is dealt with by an 8 advance health directive. 9 ART 3--CHANGING OR REVOKING AN 10 P APPOINTMENT ORDER 11 Division 1--Revocation by appointee 12 revocation 13 Automatic 26.(1) An appointment as a guardian or administrator for an adult for a 14 matter ends if-- 15 (a) the guardian or administrator becomes a paid carer, or health 16 provider, for the adult; or 17 (b) if the guardian or administrator and the adult are married when the 18 appointment is made--the marriage is dissolved; or 19 (c) the guardian or administrator dies. 20 (2) Also, an appointment as an administrator ends if the administrator 21 becomes bankrupt or insolvent. 22 (3) If an appointment as a guardian or administrator ends under 23 subsection (1)(a) or (b) or subsection (2), the former guardian or 24 administrator must advise the tribunal in writing of the ending of the 25 appointment. 26

 


 

s 27 33 s 27 Guardianship and Administration (4) If an appointment as a guardian or administrator for a matter ends 1 under subsection (1) or (2) and the guardian or administrator was a joint 2 guardian or administrator for the matter-- 3 (a) if, of the joint guardians or administrators, there is 1 remaining 4 guardian or administrator, the remaining guardian or 5 administrator may exercise power for the matter; and 6 (b) if, of the joint guardians or administrators, there are 2 or more 7 remaining guardians or administrators, the remaining guardians 8 or administrators may exercise power for the matter and, if 9 exercising power, must exercise power jointly. 10 with tribunal's leave 11 Withdrawal 27.(1) An appointment as a guardian or administrator for an adult for a 12 matter ends if, with the tribunal's leave, the guardian or administrator 13 withdraws as guardian or administrator for the matter. 14 (2) If the tribunal gives leave for a guardian or administrator to withdraw 15 for a matter-- 16 (a) the tribunal may appoint someone else to replace the withdrawing 17 person as guardian or administrator for the matter; and 18 (b) for a withdrawing administrator notice of whose appointment was 19 given to the registrar of titles under section 21,16 the registrar of 20 the tribunal must take reasonable steps to advise the registrar of 21 titles of the withdrawal. 22 (3) If the registrar of titles receives an advice of withdrawal, the registrar 23 of titles must enter the advice in a file maintained for the purpose. 24 (4) The withdrawing administrator must pay the fee payable to the 25 registrar of titles, unless the tribunal orders otherwise. 26 16 Section 21 (Advice to registrar of titles if appointment concerns land)

 


 

s 28 34 s 30 Guardianship and Administration Division 2--Change or revocation at tribunal review of appointment 1 review of appointment 2 Periodic 28. The tribunal must review an appointment of a guardian or 3 administrator-- 4 (a) for an appointment made because an adult has impaired capacity 5 for a matter but the tribunal does not consider the impaired 6 capacity is permanent--in accordance with an order of the 7 tribunal, but at least every 5 years; or 8 (b) otherwise--at least every 5 years. 9 review of appointment 10 Other 29. The tribunal may review an appointment of a guardian or 11 administrator for an adult at any time on its own initiative or on the 12 application of an interested person for the adult. 13 or administrator to update advice about appropriateness 14 Guardian and competence 15 30.(1) For a review of an appointment, the tribunal may require the 16 guardian or administrator to advise the tribunal of anything of which the 17 guardian or administrator-- 18 (a) has not previously advised the tribunal; and 19 (b) would be required to advise the tribunal under section 1617 if the 20 tribunal were considering whether to appoint the guardian or 21 administrator. 22 (2) The guardian or administrator must give the advice by statutory 23 declaration or on oath or affirmation if required by the tribunal. 24 Maximum penalty--40 penalty units. 25 17 Section 16 (Advice from proposed appointee about appropriateness and competence)

 


 

s 31 35 s 31 Guardianship and Administration review process 1 Appointment 31.(1) The tribunal may conduct a review of an appointment of a 2 guardian or administrator (an "appointee") for an adult in the way it 3 considers appropriate. 4 (2) At the end of the review, the tribunal must revoke its order making 5 the appointment unless it is satisfied it would make an appointment if a new 6 application for an appointment were to be made. 7 (3) If the tribunal is satisfied there are appropriate grounds for an 8 appointment to continue, it may either-- 9 (a) continue its order making the appointment; or 10 (b) change its order making the appointment, including, for example, 11 by-- 12 (i) changing the terms of the appointment; or 13 (ii) removing an appointee; or 14 (iii) making a new appointment. 15 (4) However, the tribunal may make an order removing an appointee 16 only if the tribunal considers-- 17 (a) the appointee is no longer competent; or 18 (b) another person is more appropriate for appointment. 19 (5) An appointee is no longer competent if, for example-- 20 (a) a relevant interest of the adult has not been, or is not being, 21 adequately protected; or 22 (b) the appointee has neglected the appointee's duties or abused the 23 appointee's powers, whether generally or in relation to a specific 24 power; or 25 (c) the appointee has otherwise contravened this Act. 26 (6) The tribunal may include in its order changing or revoking the 27 appointment of an administrator a provision as to who must pay the fee 28 payable to the registrar of titles for advice of the change or revocation. 29

 


 

s 32 36 s 33 Guardianship and Administration to advise of change or revocation of appointment 1 Tribunal 32.(1) This section applies if-- 2 (a) the tribunal changes or revokes the appointment for an adult of a 3 guardian or administrator; or 4 (b) the tribunal is given advice of the ending of an appointment under 5 section 26 or 57.18 6 (2) The registrar of the tribunal must take reasonable steps to-- 7 (a) advise the adult and any remaining guardians and administrators 8 of the change or revocation of appointment; and 9 (b) if the registrar of titles was advised of an appointment under 10 section 2119--advise the registrar of titles of any change or 11 revocation of the appointment. 12 (3) If the registrar of titles receives an advice of the change or revocation 13 of appointment, the registrar of titles must enter the advice in a file 14 maintained for the purpose. 15 CHAPTER 4--FUNCTIONS AND POWERS OF 16 GUARDIANS AND ADMINISTRATORS 17 PART 1--GENERAL FUNCTIONS AND POWERS OF 18 GUARDIAN OR ADMINISTRATOR 19 of guardian or administrator 20 Power 33.(1) Unless the tribunal orders otherwise, a guardian is authorised to 21 do, in accordance with the terms of the guardian's appointment, anything in 22 relation to a personal matter that the adult could have done if the adult had 23 18 Section 26 (Automatic revocation) or 57 (Advice of change of successive appointee) 19 Section 21 (Advice to registrar of titles if appointment concerns land)

 


 

s 34 37 s 37 Guardianship and Administration capacity for the matter when the power is exercised. 1 (2) Unless the tribunal orders otherwise, an administrator is authorised to 2 do, in accordance with the terms of the administrator's appointment, 3 anything in relation to a financial matter that the adult could have done if the 4 adult had capacity for the matter when the power is exercised. 5 principles 6 Apply 34.(1) A guardian or administrator must apply the general principles.20 7 (2) In making a health care decision, a guardian must also apply the 8 health care principle. 9 honestly and with reasonable diligence 10 Act 35. A guardian or administrator who may exercise power for an adult 11 must exercise the power honestly and with reasonable diligence to protect 12 the adult's interests. 13 Maximum penalty--200 penalty units. 14 as required by terms of tribunal order 15 Act 36. A guardian or administrator who may exercise power for an adult 16 must, when exercising the power, exercise it as required by the terms of any 17 order of the tribunal. 18 Maximum penalty--200 penalty units. 19 conflict transaction 20 Avoid 37.(1) An administrator for an adult may enter into a conflict transaction 21 only if the tribunal authorises the transaction, conflict transactions of that 22 type or conflict transactions generally. 23 (2) A "conflict transaction" is a transaction in which there may be 24 conflict, or which results in conflict, between-- 25 20 See schedule 1 (Principles).

 


 

s 38 38 s 39 Guardianship and Administration (a) the duty of an administrator towards the adult; and 1 (b) either-- 2 (i) the interests of the administrator or a person in a close 3 personal or business relationship with the administrator; or 4 (ii) another duty of the administrator. 5 6 Examples-- 7 1. A conflict transaction happens if an administrator buys the adult's car. 8 2. A conflict transaction does not happen if an administrator is acting under 9 section 55 to maintain the adult's dependants. (3) However, a transaction is not a conflict transaction only because by 10 the transaction the administrator in the administrator's own right and on 11 behalf of the adult-- 12 (a) deals with an interest in property jointly held; or 13 (b) acquires a joint interest in property; or 14 (c) obtains a loan or gives a guarantee or indemnity in relation to a 15 transaction mentioned in paragraph (a) or (b). 16 (4) A conflict transaction between an administrator and a person who 17 does not know, or have reason to believe, the transaction is a conflict 18 transaction is, in favour of the person, as valid as if the transaction were not 19 a conflict transaction. 20 (5) In this section-- 21 "joint interest" includes an interest as a joint tenant or tenant in common. 22 guardians or administrators are joint if not otherwise stated 23 Multiple 38. Two or more guardians or administrators for a matter are appointed 24 as joint guardians or joint administrators for the matter if the tribunal does 25 not order otherwise. 26 together with joint guardians or administrators 27 Act 39.(1) Guardians or administrators for an adult who may exercise power 28 for a matter jointly must exercise the power unanimously. 29

 


 

s 40 39 s 42 Guardianship and Administration (2) If it is impracticable or impossible to exercise the power 1 unanimously, 1 or more of the guardians or administrators, or another 2 interested person for the adult, may apply for directions to the tribunal. 3 with adult's other appointees or attorneys 4 Consult 40.(1) If there are 2 or more persons who are guardian, administrator or 5 attorney for an adult, the persons must consult with one another on a regular 6 basis to ensure the adult's interests are not prejudiced by a breakdown in 7 communication between them. 8 (2) However, failure to comply with subsection (1) does not affect the 9 validity of an exercise of power by a guardian, administrator or attorney. 10 (3) In this section-- 11 "attorney" means an attorney under an enduring document or a statutory 12 health attorney. 13 about matter other than health matter 14 Disagreement 41.(1) If-- 15 (a) a guardian, administrator or attorney for an adult disagrees with 16 another person who is a guardian, administrator or attorney for 17 the adult about the way power for a matter, other than a health 18 matter, should be exercised; and 19 (b) the disagreement can not be resolved by mediation by the adult 20 guardian; 21 the adult guardian or any person mentioned in paragraph (a) may apply for 22 directions to the tribunal. 23 (2) In this section-- 24 "attorney" means an attorney under an enduring document. 25 about health matter 26 Disagreement 42.(1) If there is a disagreement about a health matter for an adult and the 27 disagreement can not be resolved by mediation by the adult guardian, the 28 adult guardian may exercise power for the health matter. 29

 


 

s 43 40 s 43 Guardianship and Administration (2) If the adult guardian exercises power under subsection (1), the adult 1 guardian must advise the tribunal in writing of the following details-- 2 (a) the name of the adult; 3 (b) an outline of the disagreement; 4 (c) the name of each guardian, attorney or eligible statutory health 5 attorney involved in the disagreement; 6 (d) the decision made by the adult guardian. 7 (3) In this section-- 8 "attorney" means an attorney under an enduring document or a statutory 9 health attorney. 10 "disagreement" about a health matter means-- 11 (a) a disagreement between a guardian or attorney for an adult and 12 another person who is a guardian or attorney for the adult about 13 the way power for the health matter should be exercised; or 14 (b) a disagreement between or among 2 or more eligible statutory 15 health attorneys for an adult about which of them should be the 16 adult's statutory health attorney or how power for the health 17 matter should be exercised. 18 "eligible statutory health attorneys" are persons eligible to be an adult's 19 statutory health attorney under the Powers of Attorney Act 1998, 20 section 63(1)(a), (b) or (c). 21 contrary to health care principle 22 Acting 43.(1) If a guardian or attorney for a health matter for an adult-- 23 (a) refuses to make a decision about the health matter for the adult 24 and the refusal is contrary to the health care principle; or 25 (b) makes a decision about the health matter for the adult and the 26 decision is contrary to the health care principle; 27 the adult guardian may exercise power for the health matter. 28 (2) If the adult guardian exercises power under this section, the adult 29 guardian must advise the tribunal in writing of the following details-- 30

 


 

s 44 41 s 44 Guardianship and Administration (a) the name of the adult; 1 (b) the name of the guardian or attorney; 2 (c) a statement as to why the refusal or decision is contrary to the 3 health care principle; 4 (d) the decision made by the adult guardian. 5 (3) In this section-- 6 "attorney" means an attorney under an enduring document or a statutory 7 health attorney. 8 of guardian or administrator to information 9 Right 44.(1) A guardian or administrator who has power for a matter for an 10 adult has a right to all the information the adult would have been entitled to 11 if the adult had capacity and which is necessary to make an informed 12 exercise of the power. 13 (2) At the guardian's or administrator's request, a person who has 14 custody or control of the information must give the information to the 15 guardian or administrator, unless the person has a reasonable excuse. 16 (3) If a person who has custody or control of the information does not 17 comply with a request by a guardian or administrator to give information, 18 the tribunal may, on application by the guardian or administrator, order the 19 person to give the information to the guardian or administrator. 20 (4) If the tribunal orders a person to give information to the guardian or 21 administrator, the person must comply with the order, unless the person has 22 a reasonable excuse. 23 (5) It is a reasonable excuse for a person to fail to give information 24 because giving the information might tend to incriminate the person. 25 (6) This section overrides-- 26 (a) any restriction, in an Act or the common law, about the disclosure 27 or confidentiality of information; and 28 (b) any claim of confidentiality or privilege, including a claim based 29 on legal professional privilege. 30

 


 

s 45 42 s 47 Guardianship and Administration of instrument etc. 1 Execution 45.(1) If necessary or convenient for the exercise of power given to a 2 guardian or administrator (the "appointee"), the appointee may-- 3 (a) execute an instrument with the appointee's own signature or, if 4 sealing is required or used, with the appointee's own seal; and 5 (b) do any other thing in the appointee's own name. 6 (2) An instrument executed by an appointee must be executed in a way 7 showing the appointee executes it as guardian or administrator for the adult. 8 (3) An instrument executed, or thing done, in the way mentioned in this 9 section is as effective as if executed or done by the adult-- 10 (a) with the adult's signature; or 11 (b) with the adult's signature and seal; or 12 (c) in the adult's name. 13 (4) This section applies subject to the Property Law Act 1974, 14 section 46.21 15 power to execute a deed 16 Implied 46. If a tribunal order gives a guardian or administrator power to do a 17 thing, the guardian or administrator is given power to execute a deed to do 18 the thing. 19 of expenses 20 Payment 47. A guardian or administrator for an adult is entitled to reimbursement 21 from the adult of the reasonable expenses incurred in acting as guardian or 22 administrator. 23 21 Property Law Act 1974, section 46 (Execution of instruments by or on behalf of corporations)

 


 

s 48 43 s 50 Guardianship and Administration of professional administrators 1 Remuneration 48.(1) If an administrator for an adult carries on a business of or 2 including administrations under this Act, the administrator is entitled to 3 remuneration from the adult if the tribunal so orders. 4 (2) The remuneration may not be more than the commission payable to a 5 trustee company under the Trustee Companies Act 1968 if the trustee 6 company were administrator for the adult. 7 (3) Nothing in this section affects the right of the public trustee or a 8 trustee company to remuneration or commission under another Act. 9 ART 2--PARTICULAR FUNCTIONS AND POWERS 10 P OF ADMINISTRATORS 11 records 12 Keep 49.(1) An administrator for an adult must-- 13 (a) keep records that are reasonable in the circumstances; and 14 (b) if required by the tribunal--produce records of dealings and 15 transactions involving the adult's property that are reasonable for 16 inspection at the time the tribunal decides. 17 Maximum penalty--100 penalty units. 18 (2) An administrator must also, if required by the tribunal-- 19 (a) keep the records the tribunal decides; and 20 (b) produce the records for inspection at the time and in the way the 21 tribunal decides. 22 Maximum penalty--100 penalty units. 23 property separate 24 Keep 50.(1) An administrator for an adult must keep the administrator's 25 property separate from the adult's property. 26

 


 

s 51 44 s 54 Guardianship and Administration (2) Subsection (1) does not apply to property owned jointly by the adult 1 and administrator. 2 (3) Subsection (1) does not affect another obligation imposed by law. 3 to invest and continue investments 4 Power 51.(1) This section applies if an administrator for an adult has power to 5 invest. 6 (2) The administrator may invest only in authorised investments. 7 (3) However, if, when the administrator is appointed, the adult had 8 investments that were not authorised investments, the administrator may 9 continue the investments, including by taking up rights to issues of new 10 shares, or options for new shares, to which the adult becomes entitled by the 11 adult's existing shareholding. 12 real estate transaction only with approval 13 Unauthorised 52. An administrator who may undertake real estate transactions for an 14 adult may undertake a real estate transaction that is not an authorised real 15 estate transaction only with the tribunal's approval. 16 security transaction only with approval 17 Unauthorised 53. An administrator who may undertake security transactions for an 18 adult may undertake a security transaction that is not an authorised security 19 transaction only with the tribunal's approval. 20 21 Gifts 54.(1) Unless the tribunal orders otherwise, an administrator for an adult 22 may give away the adult's property only if-- 23 (a) the gift is-- 24 (i) a gift or donation of the nature the adult made when the adult 25 had capacity; or 26 (ii) a gift or donation of the nature the adult might reasonably be 27 expected to make; and 28

 


 

s 55 45 s 56 Guardianship and Administration (b) the gift's value is not more than what is reasonable having regard 1 to all the circumstances and, in particular, the adult's financial 2 circumstances. 3 (2) The administrator or a charity with which the administrator has a 4 connection is not precluded from receiving a gift under subsection (1). 5 adult's dependants 6 Maintain 55.(1) An administrator for an adult may provide from the adult's estate 7 for the needs of a dependant of the adult. 8 (2) However, unless the tribunal orders otherwise, what is provided must 9 not be more than what is reasonable having regard to all the circumstances 10 and, in particular, the adult's financial circumstances. 11 PART 3--OTHER PROVISIONS APPLYING TO 12 GUARDIANS AND ADMINISTRATORS 13 if unaware of change of appointee's power 14 Protection 56.(1) This section applies if-- 15 (a) the tribunal gives power for a matter to a guardian or 16 administrator; and 17 (b) the power is changed. 18 (2) The guardian or administrator who, without knowing of the change, 19 purports to exercise power for the matter does not incur any liability, either 20 to the adult or anyone else, because of the change. 21 (3) A transaction between-- 22 (a) the guardian or administrator who purports to exercise power for 23 the matter; and 24 (b) a person who does not know of the change; 25 is, in favour of the person, as valid as if the power had not been changed. 26

 


 

s 57 46 s 58 Guardianship and Administration (4) In this section-- 1 "change", of power for a matter, includes-- 2 (a) suspension of power for the matter; and 3 (b) removal as guardian or administrator for the matter. 4 "know", of a change of a power, includes-- 5 (a) know of the happening of an event22 that changes the power; and 6 (b) have reason to believe the change has happened. 7 of change of successive appointee 8 Advice 57.(1) This section applies if the tribunal appoints successive guardians 9 or administrators so power is given to a particular appointee only when the 10 power of a previous appointee ends. 11 (2) If the power of a previous appointee ends-- 12 (a) the previous appointee must advise the next successive appointee 13 of the ending of the previous appointment; and 14 (b) the next successive appointee must advise the tribunal in writing 15 of the change as soon as practicable. 16 to excuse failure 17 Power 58. If a guardian or administrator is prosecuted in a court for a failure to 18 comply with this chapter, the court may excuse the failure if it considers the 19 guardian or administrator has acted honestly and reasonably and ought fairly 20 to be excused for the failure. 21 22 For example, an appointment ends if a guardian or administrator for an adult becomes a paid carer, or health provider, for the adult--see section 26 (Automatic revocation).

 


 

s 59 47 s 60 Guardianship and Administration for failure to comply 1 Compensation 59.(1) A guardian or administrator for an adult (an "appointee") may be 2 ordered by the tribunal or a court to compensate the adult (or, if the adult has 3 died, the adult's estate) for a loss caused by the appointee's failure to 4 comply with this Act in the exercise of a power. 5 (2) Subsection (1) applies even if the appointee is convicted of an offence 6 in relation to the appointee's failure. 7 (3) If the adult or appointee has died, the application for compensation 8 must be made to the tribunal or a court within 6 months after the death. 9 (4) If the adult and appointee have died, the application for compensation 10 must be made to the tribunal or a court within 6 months after the first death. 11 (5) The tribunal or a court may extend the application time. 12 (6) If security has been given under section 1923 and the tribunal or a 13 court makes an order for compensation under this section, the tribunal or 14 court may also order that the security be applied in satisfaction of the order 15 for compensation. 16 (7) Compensation paid under a tribunal or court order must be taken into 17 account in assessing damages in a later civil proceeding in relation to the 18 appointee's exercise of the power. 19 (8) In this section-- 20 "court" means any court. 21 to apply to court for compensation for loss of benefit in estate 22 Power 60.(1) This section applies if a person's benefit in an adult's estate under 23 the adult's will, on intestacy, or by another disposition taking effect on the 24 adult's death, is lost because of a sale or other dealing with the adult's 25 property by an administrator of the adult. 26 (2) This section applies even if the person whose benefit is lost is the 27 administrator by whose dealing the benefit is lost. 28 23 Section 19 (Comply with other tribunal requirement)

 


 

s 61 48 s 61 Guardianship and Administration (3) The person, or the person's personal representative, may apply to the 1 court24 for compensation out of the adult's estate. 2 (4) The court may order that the person, or the person's estate, be 3 compensated out of the adult's estate as the court considers appropriate, but 4 the compensation must not be more than the value of the lost benefit. 5 (5) The Succession Act 1981, sections 41(2) to (8), (10) and (11) and 44 6 apply to an application and an order made on it as if the application were an 7 application under part 4 of that Act 25 by a person entitled to make an 8 application. 9 HAPTER 5--HEALTH MATTERS AND SPECIAL 10 C HEALTH MATTERS 11 ART 1--PHILOSOPHY AND PURPOSE 12 P to achieve balance for health care 13 Purpose 61. This chapter seeks to strike a balance between-- 14 (a) ensuring an adult is not deprived of necessary health care only 15 because the adult has impaired capacity for a health matter or 16 special health matter; and 17 (b) ensuring health care given to the adult is only for promoting and 18 maintaining the adult's health and wellbeing.26 19 24 "Court" means the Supreme Court--see schedule 4 (Dictionary). 25 Succession Act 1981, sections 41 (Estate of deceased person liable for maintenance), 44 (Protection of personal representative) and part 4 (Family provision) 26 See also section 11 (Principles for adults with impaired capacity).

 


 

s 62 49 s 63 Guardianship and Administration ART 2--SCHEME FOR HEALTH CARE AND 1 P SPECIAL HEALTH CARE 2 Division 1--Health care--no consent 3 scope 4 Division's 62. This division deals with when health care, other than special health 5 care, may be carried out without consent. 6 health care 7 Urgent 63.(1) Health care, other than special health care, of an adult may be 8 carried out without consent if the adult's health provider considers-- 9 (a) the adult has impaired capacity for the health matter concerned; 10 and 11 (b) either-- 12 (i) the health care should be carried out urgently to meet 13 imminent risk to the adult's life or health; or 14 (ii) the health care should be carried out urgently to prevent 15 significant pain or distress to the adult and it is not 16 reasonably practicable to get consent from a person who 17 may give it under this Act or the Powers of Attorney Act 18 1998. 19 (2) However, the health care mentioned in subsection (1)(b)(i) may not 20 be carried out without consent if the health provider knows the adult objects 21 to the health care in an advance health directive.27 22 (3) However, the health care mentioned in subsection (1)(b)(ii) may not 23 be carried out without consent if the health provider knows the adult objects 24 to the health care unless-- 25 27 "Object" is defined in schedule 4 (Dictionary). Note also the Powers of Attorney Act 1998, sections 102 (Protection of health provider unaware of advance health directive) and 103 (Protection of health provider for non-compliance with advance health directive).

 


 

s 64 50 s 64 Guardianship and Administration (a) the adult has minimal or no understanding of 1 or both of the 1 following-- 2 (i) what the health care involves; 3 (ii) why the health care is required; and 4 (b) the health care is likely to cause the adult-- 5 (i) no distress; or 6 (ii) temporary distress that is outweighed by the benefit to the 7 adult of the health care. 8 (4) The health provider must certify in the adult's clinical records as to 9 the various things enabling the health care to be carried out because of this 10 section. 11 uncontroversial health care 12 Minor, 64.(1) Health care, other than special health care, of an adult may be 13 carried out without consent if the adult's health provider-- 14 (a) considers the adult has impaired capacity for the health matter 15 concerned; and 16 (b) considers the health care is-- 17 (i) necessary to promote the adult's health and wellbeing; and 18 (ii) of the type that will best promote the adult's health and 19 wellbeing; and 20 (iii) minor and uncontroversial; and 21 (c) does not know, and can not reasonably be expected to know, of-- 22 (i) a decision about the health care made by a person who is 23 able to make the decision under this Act or the Powers of 24 Attorney Act 1998; or 25 (ii) any dispute among persons the health provider considers 26 have a sufficient and continuing interest in the adult about-- 27 (A) the carrying out of the health care; or 28 (B) the capacity of the adult for the health matter. 29

 


 

s 65 51 s 66 Guardianship and Administration 1 Examples of minor and uncontroversial health care mentioned in paragraph (b)(iii)-- 2 · the administration of an antibiotic requiring a prescription 3 · the administration of a tetanus injection (2) However, the health care may not be carried out without consent if the 4 health provider knows, or could reasonably be expected to know, the adult 5 objects to the health care. 6 (3) The health provider must certify in the adult's clinical records as to 7 the various things enabling the health care to be carried out because of this 8 section. 9 Division 2--Health care and special health care--consent 10 with impaired capacity--order of priority in dealing with 11 Adult special health matter 12 65.(1) If an adult has impaired capacity for a special health matter, the 13 matter may only be dealt with under the first of the following subsections to 14 apply. 15 (2) If the adult has made an advance health directive giving a direction 16 about the matter, the matter may only be dealt with under the direction. 17 (3) If subsection (2) does not apply and an entity other than the tribunal is 18 authorised to deal with the matter, the matter may only be dealt with by the 19 entity. 20 (4) If subsections (2) and (3) do not apply and the tribunal has made an 21 order about the matter, the matter may only be dealt with under the order.28 22 with impaired capacity--order of priority in dealing with health 23 Adult matter 24 66.(1) If an adult has impaired capacity for a health matter, the matter 25 may only be dealt with under the first of the following subsections to apply. 26 28 However, the tribunal may not consent to electroconvulsive therapy or psychosurgery--section 68(1).

 


 

s 67 52 s 67 Guardianship and Administration (2) If the adult has made an advance health directive giving a direction 1 about the matter, the matter may only be dealt with under the direction. 2 (3) If subsection (2) does not apply and the tribunal has appointed 1 or 3 more guardians for the matter or made an order about the matter, the matter 4 may only be dealt with by the guardian or guardians or under the order.29 5 (4) If subsections (2) and (3) do not apply and the adult has made 1 or 6 more enduring documents appointing 1 or more attorneys for the matter, the 7 matter may only be dealt with by the attorney or attorneys for the matter 8 appointed by the most recent enduring document. 9 (5) If subsections (2) to (4) do not apply, the matter may only be dealt 10 with by the statutory health attorney. 11 of adult's objection to health care 12 Effect 67.(1) Generally, the exercise of power for a health matter or special 13 health matter is ineffective to give consent to health care of an adult if the 14 health provider knows, or ought reasonably to know, the adult objects to the 15 health care.30 16 (2) However, the exercise of power for a health matter or special health 17 matter is effective to give consent to the health care despite an objection by 18 the adult to the health care if-- 19 (a) the adult has minimal or no understanding of 1 of the following-- 20 (i) what the health care involves; 21 (ii) why the health care is required; and 22 (b) the health care is likely to cause the adult-- 23 29 If, when appointing the guardian or guardians, the tribunal was unaware of the existence of an enduring document giving power for the matter to an attorney, see section 23 (Appointment without knowledge of enduring document), particularly subsection (2). 30 "Object" is defined in schedule 4 (Dictionary). Note also the Powers of Attorney Act 1998, section 35(2)(a) (Advance health directives) provides that `by an advance health directive [a] principal may give a direction-- (a) consenting, in the circumstances specified, to particular future health care of the principal when necessary and despite objection by the principal when the health care is provided'.

 


 

s 68 53 s 69 Guardianship and Administration (i) no distress; or 1 (ii) temporary distress that is outweighed by the benefit to the 2 adult of the proposed health care. 3 (3) Subsection (2) does not apply to the following health care-- 4 (a) removal of tissue for donation; 5 (b) participation in special medical research or experimental health 6 care or approved clinical research; 7 (c) withholding or withdrawal of special life-sustaining measures. 8 ART 3--CONSENT TO SPECIAL HEALTH CARE 9 P health care 10 Special 68.(1) The tribunal may consent to special health care, other than 11 electroconvulsive therapy or psychosurgery, for an adult. 12 (2) To the extent another entity is authorised by an Act to make a decision 13 for an adult about prescribed special health care, the tribunal does not have 14 power to make the decision.31 15 of tissue 16 Donation 69.(1) The tribunal may consent, for an adult with impaired capacity for 17 the special health matter concerned, to removal of tissue from the adult for 18 donation to another person only if the tribunal is satisfied-- 19 (a) the risk to the adult is small; and 20 (b) the risk of failure of the donated tissue is low; and 21 31 For the application of the general principles and the health care principle to the tribunal and to an entity authorised by an Act to make a decision for an adult about prescribed special health care, see section 11 (Principles for adults with impaired capacity).

 


 

s 70 54 s 70 Guardianship and Administration (c) the life of the proposed recipient would be in danger without the 1 donation; and 2 (d) no other compatible donor is reasonably available; and 3 (e) there is, or has been, a close personal relationship between the 4 adult and proposed recipient. 5 (2) The tribunal may not consent if the adult objects32 to the removal of 6 tissue for donation. 7 (3) If the tribunal consents to removal of tissue for donation, the 8 tribunal's order must specify the proposed recipient. 9 10 Sterilisation 70.(1) The tribunal may consent, for an adult with impaired capacity for 11 the special health matter concerned, to sterilisation of the adult only if the 12 tribunal is satisfied-- 13 (a) one of the following applies-- 14 (i) the sterilisation is medically necessary; 15 (ii) the adult is, or is likely to be, sexually active and there is no 16 method of contraception that could reasonably be expected to 17 be successfully applied; 18 (iii) if the adult is female--the adult has problems with 19 menstruation and cessation of menstruation by sterilisation is 20 the only practicable way of overcoming the problems; and 21 (b) the sterilisation can not reasonably be postponed; and 22 (c) the adult is unlikely, in the foreseeable future, to have capacity for 23 decisions about sterilisation. 24 (2) Sterilisation is not medically necessary if the sterilisation is-- 25 (a) for eugenic reasons;33 or 26 32 Section 67 (which effectively enables an adult's objection to be overridden in some cases) does not apply. 33 Eugenics is `the science of improving the qualities of the human race, especially the careful selection of parents'--Macquarie Dictionary, 3rd edition, 1997.

 


 

s 71 55 s 72 Guardianship and Administration (b) to remove the risk of pregnancy resulting from sexual abuse. 1 (3) Also, in deciding whether to consent for the adult to a sterilisation 2 procedure, the tribunal must take into account-- 3 (a) alternative forms of health care, including other sterilisation 4 procedures, available or likely to become available in the 5 foreseeable future; and 6 (b) the nature and extent of short-term, or long-term, significant risks 7 associated with the proposed procedure and available alternative 8 forms of health care, including other sterilisation procedures. 9 (4) An adult's sterilisation, to which the tribunal has consented for the 10 adult, is not unlawful. 11 of pregnancy 12 Termination 71.(1) The tribunal may consent, for an adult with impaired capacity for 13 the special health matter concerned, to termination of the adult's pregnancy 14 only if the tribunal is satisfied the termination is necessary to preserve the 15 adult from serious danger to her life or physical or mental health. 16 (2) Termination of an adult's pregnancy, to which the tribunal has 17 consented for the adult, is not unlawful. 18 medical research or experimental health care 19 Special 72.(1) The tribunal may consent, for an adult with impaired capacity for 20 the special health matter concerned, to the adult's participation in special 21 medical research or experimental health care 34 relating to a condition the 22 adult has or to which the adult has a significant risk of being exposed only if 23 the tribunal is satisfied about the following matters-- 24 (a) the special medical research or experimental health care is 25 approved by an ethics committee; 26 34 "Special medical research or experimental health care" does not include-- (a) psychological research; or (b) approved clinical research--see schedule 2, section 12.

 


 

s 72 56 s 72 Guardianship and Administration (b) the risk and inconvenience to the adult and the adult's quality of 1 life is small; 2 (c) the special medical research or experimental health care may 3 result in significant benefit to the adult; 4 (d) the potential benefit can not be achieved in another way. 5 (2) The tribunal may consent, for an adult with impaired capacity for the 6 matter, to the adult's participation in special medical research or 7 experimental health care intended to gain knowledge that can be used in the 8 diagnosis, maintenance or treatment of a condition the adult has or has had 9 only if the tribunal is satisfied about the following matters-- 10 (a) the special medical research or experimental health care is 11 approved by an ethics committee; 12 (b) the risk and inconvenience to the adult and the adult's quality of 13 life is small; 14 (c) the special medical research or experimental health care may 15 result in significant benefit to the adult or other persons with the 16 condition; 17 (d) the special medical research or experimental health care can not 18 reasonably be carried out without a person who has or has had the 19 condition taking part; 20 (e) the special medical research or experimental health care will not 21 unduly interfere with the adult's privacy. 22 (3) The tribunal may not consent to the adult's participation in special 23 medical research or experimental health care if-- 24 (a) the adult objects35 to the special medical research or experimental 25 health care; or 26 (b) the adult, in an enduring document, indicated unwillingness to 27 participate in the special medical research or experimental health 28 care. 29 35 Section 67, which effectively enables an adult's objection to be overridden in some cases, does not apply.

 


 

s 73 57 s 75 Guardianship and Administration special health care 1 Prescribed 73.(1) Subject to section 68(2), the tribunal may consent, for an adult 2 with impaired capacity for the special health matter concerned, to the adult 3 having prescribed special health care. 4 (2) The tribunal may consent only if it is satisfied of the matters 5 prescribed under a regulation. 6 special health care for adult 7 Subsequent 74.(1) If the tribunal consents to special health care for an adult, the 8 tribunal may appoint 1 or more persons who are eligible for appointment as 9 a guardian or guardians for the adult and give the guardian or guardians 10 power to consent for the adult to-- 11 (a) continuation of the special health care; or 12 (b) the carrying out on the adult of similar special health care. 13 (2) The appointment order may include a declaration, order, direction, 14 recommendation, or advice about how the power given is to be used. 15 (3) The appointment order may be changed by the tribunal on its own 16 initiative or on the application of an interested person. 17 (4) In deciding whether to consent, a guardian must apply the general 18 principles and the health care principle. 19 ART 4--OTHER PROVISIONS ABOUT HEALTH 20 P CARE 21 of force 22 Use 75. A health provider and a person acting under the health provider's 23 direction or supervision may use the minimum force necessary and 24 reasonable to carry out health care authorised under this Act. 25

 


 

s 76 58 s 76 Guardianship and Administration providers to give information 1 Health 76.(1) The purpose of this section is to ensure-- 2 (a) a guardian or attorney who has power for a health matter for an 3 adult has all the information necessary to make an informed 4 exercise of the power; and 5 (b) the tribunal, in deciding whether to consent to special health care 6 for an adult with impaired capacity for a special health matter, has 7 all the information necessary to make an informed decision. 8 (2) At the guardian's or attorney's request, a health provider who is 9 treating the adult must give information to the guardian or attorney unless 10 the health provider has a reasonable excuse. 11 (3) At the tribunal's request, a health provider who is treating the adult 12 must give information to the tribunal unless the health provider has a 13 reasonable excuse. 14 (4) The information to be given includes information about the 15 following-- 16 (a) the nature of the adult's condition; 17 (b) the alternative forms of health care available, or likely to be 18 available in the foreseeable future, for the condition; 19 (c) the general nature and effect of each form of health care; 20 (d) the nature and extent of short-term, or long-term, significant risks 21 associated with each form of health care; 22 (e) the reasons why it is proposed a particular form of health care 23 should be carried out. 24 (5) If a health provider does not comply with a request by a guardian or 25 attorney to give information, the tribunal may, on application by the 26 guardian or attorney, order the health provider to give the information to the 27 guardian or attorney. 28 (6) If the tribunal orders a health provider to give information, the health 29 provider must comply with the order, unless the health provider has a 30 reasonable excuse. 31

 


 

s 77 59 s 78 Guardianship and Administration (7) It is a reasonable excuse for a health provider to fail to give 1 information because giving the information might tend to incriminate the 2 health provider. 3 (8) This section overrides-- 4 (a) any restriction, in an Act or the common law, about the disclosure 5 or confidentiality of information; and 6 (b) any claim of confidentiality or privilege. 7 (9) This section does not limit-- 8 (a) a guardian's right to information under section 44;36 or 9 (b) an attorney's right to information under the Powers of Attorney 10 Act 1998, section 81. 11 (10) In this section-- 12 "attorney" means an attorney under an enduring document or a statutory 13 health attorney. 14 of health provider 15 Protection 77.(1) To the extent a health provider giving health care to an adult 16 complies with a purported exercise of power for a health matter or special 17 health matter by a person who represented to the health provider that the 18 person had the right to exercise the power, the health provider is taken to 19 have the adult's consent to the exercise of power. 20 (2) Subsection (1) does not apply if the health provider knew, or could 21 reasonably be expected to have known, the person did not have the right to 22 exercise the power. 23 to exercise power for adult if no right to do so 24 Offence 78. It is an offence for a person who knows he or she has no right to 25 exercise power for a health matter or special health matter for an adult, or 26 who is recklessly indifferent about whether he or she has a right to exercise 27 power for a health matter or special health matter for the adult, to-- 28 36 Section 44 (Right of guardian or administrator to information)

 


 

s 79 60 s 79 Guardianship and Administration (a) purport to exercise power for a health matter or special health 1 matter for the adult; or 2 (b) represent to a health provider for the adult that the person has a 3 right to exercise power for a health matter or special health matter 4 for the adult. 5 Maximum penalty-- 6 (a) for special health matter--300 penalty units; or 7 (b) for health matter--200 penalty units. 8 to carry out health care unless authorised 9 Offence 79.(1) It is an offence for a person to carry out health care of an adult 10 with impaired capacity for the health matter concerned unless-- 11 (a) this or another Act provides the health care may be carried out 12 without consent;37 or 13 (b) consent to the health care is given under this or another Act; or 14 (c) the health care is authorised by an order of the court made in its 15 parens patriae jurisdiction.38 16 Maximum penalty-- 17 (a) if special health care is carried out--300 penalty units; or 18 37 See sections 63 (Urgent health care) and 64 (Minor, uncontroversial health care). 38 "Court" means the Supreme Court--see schedule 4 (Dictionary). The parens patriae jurisdiction is based on the need to protect those who lack the capacity to protect themselves. It allows the Supreme Court to appoint decision makers for people who, because of mental illness, intellectual disability, illness, accident or old age, are unable to adequately safeguard their own interests.

 


 

s 80 61 s 82 Guardianship and Administration (b) if other health care is carried out--200 penalty units. 1 (2) This section has effect despite the Criminal Code, section 282.39 2 less protection than if adult gave health consent 3 No 80. A person carrying out health care of an adult that is authorised by this 4 or another Act is not liable for an act or omission to any greater extent than 5 if the act or omission happened with the adult's consent and the adult had 6 capacity to consent. 7 CHAPTER 6--GUARDIANSHIP AND 8 ADMINISTRATION TRIBUNAL 9 PART 1--ESTABLISHMENT, FUNCTIONS AND 10 POWERS 11 12 Tribunal 81.(1) A Guardianship and Administration Tribunal is established. 13 (2) It consists of the president, deputy presidents and other members. 14 unctions 15 F 82.(1) The tribunal has the functions given to it by this Act, including the 16 following functions-- 17 39 The Criminal Code, section 282 provides as follows-- `Surgical operations `282. A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for the patient's benefit, or upon an unborn child for the preservation of the mother's life, if the performance of the operation is reasonable, having regard to the patient's state at the time and to all the circumstances of the case.'.

 


 

s 83 62 s 83 Guardianship and Administration (a) making declarations about the capacity of an adult, guardian, 1 administrator or attorney for a matter; 2 (b) considering applications for appointment of guardians and 3 administrators; 4 (c) appointing guardians and administrators if necessary and 5 reviewing the appointments; 6 (d) making declarations, orders or recommendations, or giving 7 directions or advice, in relation to the following-- 8 (i) guardians and administrators; 9 (ii) enduring documents and attorneys; 10 (iii) related matters; 11 (e) ratifying an exercise of power, or approving a proposed exercise 12 of power, for a matter by an informal decision maker for an adult 13 with impaired capacity for the matter; 14 (f) subject to section 68, consenting to special health care for adults 15 with impaired capacity for the special health matter concerned; 16 (g) registering an order made under an Act of the Commonwealth or 17 another State, or a law of a foreign jurisdiction, that is notified 18 under section 167; 19 (h) reviewing a matter in which a decision has been made by the 20 registrar. 21 (2) The tribunal also has the other functions given to it by another Act. 22 (3) In this section-- 23 "attorney" means an attorney under an enduring document or a statutory 24 health attorney. 25 26 Powers 83.(1) The tribunal has the powers given under this Act or another Act.40 27 40 See, for example, the Powers of Attorney Act 1998, section 109A (Guardianship and Administration Tribunal also has jurisdiction and powers about enduring documents).

 


 

s 84 63 s 85 Guardianship and Administration (2) The tribunal also may do all things necessary or convenient to be 1 done to perform the tribunal's functions. 2 3 Jurisdiction 84.(1) Subject to section 245,41 the tribunal has exclusive jurisdiction for 4 the appointment of guardians and administrators for adults with impaired 5 capacity for matters. 6 (2) The tribunal has concurrent jurisdiction with the court42 for enduring 7 documents and attorneys under enduring documents. 8 (3) The tribunal has the other jurisdiction given under this Act. 9 of the registrar to perform tribunal's functions and exercise 10 Powers tribunal's powers in prescribed non-contentious matters 11 85.(1) The registrar may perform the functions and exercise the powers 12 of the tribunal in relation to a prescribed non-contentious matter.43 13 (2) In exercising powers in relation to a prescribed non-contentious 14 matter-- 15 (a) subject to subsection (3), the registrar is not under the control or 16 direction of the Minister or any other entity; and 17 (b) the registrar is taken to be the presiding member; and 18 (c) anything done by the registrar is taken to have been done by the 19 tribunal. 20 (3) The president may direct the registrar to refer a particular prescribed 21 non-contentious matter to the tribunal. 22 (4) The registrar may refer a particular prescribed non-contentious matter 23 to the tribunal if the registrar considers it would be more appropriate for the 24 tribunal to deal with the matter. 25 41 Section 245 (Settlements or damages awards) 42 "Court" means the Supreme Court--see schedule 4 (Dictionary). 43 See section 99(3). For review of the registrar's decision, see part 7.

 


 

s 86 64 s 86 Guardianship and Administration ART 2--ADMINISTRATIVE PROVISIONS 1 P of president and deputy presidents 2 Appointment 86.(1) The Governor in Council must appoint a president and 1 or more 3 deputy presidents of the tribunal. 4 (2) An appointment may be on a full-time or part-time basis. 5 (3) The president and deputy presidents are members of the tribunal. 6 (4) A person is eligible for appointment as president only if the person is 7 a lawyer of at least 5 years standing whom the Minister considers has-- 8 (a) an appropriate understanding of issues about impaired capacity; 9 and 10 (b) appropriate experience in mediation or alternative dispute 11 resolution; and 12 (c) other knowledge or experience making the person appropriate to 13 be president. 14 (5) A person is eligible for appointment as a deputy president only if-- 15 (a) the person is a lawyer of at least 5 years standing whom the 16 Minister considers has-- 17 (i) appropriate experience in mediation or alternative dispute 18 resolution; and 19 (ii) other knowledge or experience making the person 20 appropriate to be a deputy president; or 21 (b) the Minister considers the person has-- 22 (i) extensive professional knowledge or experience of persons 23 with impaired capacity; and 24 (ii) other knowledge or experience making the person 25 appropriate to be a deputy president. 26 (6) A person ceases to be a tribunal member if the person ceases to be the 27 president or a deputy president. 28

 


 

s 87 65 s 90 Guardianship and Administration under Ministerial control 1 Not 87. In performing the president's functions and exercising the president's 2 powers, the president is not under the control or direction of the Minister. 3 may delegate to deputy president 4 President 88. The president may delegate the president's powers under this Act to a 5 deputy president. 6 7 Training 89. It is the duty of the president to ensure tribunal members are 8 adequately and appropriately trained to enable the tribunal to perform its 9 functions effectively and efficiently. 10 of other tribunal members 11 Appointment 90.(1) This section applies to members of the tribunal other than the 12 president or a deputy president. 13 (2) Tribunal members are to be appointed by the Governor in Council. 14 (3) An appointment may be on a full-time or part-time basis. 15 (4) A person is eligible for appointment as a tribunal member only if-- 16 (a) the person is a lawyer of at least 5 years standing whom the 17 Minister considers has-- 18 (i) appropriate experience in mediation or alternative dispute 19 resolution; and 20 (ii) other knowledge or experience making the person 21 appropriate to be a tribunal member; or 22 (b) the Minister considers the person has extensive professional 23 knowledge or experience of persons with impaired capacity for 24 matters; or 25 (c) the Minister considers the person has experience of a person with 26 impaired capacity for matters. 27

 


 

s 91 66 s 92 Guardianship and Administration (5) The importance of the membership of the tribunal reflecting, to the 1 greatest extent practicable, the social and cultural diversity of the general 2 community must be taken into account in appointing tribunal members. 3 4 Selection 91.(1) For selecting a person for recommendation for appointment as the 5 president, a deputy president or other tribunal member, the Minister must 6 advertise for applications from appropriately qualified persons to be 7 considered for selection. 8 (2) The Minister may recommend to the Governor in Council a person 9 for appointment as the president, a deputy president or other tribunal 10 member only if subsection (1) has been complied with for the appointment. 11 of appointment 12 Duration 92.(1) The president or a deputy president holds office for a term of not 13 longer than 5 years.44 14 (2) Another tribunal member holds office for a term of not longer than 15 3 years. 16 (3) The office of a tribunal member becomes vacant if the holder of the 17 office resigns by signed notice of resignation given to the Minister. 18 (4) The Governor in Council may remove a tribunal member from office 19 for-- 20 (a) physical or mental incapacity to satisfactorily perform official 21 duties; or 22 (b) neglect of duty; or 23 (c) dishonourable conduct; or 24 (d) being found guilty of an offence the Minister considers makes the 25 person inappropriate to perform official duties. 26 44 A person may be reappointed--see Acts Interpretation Act 1954, section 25(1)(c).

 


 

s 93 67 s 98 Guardianship and Administration of appointment 1 Terms 93.(1) A tribunal member is to be paid the remuneration and allowances 2 decided by the Governor in Council. 3 (2) To the extent this Act does not state the terms on which a tribunal 4 member holds office, the member holds office on the terms decided by the 5 Governor in Council. 6 of absence 7 Leave 94. The Minister may give a tribunal member leave of absence on the 8 terms the Minister considers appropriate. 9 appointment 10 Acting 95. The Governor in Council may appoint a person to act as president, a 11 deputy president or other tribunal member during any or all periods-- 12 (a) the office is vacant; or 13 (b) the president, a deputy president or other tribunal member is 14 absent from duty or, for another reason, is unable to perform the 15 duties of the office. 16 and staff 17 Registrar 96. The registrar of the tribunal, and other staff necessary to enable the 18 tribunal to perform its functions, are to be appointed under the Public 19 Service Act 1996. 20 of the registrar 21 Powers 97. The registrar has the powers given under this Act. 22 report 23 Annual 98.(1) As soon as practicable after the close of each financial year but not 24 later than 4 months after that close, the president must-- 25 (a) prepare a report on the tribunal's operations during the year; and 26

 


 

s 99 68 s 100 Guardianship and Administration (b) give a copy of the report to the Minister. 1 (2) The Minister must table a copy of the report in the Legislative 2 Assembly within 14 sitting days after the Minister receives the report. 3 CHAPTER 7--TRIBUNAL PROCEEDINGS 4 ART 1--GENERAL 5 P power 6 Rule-making 99.(1) The Governor in Council may make rules ("tribunal rules") 7 about the practices and procedure of the tribunal or the tribunal registry. 8 (2) A rule is subordinate legislation. 9 (3) Rules made under this section may specify non-contentious matters 10 that may be dealt with by the registrar ("prescribed non-contentious 11 matters"). 12 (4) The Minister must consult with the president about any proposed rule 13 changes. 14 business and approval of forms 15 Tribunal's 100.(1) The president is responsible for ensuring the quick and efficient 16 discharge of the tribunal's business. 17 (2) For example, the president may give directions ("presidential 18 directions") about-- 19 (a) the arrangement of the tribunal's business; and 20 (b) the members who are to constitute the tribunal for a particular 21 proceeding; and 22 (c) the places the tribunal is to sit; and 23 (d) the tribunal's procedure. 24

 


 

s 101 69 s 102 Guardianship and Administration (3) Directions under subsection (2) may be of general or limited 1 application. 2 (4) The president may approve forms for use in tribunal proceedings. 3 constituting tribunal 4 Members 101.(1) At a hearing, the tribunal must be constituted by 3 members 5 unless the president considers it appropriate for the proceeding to be heard 6 by a single member. 7 (2) To the extent practicable, the tribunal when constituted by 3 members 8 must include-- 9 (a) the president, a deputy president or a legal member; and 10 (b) a professional member; and 11 (c) a personal experience member. 12 (3) If the president considers it appropriate for a proceeding to be heard 13 by a single member-- 14 (a) the tribunal may be constituted by a legal member or a 15 professional member; and 16 (b) the single member is taken to be the presiding member. 17 member 18 Presiding 102.(1) This section applies if the tribunal is constituted by 3 members 19 for a hearing. 20 (2) If the tribunal includes the president, the president presides at the 21 hearing. 22 (3) If the tribunal does not include the president but includes 1 deputy 23 president, the deputy president presides at the hearing. 24 (4) If, apart from this subsection, the application of subsections (2) and 25 (3) does not decide who is to preside at a hearing, the tribunal member 26 directed to preside by the president presides. 27

 


 

s 103 70 s 105 Guardianship and Administration from hearing 1 Disqualification 103.(1) This section applies if-- 2 (a) a tribunal member has a personal interest, or a direct or indirect 3 financial interest, in a matter before the tribunal; and 4 (b) the interest could conflict with the proper performance of the 5 member's duties on the matter. 6 (2) If this section applies for the president, the president must give 7 written notice of the nature of the interest to a deputy president as soon as 8 practicable after the relevant facts come to the president's attention. 9 (3) If this section applies for a deputy president or other tribunal member, 10 the tribunal member must give written notice of the nature of the interest to 11 the president as soon as practicable after the relevant facts come to the 12 member's attention. 13 (4) The member giving notice must not-- 14 (a) be present when the tribunal considers the matter; or 15 (b) take part in a tribunal decision about the matter. 16 (5) Subsection (4) does not apply to the member giving notice if the 17 person to whom notice is given decides the interest is not of a material 18 nature. 19 procedure to be decided 20 Way 104. In a proceeding before the tribunal, procedure is within the presiding 21 member's discretion if it is not provided for by-- 22 (a) this Act; or 23 (b) tribunal rules; or 24 (c) presidential directions. 25 question of law to be decided 26 Way 105.(1) A question of law arising in a proceeding before the tribunal is to 27 be decided according to the presiding member's opinion. 28

 


 

s 106 71 s 108 Guardianship and Administration (2) If the presiding member is not a lawyer and the tribunal as constituted 1 for a hearing includes 1 lawyer, it must be decided by the lawyer. 2 (3) If the presiding member is not a lawyer and the tribunal as constituted 3 for a hearing includes 2 lawyers, it must be decided by the lawyer 4 authorised by the president to decide questions of law arising in the 5 proceeding. 6 (4) If the tribunal as constituted for a hearing does not include a lawyer, 7 the presiding member must-- 8 (a) adjourn the hearing and obtain advice from a lawyer about the 9 question; and 10 (b) decide the question in accordance with the advice. 11 other question to be decided 12 Way 106. If the members constituting the tribunal for a particular proceeding 13 are divided in opinion about the decision to be made on a question (other 14 than a question of law)-- 15 (a) if there is a majority of the same opinion--the question is decided 16 according to the majority opinion; or 17 (b) otherwise--the question is decided according to the opinion of the 18 presiding member. 19 20 Informal 107.(1) A proceeding before the tribunal must be conducted as simply 21 and quickly as the requirements of this Act and an appropriate consideration 22 of the matters before the tribunal allow. 23 (2) The tribunal is not bound by the rules of evidence and may inform 24 itself on a matter in a way it considers appropriate. 25 fairness 26 Procedural 108.(1) The tribunal must observe the rules of procedural fairness. 27 (2) Each active party in a proceeding must be given a reasonable 28 opportunity to present the active party's case and, in particular, to inspect a 29

 


 

s 109 72 s 109 Guardianship and Administration document to which the tribunal proposes to have regard in reaching a 1 decision in the proceeding and to make submissions about the document. 2 (3) However, the tribunal may displace the right to inspect in a 3 confidentiality order.45 4 5 Open 109.(1) Generally, a hearing by the tribunal of a proceeding must be in 6 public. 7 (2) However, if the tribunal is satisfied it is desirable to do so because of 8 the confidential nature of particular information or matter or for another 9 reason, the tribunal may, by order (a "confidentiality order")-- 10 (a) give directions about the persons who may or may not be present; 11 and 12 (b) direct a hearing or part of a hearing take place in private; and 13 (c) give directions prohibiting or restricting the publication of 14 information given before the tribunal, whether in public or in 15 private, or of matters contained in documents filed with, or 16 received by, the tribunal; and 17 (d) give directions prohibiting or restricting the disclosure to some or 18 all of the active parties in a proceeding of-- 19 (i) information given before the tribunal; or 20 (ii) matters contained in documents filed with, or received by, 21 the tribunal; or 22 (iii) subject to subsection (3), the tribunal's decision or reasons. 23 (3) The tribunal may make a confidentiality order prohibiting or 24 restricting disclosure of the tribunal's decision or reasons to the adult 25 concerned only if the tribunal considers disclosure to the adult might be 26 prejudicial to the physical or mental health or wellbeing of the adult. 27 45 Section 109(2)(d) allows the tribunal to impose a prohibition or restriction on inspection of a document if this is desirable because of its confidential nature or for another reason.

 


 

s 110 73 s 110 Guardianship and Administration (4) In a proceeding to obtain the tribunal's consent to special health care 1 for an adult, the tribunal may not make a confidentiality order that is likely 2 to affect the ability of any of the following persons to form and express a 3 considered view about the special health care-- 4 (a) a guardian for the adult; 5 (b) an attorney for a health matter for the adult under an enduring 6 document; 7 (c) the statutory health attorney for the adult. 8 (5) The tribunal may make a confidentiality order on its own initiative or 9 on the application of an active party. 10 (6) A person must not contravene a confidentiality order, unless the 11 person has a reasonable excuse. 12 Maximum penalty--200 penalty units. 13 directions 14 Procedural 110.(1) Directions about the procedure to be followed for a proceeding 15 may be given-- 16 (a) if the directions are of general application or apply to a class of 17 proceeding--by the president; or 18 (b) if the directions apply to a particular proceeding that has 19 started--by the president or presiding member. 20 (2) Without limiting subsection (1), a procedural direction may-- 21 (a) join a person as a party to a proceeding before the tribunal; or 22 (b) engage a person with appropriate knowledge or experience, 23 including, for example, a person with appropriate communication 24 skills or appropriate cultural or social knowledge or experience, to 25 help the tribunal in a proceeding; or 26

 


 

s 111 74 s 111 Guardianship and Administration (c) require a person to undergo examination by a doctor or 1 psychologist in the ordinary course of the doctor's medical 2 practice or the psychologist's practice;46 or 3 (d) require the person the subject of the proceeding to be brought 4 before the tribunal; or 5 (e) require a person to prepare and produce a report or document to 6 be given to the tribunal. 7 (3) A procedural direction may be changed or revoked by a person who 8 has power to give the direction. 9 (4) A person must comply with a procedural direction, unless the person 10 has a reasonable excuse. 11 (5) It is a reasonable excuse for a person to fail to prepare and produce a 12 report or document if the report or document might tend to incriminate the 13 person. 14 (6) The tribunal must pay the amount prescribed under a regulation for-- 15 (a) help given by a person engaged, or a doctor or psychologist 16 giving an examination, under this section; or 17 (b) preparation and production of a report or document required 18 under this section. 19 (7) In this section-- 20 "psychologist" see Psychologists Act 1977, section 4.47 21 of technology 22 Use 111.(1) The tribunal may allow a person to take part in a proceeding by 23 using any technology allowing reasonably contemporaneous and continuous 24 communication between persons taking part in the proceeding. 25 46 A "doctor" is a person registered as a medical practitioner and whose name remains on the register of medical practitioners, Queensland--see Acts Interpretation Act 1954, section 36 and Medical Act 1939, section 4. 47 A "psychologist" is a person registered as a psychologist and whose name remains on the register--Psychologists Act 1977, section 4.

 


 

s 112 75 s 112 Guardianship and Administration (2) A person who takes part in a proceeding under subsection (1) is taken 1 to have attended in person at the proceeding. 2 about proceeding or disclosure of identity 3 Publication 112.(1) If the tribunal is satisfied publication of information about a 4 proceeding is in the public interest, the tribunal may, by order, permit 5 publication of the information. 6 (2) If the tribunal is satisfied publication of the identity of a person 7 involved in a proceeding is in the public interest, the tribunal may, by order, 8 permit disclosure of the person's identity. 9 (3) A person must not, without reasonable excuse, publish information 10 about a proceeding, or disclose the identity of a person involved in a 11 proceeding, unless the tribunal has, by order, permitted the publication or 12 disclosure. 13 Maximum penalty--200 penalty units. 14 (4) In this section-- 15 "information", about a proceeding, includes-- 16 (a) information given before the tribunal; and 17 (b) matters contained in documents filed with, or received by, the 18 tribunal; and 19 (c) the tribunal's decision or reasons. 20 "involved", in a proceeding, includes-- 21 (a) making an application in the proceeding to the tribunal; and 22 (b) being a person about whom an application is made in a 23 proceeding; and 24 (c) being an active party for the proceeding; and 25 (d) giving information or documents to a person who is performing a 26 function under this Act relevant to the proceeding; and 27 (e) appearing as a witness at the hearing of the proceeding. 28

 


 

s 113 76 s 116 Guardianship and Administration 1 Location 113. A proceeding before the tribunal or a part of the proceeding may be 2 conducted at any place in Queensland. 3 filing fee payable 4 No 114. A fee is not payable to the tribunal for making an application, or 5 filing another document, under this Act. 6 ART 2--APPLICATIONS 7 P of applications 8 Scope 115.(1) An application may be made to the tribunal for a declaration, 9 order, direction, recommendation or advice in relation to an adult about 10 something in, or related to, this Act or the Powers of Attorney Act 1998. 11 (2) The application may be made by-- 12 (a) the adult concerned; or 13 (b) unless this Act or the Powers of Attorney Act 1998 states 14 otherwise--another interested person. 15 ow to apply 16 H 116.(1) Unless the tribunal directs otherwise, an application must be-- 17 (a) written; and 18 (b) signed by the applicant; and 19 (c) filed with the tribunal. 20 (2) The application must include the following-- 21 (a) the reasons for the application; 22 (b) to the best of the applicant's knowledge, information about the 23 following persons-- 24

 


 

s 116 77 s 116 Guardianship and Administration (i) the applicant; 1 (ii) if the applicant is not the adult concerned in the 2 application--the adult; 3 (iii) the members of the adult's family; 4 (iv) any primary carer of the adult; 5 (v) all current guardians, administrators and attorneys for the 6 adult; 7 (c) other information relevant to an application that is prescribed 8 under a regulation. 9 (3) The information required under subsection (2)(b) is to enable the 10 tribunal to give notice of the hearing and must consist of-- 11 (a) each person's name; and 12 (b) either-- 13 (i) details the applicant knows of the person's address and 14 telephone and facsimile number; or 15 (ii) if the applicant does not know the details--a way known to 16 the applicant of contacting the person. 17 (4) In this section-- 18 "attorney" means-- 19 (a) an attorney under a power of attorney; or 20 (b) an attorney under an advance health directive or similar document 21 under the law of another jurisdiction. 22 "power of attorney" means-- 23 (a) a general power of attorney made under the Powers of Attorney 24 Act 1998; or 25 (b) an enduring power of attorney; or 26 (c) a power of attorney made otherwise than under the Powers of 27 Attorney Act 1998, whether before or after its commencement; or 28 (d) a similar document under the law of another jurisdiction. 29

 


 

s 117 78 s 118 Guardianship and Administration for appointment of guardian or administrator 1 Application 117. An application for appointment of a guardian or administrator must 2 include the proposed appointee's written agreement to the appointment. 3 advises persons concerned of hearing 4 Tribunal 118.(1) At least 14 days before the hearing of an application about a 5 matter, the tribunal must give notice of the hearing to the adult concerned in 6 the matter and, as far as practicable, to the following-- 7 (a) if the adult concerned is not the applicant--the applicant; 8 (b) the members of the adult's family; 9 (c) any primary carer of the adult; 10 (d) all current guardians, administrators and attorneys for the adult; 11 (e) the adult guardian; 12 (f) the public trustee; 13 (g) anyone else the tribunal considers should be notified. 14 (2) Notice to the adult must be given in the way the tribunal considers 15 most appropriate having regard to the person's needs. 16 (3) However, the adult's failure to understand the notice does not affect 17 its validity. 18 (4) The tribunal may, by direction under section 11048-- 19 (a) dispense with the requirement to give notice to all or any of the 20 persons mentioned in subsection (1)(a) to (g); and 21 (b) reduce the time stated in subsection (1). 22 (5) Failure to comply with the requirement to give notice to the adult 23 invalidates a hearing and the tribunal's decision about an application. 24 (6) Failure to comply with the requirement to give notice to all or any of 25 the persons mentioned in subsection (1)(a) to (g) does not affect the validity 26 of a hearing or the tribunal's decision about an application. 27 (7) In this section-- 28 48 Section 110 (Procedural directions)

 


 

s 119 79 s 120 Guardianship and Administration "attorney" means-- 1 (a) an attorney under a power of attorney; or 2 (b) an attorney under an advance health directive or similar document 3 under the law of another jurisdiction. 4 "power of attorney" means-- 5 (a) a general power of attorney made under the Powers of Attorney 6 Act 1998; or 7 (b) an enduring power of attorney; or 8 (c) a power of attorney made otherwise than under the Powers of 9 Attorney Act 1998, whether before or after its commencement; or 10 (d) a similar document under the law of another jurisdiction. 11 is an "active party" 12 Who 119. Each of the following persons is an active party for a proceeding-- 13 (a) the adult concerned; 14 (b) if the adult concerned is not the applicant--the applicant; 15 (c) another person given notice under section 118 who gives notice to 16 the tribunal of the person's intention to be an active party in the 17 proceeding; 18 (d) a person joined as a party to the proceeding by the tribunal. 19 of intention to be an active party 20 Notice 120.(1) A person given notice under section 118 may give notice to the 21 tribunal of the person's intention to be an active party in the proceeding. 22 (2) The notice must be given at least 3 business days before the hearing 23 of the application. 24 (3) However, the tribunal may, at any time, give a person who was given 25 notice under section 118 leave to be an active party. 26

 


 

s 121 80 s 123 Guardianship and Administration if unaware of invalidity 1 Protection 121.(1) A person appointed as a guardian or administrator for an adult by 2 an invalid tribunal order who, without knowing of the order's invalidity, 3 purports to use power given by the order does not incur any liability, either 4 to the adult or anyone else, because of the invalidity. 5 (2) A transaction between-- 6 (a) a person appointed as guardian or administrator by an invalid 7 tribunal order; and 8 (b) a person who does not know of the invalidity; 9 is, in favour of the second person, as valid as if the tribunal order were 10 valid. 11 (3) In this section-- 12 "know", of a tribunal order's invalidity, includes have reason to believe 13 notice of the hearing of an application was not given to the adult as 14 required. 15 of application 16 Withdrawal 122.(1) An applicant may withdraw an application by filing with the 17 tribunal a notice of withdrawal.49 18 (2) If a notice of withdrawal is filed, the tribunal must give notice of the 19 withdrawal to each active party. 20 ART 3--PARTICIPATION 21 P of active party to appear 22 Right 123.(1) An active party in a proceeding before the tribunal may appear in 23 person. 24 49 Note that the tribunal may make an order appointing a guardian or administrator on its own initiative--section 12(3).

 


 

s 124 81 s 126 Guardianship and Administration (2) If the active party is a corporation, the corporation may appear 1 through an officer of the corporation. 2 may be used with tribunal's leave 3 Representative 124.(1) An active party may, with the tribunal's leave, be represented by 4 a lawyer or agent. 5 (2) A person given notice to attend at a hearing to give evidence or 6 produce things may, with the tribunal's leave, be represented by a lawyer or 7 agent. 8 may be appointed 9 Representative 125.(1) If, in a proceeding before the tribunal-- 10 (a) the adult concerned in the proceeding is not represented in the 11 proceeding; or 12 (b) the adult is represented in the proceeding by an agent the president 13 or presiding member considers to be inappropriate to represent 14 the adult's interests; 15 the president or the presiding member may appoint a representative to 16 represent the adult's views, wishes and interests. 17 (2) A proceeding may be adjourned to allow the appointment to be made. 18 to decide who are interested persons 19 Tribunal 126.(1) If necessary, the tribunal may decide whether a person is an 20 interested person for another person under this Act or the Powers of 21 Attorney Act 1998.50 22 (2) If the tribunal decides a person is not an interested person for the 23 other person and the person asks for the tribunal's reasons, the tribunal 24 must give the person written reasons for its decision. 25 50 See "interested person"--schedule 4 (Dictionary).

 


 

s 127 82 s 129 Guardianship and Administration (3) This section does not limit a court's power to decide whether a person 1 is an interested person for another person under the Powers of Attorney Act 2 1998. 3 osts 4 C 127.(1) Each party in a proceeding is to bear the party's own costs of the 5 proceeding. 6 (2) However, the tribunal may order an applicant to pay an active party's 7 costs and the costs of the tribunal in exceptional circumstances, including, 8 for example, if the tribunal considers the application is frivolous or 9 vexatious. 10 PART 4--PROCEEDING 11 may stay decision pending hearing 12 Tribunal 128.(1) If a person applies to the tribunal in relation to a decision for an 13 adult about a matter, the person may also apply to the tribunal for a stay of 14 the decision. 15 (2) The tribunal may, by order, stay the decision to secure the 16 effectiveness of the application. 17 (3) A stay-- 18 (a) may be given on the terms the tribunal considers appropriate; and 19 (b) operates for the period specified by the tribunal. 20 (4) The period of a stay must not extend past the time when the tribunal 21 decides the application. 22 (5) The tribunal may amend or revoke its order staying a decision. 23 order 24 Interim 129.(1) If the tribunal is satisfied urgent action is required, it may make 25 an interim order in a proceeding without hearing and deciding the 26

 


 

s 130 83 s 132 Guardianship and Administration proceeding or otherwise complying with the requirements of this Act, 1 including section 118.51 2 (2) An interim order may not include consent to special health care. 3 (3) An interim order has effect for the period specified in the order. 4 (4) The maximum period that may be specified in an interim order is 5 28 days. 6 (5) An interim order may be renewed. 7 (6) In this section-- 8 "tribunal" means the tribunal constituted by the president, a deputy 9 president, a legal member or the registrar. 10 to ensure it has all relevant information and material 11 Tribunal 130. To hear and decide a matter in a proceeding, the tribunal must 12 ensure, as far as it considers it practicable, it has all the relevant information 13 and material. 14 may proceed without further information 15 Tribunal 131.(1) If the tribunal considers urgent or special circumstances justify it 16 doing so, the tribunal may proceed to decide a matter on the information 17 before it without receiving further information. 18 (2) If all the active parties in a proceeding agree, the tribunal may also 19 proceed to decide a matter in the proceeding on the information before it 20 when the agreement was reached without receiving further information. 21 (3) Before the active parties agree, the tribunal must ensure they are 22 aware of the material on which the matter will be decided. 23 may proceed in absence of an active party 24 Tribunal 132. The tribunal may proceed in the absence of an active party who has 25 had reasonable notice of a proceeding. 26 51 Section 118 (Tribunal advises persons concerned of hearing)

 


 

s 133 84 s 135 Guardianship and Administration may adjourn proceeding 1 Tribunal 133. The tribunal may adjourn a proceeding. 2 by tribunal staff 3 Report 134.(1) The tribunal may-- 4 (a) receive in evidence in a proceeding a written report by tribunal 5 staff on a matter in the proceeding; and 6 (b) have regard to the report. 7 (2) Generally, if the tribunal receives the report in evidence in a 8 proceeding, the adult concerned in the proceeding and each other active party 9 in the proceeding must be-- 10 (a) advised of the contents of the report; and 11 (b) upon request, given a copy of the report. 12 (3) However, the right to be given a copy may be displaced in a 13 confidentiality order.52 14 15 Witnesses 135.(1) The tribunal may receive evidence on oath or affirmation, by 16 statutory declaration or in another way. 17 (2) In a proceeding, the president or the presiding member for a hearing 18 may, by written notice given to a person, require the person to attend the 19 hearing at a stated time and place to give evidence or produce stated 20 documents or things. 21 (3) The presiding member at a hearing-- 22 (a) may require a witness at the hearing either to take an oath or make 23 an affirmation; and 24 (b) may administer an oath or affirmation to a witness at the hearing; 25 and 26 52 Section 109(2) allows the tribunal to impose a prohibition or restriction on access to a report if this is desirable because of the report's confidential nature or for another reason.

 


 

s 136 85 s 137 Guardianship and Administration (c) for participation under section 111(1)53--may make the 1 arrangements the member considers appropriate in the 2 circumstances for administering an oath or affirmation to a 3 witness. 4 (4) The presiding member may allow a witness at the hearing to give 5 information by tendering a written statement, verified, if the member 6 directs, by oath or affirmation. 7 fees and expenses 8 Witness 136.(1) The tribunal may make an order as to fees and expenses to be 9 paid to a witness. 10 (2) The fees and expenses ordered must not be more than the fees and 11 expenses allowable under the Uniform Civil Procedure Rules 1999 if the 12 witness were appearing as a witness in the Magistrates Court. 13 (3) In this section-- 14 "witness" means a person attending in person at a proceeding under this 15 Act or the Powers of Attorney Act 1998 and includes an interpreter 16 required to interpret the evidence of a witness to the tribunal. 17 by witnesses 18 Offences 137.(1) A person given notice under section 135(2) must not, unless the 19 person has a reasonable excuse-- 20 (a) fail54 to attend as required by the notice; or 21 (b) fail to continue to attend as required by the presiding member at 22 the hearing until excused from further attendance. 23 Maximum penalty--100 penalty units. 24 (2) A witness at a hearing must take an oath or make an affirmation or 25 statutory declaration when required by the presiding member. 26 Maximum penalty--100 penalty units. 27 53 Section 111 (Use of technology) 54 "Fail" includes refuse--see Acts Interpretation Act 1954, section 36.

 


 

s 137 86 s 137 Guardianship and Administration (3) Also, a witness at a hearing must not, unless the person has a 1 reasonable excuse-- 2 (a) fail to answer a question the person is required to answer by the 3 presiding member; or 4 (b) fail to produce a document or thing the person is required to 5 produce by a notice under section 135(2). 6 Maximum penalty--100 penalty units. 7 (4) It is not a reasonable excuse for a person to fail to answer a question 8 because answering the question might tend to incriminate the person. 9 (5) It is not a reasonable excuse for a person to fail to produce a 10 document or thing because producing the document or thing might tend to 11 incriminate the person. 12 (6) However, evidence directly or indirectly derived from a person's 13 answer that might tend to incriminate the person, or from a person's 14 production of a document or thing that might tend to incriminate the person, 15 is not admissible in evidence against the person in a civil or criminal 16 proceeding, other than-- 17 (a) a proceeding for an offence against section 140, 141 or 14255 or 18 another offence about the falsity of the answer, document or 19 thing; or 20 (b) if the answer or production is relevant to the person's 21 employment--a proceeding brought by or for the person against 22 the person's employer; or 23 (c) if the answer or production is relevant to the person's professional 24 registration or licence--a proceeding about the registration, licence 25 or approval; or 26 (d) if the answer or production is relevant to the person's registration, 27 licence or approval as proprietor or operator of a service or facility 28 involved in the care of adults with impaired capacity for a 29 matter--a proceeding about the registration, licence or approval. 30 55 Section 140 (False or misleading statements), 141 (False or misleading documents) or 142 (Influencing participants)

 


 

s 138 87 s 138 Guardianship and Administration directions and recommendations 1 Advice, 138.(1) Once an application about a matter has been made to the tribunal, 2 the tribunal may-- 3 (a) give advice or directions about the matter it considers appropriate; 4 or 5 (b) make recommendations it considers appropriate about action an 6 active party should take. 7 (2) If the tribunal gives advice or a direction or makes a recommendation, 8 it may also-- 9 (a) continue with the application; or 10 (b) adjourn the application; or 11 (c) dismiss the application. 12 (3) The tribunal may also give leave for an active party to apply to the 13 tribunal for directions about implementing the recommendation. 14 (4) A guardian, administrator or attorney who acts under the tribunal's 15 advice, directions or recommendations is taken to have complied with this 16 Act or the Powers of Attorney Act 1998 unless the person knowingly gave 17 the tribunal false or misleading information relevant to the tribunal's advice, 18 directions or recommendations. 19 (5) If the tribunal gives directions to a guardian, administrator or attorney, 20 the person must comply with them, unless the person has a reasonable 21 excuse. 22 (6) In this section-- 23 "attorney" means-- 24 (a) an attorney under a power of attorney; or 25 (b) an attorney under an advance health directive; or 26 (c) a statutory health attorney. 27 "power of attorney" means-- 28 (a) a general power of attorney made under the Powers of Attorney 29 Act 1998; or 30 (b) an enduring power of attorney; or 31

 


 

s 139 88 s 141 Guardianship and Administration (c) a power of attorney made otherwise than under the Powers of 1 Attorney Act 1998, whether before or after its commencement. 2 evidence 3 Fabricating 139. The tribunal is a tribunal for the Criminal Code, section 126.56 4 or misleading statements 5 False 140.(1) A person must not state anything to the tribunal, registrar or 6 another tribunal staff member the person knows is false or misleading in a 7 material particular. 8 Maximum penalty--100 penalty units. 9 (2) It is enough for a complaint for an offence against subsection (1) to 10 state the statement made was `false or misleading' to the person's 11 knowledge, without stating which. 12 or misleading documents 13 False 141.(1) A person must not give the tribunal, registrar or another tribunal 14 staff member a document containing information the person knows is false 15 or misleading in a material particular. 16 Maximum penalty--100 penalty units. 17 (2) Subsection (1) does not apply to a person if the person, when giving 18 the document-- 19 56 The Criminal Code, section 126 provides as follows-- `Fabricating evidence `126.(1) Any person who, with intent to mislead any tribunal in any judicial proceeding-- (a) fabricates evidence by any means other than perjury or counselling or procuring the commission of perjury; or (b) knowingly makes use of such fabricated evidence; is guilty of a crime, and is liable to imprisonment for 7 years.'.

 


 

s 142 89 s 144 Guardianship and Administration (a) tells the tribunal, registrar or other tribunal staff member, to the 1 best of the person's ability, how it is false or misleading; and 2 (b) if the person, has, or can reasonably obtain, the correct 3 information--gives the correct information. 4 (3) It is enough for a complaint against a person for an offence against 5 subsection (1) to state the document was `false or misleading' to the 6 person's knowledge, without stating which. 7 participants 8 Influencing 142. A person must not improperly influence a person in relation to the 9 person's participation in a proceeding, whether as a tribunal member, an 10 active party or a witness, to act other than in the course of the person's duty 11 in relation to the proceeding. 12 Maximum penalty--100 penalty units. 13 of tribunal 14 Contempt 143. A person must not, without reasonable excuse-- 15 (a) insult a tribunal member in relation to the performance of the 16 member's functions as a tribunal member; or 17 (b) interrupt a tribunal proceeding; or 18 (c) create a disturbance, or take part in creating or continuing a 19 disturbance, in or near a place the tribunal is sitting; or 20 (d) do anything that would, if the tribunal were a court of record, be a 21 contempt of court. 22 Maximum penalty--100 penalty units. 23 tribunal 24 Obstructing 144.(1) A person must not obstruct or improperly influence the conduct 25 of a tribunal proceeding or attempt to do so. 26 Maximum penalty--100 penalty units. 27 (2) In this section-- 28

 


 

s 145 90 s 146 Guardianship and Administration "influence" includes attempt to influence. 1 "obstruct" includes hinder, resist and attempt to obstruct. 2 of tribunal members, representatives and witnesses 3 Protection 145.(1) In the performance or exercise of a tribunal member's functions 4 or powers, the member has the same protection and immunity as a 5 Supreme Court judge has in the performance or exercise of the judge's 6 functions or powers. 7 (2) A person representing a party in a tribunal proceeding has the same 8 protection and immunity as a barrister appearing for a party in a proceeding 9 in the Supreme Court. 10 (3) A person given notice under section 13557 or appearing at a tribunal 11 proceeding has the same protection and immunity as a witness in a 12 proceeding in the Supreme Court. 13 PART 5--PARTICULAR PROCEEDINGS OR 14 ORDERS 15 1--Declaration about capacity 16 Division about capacity 17 Declaration 146.(1) The tribunal may make a declaration about the capacity of an 18 adult, guardian, administrator or attorney for a matter. 19 (2) The tribunal may do this on its own initiative or on the application of 20 the individual or another interested person. 21 (3) In deciding whether an individual is capable of communicating 22 decisions in some way,58 the tribunal must investigate the use of all 23 57 Section 135 (Witnesses) 58 See definition "capacity"--schedule 4 (Dictionary).

 


 

s 147 91 s 148 Guardianship and Administration reasonable ways of facilitating communication, including, for example, 1 symbol boards or signing. 2 (4) In this section-- 3 "attorney" means-- 4 (a) an attorney under a power of attorney; or 5 (b) an attorney under an advance health directive; or 6 (c) a statutory health attorney. 7 "power of attorney" means-- 8 (a) a general power of attorney made under the Powers of Attorney 9 Act 1998; or 10 (b) an enduring power of attorney; or 11 (c) a power of attorney made otherwise than under the Powers of 12 Attorney Act 1998, whether before or after its commencement. 13 of declaration about capacity to enter contract 14 Effect 147. A declaration about whether a person had capacity to enter a contract 15 is, in a subsequent proceeding in which the validity of the contract is in 16 issue, evidence about the person's capacity. 17 Division 2--Entry and removal warrant 18 for entry and removal warrant 19 Application 148.(1) An application by the adult guardian for a warrant to enter a place 20 and to remove an adult must be sworn and state the grounds on which the 21 warrant is sought. 22 (2) Sections 116 and 11859 do not apply to the application and the tribunal 23 may issue a warrant without notice of the application having been given to 24 the adult or any other person. 25 59 Sections 116 (How to apply) and 118 (Tribunal advises persons concerned of hearing)

 


 

s 149 92 s 150 Guardianship and Administration (3) The tribunal may refuse to consider the application until the adult 1 guardian gives the tribunal all the information the tribunal requires about the 2 application in the way the tribunal requires. 3 4 Example-- 5 The tribunal may require additional information supporting the application be 6 given by statutory declaration. of entry and removal warrant 7 Issue 149.(1) The tribunal may issue a warrant only if the tribunal is satisfied 8 there are reasonable grounds for suspecting there is an immediate risk of 9 harm, because of neglect (including self neglect), exploitation or abuse, to an 10 adult with impaired capacity for a matter. 11 (2) The warrant must state-- 12 (a) that the adult guardian may, with necessary and reasonable help 13 and force, enter the place, and any other place necessary for entry, 14 and remove the adult; and 15 (b) that the adult guardian may ask a police officer to help in the 16 exercise of the adult guardian's powers under the warrant; and 17 (c) the hours of the day or night when the place may be entered; and 18 (d) the date, within 14 days after the warrant's issue, the warrant 19 ends. 20 of occupier if entry and removal warrant 21 Role 150.(1) The adult guardian may require the occupier of the place or 22 another person at the place to help in the exercise of the adult guardian's 23 powers under the warrant. 24 (2) When making the requirement, the adult guardian must warn that it is 25 an offence to fail to comply with the requirement, unless a person has a 26 reasonable excuse. 27 (3) A person required to give reasonable help must comply with the 28 requirement, unless the person has a reasonable excuse. 29 Maximum penalty for subsection (3)--100 penalty units. 30

 


 

s 151 93 s 152 Guardianship and Administration requirement after removal of adult 1 Reporting 151.(1) As soon as practicable after the adult has been removed under the 2 warrant, the adult guardian must apply to the tribunal for the orders the adult 3 guardian considers appropriate about the following-- 4 (a) the adult's personal welfare; 5 (b) a power of attorney or advance health directive of the adult; 6 (c) a guardian, administrator or attorney of the adult. 7 (2) In this section-- 8 "attorney" means-- 9 (a) an attorney under a power of attorney; or 10 (b) an attorney under an advance health directive; or 11 (c) a statutory health attorney. 12 "power of attorney" means-- 13 (a) a general power of attorney made under the Powers of Attorney 14 Act 1998; or 15 (b) an enduring power of attorney; or 16 (c) a power of attorney made otherwise than under the Powers of 17 Attorney Act 1998, whether before or after its commencement. 18 3--Miscellaneous 19 Division authorisation or approval 20 Tribunal 152.(1) The tribunal may authorise a conflict transaction, a type of 21 conflict transaction or conflict transactions generally. 22 (2) The tribunal may approve-- 23 (a) an investment as an authorised investment; or 24 (b) the undertaking of a real estate transaction that is not an authorised 25 real estate transaction; or 26 (c) the undertaking of a security transaction that is not an authorised 27 security transaction. 28

 


 

s 153 94 s 154 Guardianship and Administration (3) The tribunal, or its appropriately qualified nominee, may approve a 1 management plan given to the tribunal for approval. 2 (4) In this section-- 3 "appropriately qualified", for a nominee who may approve a 4 management plan, means having the qualifications or experience 5 appropriate to approve the plan. 6 and audit 7 Records 153.(1) The tribunal may order an adult's administrator or adult's 8 attorney for a financial matter to file in the tribunal, and serve on the 9 applicant, a summary of receipts and expenditure for the adult or more 10 detailed accounts of dealings and transactions for the adult. 11 (2) The tribunal may-- 12 (a) order that the summary or accounts filed be audited by an auditor 13 appointed by the tribunal and a copy of the auditor's report be 14 given to the tribunal and the applicant; and 15 (b) make an order about payment of the auditor's costs. 16 (3) The tribunal may make an order under subsection (1) or (2) on its 17 own initiative or on the application of the adult or another interested person. 18 (4) In this section-- 19 "attorney" means an attorney under an enduring power of attorney. 20 or approval of exercise of power by informal decision 21 Ratification maker 22 154.(1) The tribunal may, by order, ratify an exercise of power, or 23 approve a proposed exercise of power, for a matter by an informal decision 24 maker for an adult with impaired capacity for the matter. 25 (2) The tribunal may only approve or ratify the exercise of power for a 26 matter if-- 27 (a) it considers the informal decision maker proposes to act, or has 28 acted, honestly and with reasonable diligence; and 29

 


 

s 155 95 s 155 Guardianship and Administration (b) the matter is not a special personal matter, a health matter or a 1 special health matter. 2 (3) The tribunal may make the order on its own initiative or on the 3 application of the adult or informal decision maker. 4 (4) If the tribunal approves or ratifies the exercise of power for an adult 5 for a matter-- 6 (a) the exercise of power is as effective as if the power were 7 exercised by the adult and the adult had capacity for the matter 8 when the power is or was exercised; and 9 (b) the informal decision maker does not incur any liability, either to 10 the adult or anyone else, for the exercise of power. 11 (5) In this section-- 12 "informal decision maker", for a matter for an adult, means a person who 13 is-- 14 (a) a member of the adult's support network; and 15 (b) not an attorney under an enduring document, administrator or 16 guardian for the adult for the matter. 17 of guardianship order or administration order 18 Suspension 155.(1) The tribunal may, by order, suspend the operation of all or some 19 of the power of a guardian or administrator (an "appointee") for an adult if 20 the tribunal suspects, on reasonable grounds, that the appointed person is 21 not competent. 22 (2) An appointee is not competent if, for example-- 23 (a) a relevant interest of the adult has not been, or is not being, 24 adequately protected; or 25 (b) the appointee has neglected the appointee's duties or abused the 26 appointee's powers, whether generally or in relation to a specific 27 power; or 28 (c) the appointee has otherwise contravened this Act. 29 (3) The tribunal may make an order under subsection (1) in a proceeding 30 without hearing and deciding the proceeding or otherwise complying with 31

 


 

s 156 96 s 157 Guardianship and Administration the requirements of this Act. 1 (4) The suspension may not be for more than 3 months. 2 (5) During the suspension of the operation of power of a guardian, the 3 adult guardian is taken to be the guardian for the adult for the exercise of the 4 suspended power. 5 (6) During the suspension of the operation of power of an administrator, 6 the public trustee is taken to be the administrator for the adult for the 7 exercise of the suspended power. 8 ART 6--DECISION 9 P within reasonable time 10 Decision 156. The tribunal must give its decision on a matter involved in a 11 proceeding within a reasonable time after the matter is heard. 12 reasons for decision 13 Written 157.(1) If directed by the president to give written reasons for a decision, 14 the tribunal must give written reasons for the decision within 28 days after 15 giving the decision.60 16 (2) Also, the tribunal must give written reasons for a decision if a person 17 aggrieved by the decision gives the tribunal a written request for the reasons 18 within 28 days after the person is given notice under subsection (3). 19 60 Acts Interpretation Act 1954, section 27B provides as follows-- `Content of statement of reasons for decision `27B. If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression `reasons', `grounds' or another expression is used), the instrument giving the reasons must also-- (a) set out the findings on material questions of fact; and (b) refer to the evidence or other material on which those findings were based.'.

 


 

s 158 97 s 159 Guardianship and Administration (3) When the tribunal gives a person a copy of a decision under 1 section 158, the tribunal must also give the person a notice that, to obtain the 2 tribunal's written reasons for the decision, the person must make a written 3 request to the tribunal within 28 days after the notice is given. 4 (4) Subsection (3) does not apply if the tribunal gives the person a copy 5 of its written reasons when the tribunal gives the person a copy of its 6 decision. 7 (5) The tribunal must give the person the written reasons within 28 days 8 after receiving the request. 9 and reasons to the adult and each active party 10 Decision 158.(1) Generally, the tribunal must give a copy of its decision, and any 11 written reasons for its decision, on an application about a matter to-- 12 (a) the adult concerned in the matter; and 13 (b) each other active party in the proceeding. 14 (2) Generally, the tribunal must also give a copy of its decision to each 15 person given notice of the hearing of the application. 16 (3) However, a confidentiality order may displace the requirement to give 17 copies of its decision or reasons.61 18 (4) The tribunal may also give a copy of its decision or reasons to anyone 19 else as required by a tribunal order. 20 of orders and decisions 21 Proof 159. A document purporting to be certified by the registrar of the tribunal 22 and to be a copy of an order or decision of the tribunal, is, in a proceeding, 23 whether or not before the tribunal, or for advice to the registrar of titles, 24 evidence of the order or decision. 25 61 Section 109 allows the tribunal to impose a prohibition or restriction on access to its decision or reasons if this is desirable because of their confidential nature or for another reason. As to restricting access by the adult concerned, see section 109(3).

 


 

s 160 98 s 162 Guardianship and Administration ART 7--REVIEW OF REGISTRAR'S DECISION 1 P for review of registrar's decision 2 Application 160.(1) Any person aggrieved by a decision of the registrar in a matter62 3 may apply to the tribunal to review the matter. 4 (2) The application must be made to the tribunal within 28 days after the 5 day the person becomes aware of the decision. 6 (3) However, the tribunal may, at any time, give the person leave to apply 7 for a review. 8 (4) A person aggrieved by a decision of the registrar may start an appeal 9 under part 8 only if the aggrieved person has applied for a review under this 10 part. 11 of registrar's decision 12 Review 161.(1) On its own initiative or on an application under section 160, the 13 tribunal may review a matter in which the registrar has made a decision. 14 (2) Unless the tribunal orders otherwise, the tribunal must conduct the 15 review on the evidence before the registrar. 16 (3) When reviewing a matter, the tribunal must be constituted by a single 17 member who is the president or a legal member. 18 of review on original decision of registrar 19 Effect 162.(1) Unless the registrar otherwise orders, a decision made by the 20 registrar in a matter to be reviewed remains in force until a decision is made 21 at the review. 22 (2) However, to secure the effectiveness of a review, the registrar may, 23 by order, stay a decision. 24 (3) A stay-- 25 (a) may be given on the terms the registrar considers appropriate; and 26 62 This includes a decision of the registrar in a prescribed non-contentious matter--section 85.

 


 

s 163 99 s 164 Guardianship and Administration (b) operates for the period specified by the registrar. 1 (4) The period of a stay must not extend past the time when a decision is 2 made at the review. 3 (5) The registrar or the tribunal may amend or revoke an order staying a 4 decision. 5 ART 8--APPEAL 6 P may suspend decision pending appeal 7 Tribunal 163.(1) To secure the effectiveness of an appeal against a tribunal 8 decision, the tribunal making the decision under part 6 or 763 may, by order, 9 stay the decision. 10 (2) A stay-- 11 (a) may be given on the terms the tribunal considers appropriate; and 12 (b) operates for the period specified by the tribunal. 13 (3) The period of a stay must not extend past the time when the appeal is 14 decided. 15 (4) The tribunal may amend or revoke its order staying a tribunal 16 decision. 17 (5) In this section-- 18 "tribunal decision" includes an order or direction of the tribunal. 19 20 Appellant 164.(1) An eligible person may appeal against a tribunal decision in a 21 proceeding to the court.64 22 63 Part 6 (Decision) or 7 (Review of registrar's decision) 64 "Court" means the Supreme Court--see schedule 4 (Dictionary).

 


 

s 165 100 s 165 Guardianship and Administration (2) The court's leave is required for an appeal except for an appeal on a 1 question of law only. 2 (3) In this section-- 3 "eligible person" means-- 4 (a) the person whose capacity for a matter was under consideration in 5 the proceeding; or 6 (b) the applicant in the proceeding; or 7 (c) a person proposed for appointment by the proceeding; or 8 (d) a person whose power as guardian, administrator or attorney was 9 changed or removed by the tribunal decision; or 10 (e) the adult guardian; or 11 (f) the public trustee; or 12 (g) the Attorney-General; or 13 (h) a person given leave to appeal by the court. 14 "tribunal decision" includes a declaration, order or direction of the 15 tribunal. 16 costs 17 Appeal 165.(1) Each party to an appeal is to bear the party's own costs of the 18 appeal. 19 (2) However, the court may order a party to an appeal to pay costs to 20 another party if the court considers-- 21 (a) the appeal was frivolous or vexatious; or 22 (b) the party has incurred costs because the appellant defaulted in the 23 procedural requirements. 24

 


 

s 166 101 s 171 Guardianship and Administration ART 9--RECOGNITION OF ORDER MADE UNDER 1 P ANOTHER LAW 2 for pt 9 3 Definitions 166. In this part-- 4 "notified law" means an Act, or law of a foreign jurisdiction, notified 5 under section 167. 6 "registrable order" means an order made under a notified law. 7 of equivalent provision 8 Notification 167. If the Minister considers an Act of the Commonwealth or another 9 State, or a law of a foreign jurisdiction, allows an order to be made that is 10 similar to an order that may be made under this Act or the Powers of 11 Attorney Act 1998, the Minister may notify the Act or law by gazette notice. 12 to register 13 Application 168. A person may apply to the tribunal to register a registrable order. 14 15 Registration 169. The tribunal may register a registrable order only if the original 16 order or a certified copy of the order has been filed with the tribunal. 17 of registration 18 Effect 170. The effect of registration of a registrable order is the order is treated, 19 other than for an appeal, as if it were an order made by the tribunal. 20 of registration and subsequent action to original maker 21 Notice 171.(1) As soon as reasonably practicable after registering a registrable 22 order, the tribunal must advise the entity that originally made the order of 23 the registration. 24

 


 

s 172 102 s 173 Guardianship and Administration (2) As soon as reasonably practicable after the tribunal takes any 1 subsequent action about the order, including, for example, making a further 2 order, the tribunal must advise the entity that originally made the order of 3 the action. 4 PART 10--OTHER PROVISIONS ABOUT 5 PROCEEDINGS 6 of orders 7 Enforcement 172.(1) A tribunal order, other than an order entitling a person to 8 payment, may be filed in a court having jurisdiction to make the order. 9 (2) A tribunal order entitling a person to payment may be filed in a court 10 having jurisdiction for the recovery of debts up to the amount remaining 11 unpaid. 12 (3) Proceedings for the enforcement of a tribunal order may be taken as if 13 the tribunal order were an order of the court in which the tribunal order is 14 filed. 15 CHAPTER 8--ADULT GUARDIAN 16 PART 1--ESTABLISHMENT, FUNCTIONS AND 17 POWERS 18 guardian 19 Adult 173. There must be an Adult Guardian.65 20 65 See part 4 (Administrative provisions), particularly section 199 (Appointment).

 


 

s 174 103 s 174 Guardianship and Administration unctions 1 F 174.(1) The adult guardian's role is to protect the rights and interests of 2 adults who have impaired capacity for a matter. 3 (2) The adult guardian has the functions given to the adult guardian by 4 this Act or another Act, including the following functions-- 5 (a) protecting adults who have impaired capacity for a matter from 6 neglect, exploitation or abuse; 7 (b) investigating complaints and allegations about actions by-- 8 (i) an attorney; or 9 (ii) a guardian or administrator; or 10 (iii) another person acting or purporting to act under a power of 11 attorney, advance health directive or order of the tribunal 12 made under this Act; 13 (c) mediating and conciliating between attorneys, guardians and 14 administrators or between attorneys, guardians or administrators 15 and others, for example, health providers, if the adult guardian 16 considers this appropriate to resolve an issue; 17 (d) acting as attorney-- 18 (i) for a personal matter under an enduring power of attorney; 19 or 20 (ii) under an advance health directive; or 21 (iii) for a health matter if authorised as a statutory health attorney; 22 or 23 (iv) if appointed by the court or the tribunal; 24 (e) acting as guardian if appointed by the tribunal; 25 (f) seeking help (including help from a government department, or 26 other institution, welfare organisation or provider of a service or 27 facility) for, or making representations for, an adult with impaired 28 capacity for a matter; 29 (g) educating and advising persons about, and conducting research 30 into, the operation of this Act and the Powers of Attorney Act 31 1998. 32

 


 

s 175 104 s 176 Guardianship and Administration (3) In performing a function or exercising a power, the adult guardian 1 must apply the general principles and the health care principle. 2 (4) In subsection (2)(b) and (c)-- 3 "attorney" means-- 4 (a) an attorney under a power of attorney; or 5 (b) an attorney under an advance health directive or similar document 6 under the law of another jurisdiction; or 7 (c) a statutory health attorney. 8 "power of attorney" means-- 9 (a) a general power of attorney made under the Powers of Attorney 10 Act 1998; or 11 (b) an enduring power of attorney; or 12 (c) a power of attorney made otherwise than under the Powers of 13 Attorney Act 1998, whether before or after its commencement; or 14 (d) a similar document under the law of another jurisdiction. 15 16 Powers 175.(1) The adult guardian has the powers given under this Act or 17 another Act. 18 (2) Also, the adult guardian may do all things necessary or convenient to 19 be done to perform the adult guardian's functions. 20 under Ministerial control 21 Not 176. In performing the adult guardian's functions and exercising the adult 22 guardian's powers, the adult guardian is not under the control or direction of 23 the Minister. 24

 


 

s 177 105 s 177 Guardianship and Administration 1 Delegation 177.(1) The adult guardian may delegate the adult guardian's powers,66 2 other than the power to give notice under section 185(1) or 189,67 to an 3 appropriately qualified member of the adult guardian's staff. 4 (2) The adult guardian may also delegate the adult guardian's mediation 5 and conciliation powers to an appropriately qualified person. 6 (3) A person exercising mediation or conciliation power must, if asked, 7 produce evidence of the delegation. 8 (4) Also, if the adult guardian has power for a personal matter for an 9 adult, the adult guardian may delegate the power to make day-to-day 10 decisions about the matter to 1 of the following-- 11 (a) an appropriately qualified carer of the adult; 12 (b) a health provider of the adult;68 13 (c) an attorney under an enduring document; 14 (d) 1 of the persons who could be eligible to be the adult's statutory 15 health attorney. 16 (5) In this section-- 17 "appropriately qualified", for a person to whom a power may be 18 delegated, includes having the qualifications, experience or standing 19 appropriate to exercise the power. 20 21 Example of `standing' for a person working in a hospital or care facility-- 22 A person's level of authority in the hospital or care facility. "day-to-day decision" means a minor, uncontroversial decision about 23 day-to-day issues that involves no more than a low risk to the adult. 24 66 The Acts Interpretation Act 1954, section 27A applies to the delegation. 67 Sections 185 (Witnesses) and 189 (Cost of investigations and audits) 68 This is despite an adult's paid carer or health provider not being eligible to be appointed as the adult's guardian or administrator (section 14(1) (Appointment of 1 or more eligible guardians and administrators)) or as the adult's attorney (Powers of Attorney Act 1998, section 29 (Meaning of "eligible attorney")).

 


 

s 178 106 s 179 Guardianship and Administration 1 Example of day-to-day decision-- 2 A decision about podiatry, physiotherapy, non-surgical treatment of pressure sores 3 and health care for colds and influenza. and employment of professionals 4 Consultation 178.(1) The adult guardian may consult with, employ, and remunerate, 5 the medical, legal, accounting or other professionals the adult guardian 6 considers necessary. 7 (2) The adult guardian is entitled to reimbursement from an adult for 8 remuneration paid concerning the adult. 9 and supervision 10 Advice 179.(1) The adult guardian may-- 11 (a) give advice to an attorney, guardian or administrator; and 12 (b) by written notice, make an attorney, guardian or administrator 13 subject to the adult guardian's supervision for a reasonable period 14 if the adult guardian believes, on reasonable grounds, it is 15 necessary in the adult's interests including, for example, because 16 the person has contravened this Act or the person's duties but has 17 not done this wilfully; and 18 (c) require an attorney who may exercise power for a financial matter 19 or an administrator to present a plan of management for approval. 20 (2) An attorney, guardian or administrator may apply to the tribunal 21 about the adult guardian's advice, notice or requirement and the tribunal 22 may make the order it considers appropriate. 23 (3) In this section-- 24 "attorney" means an attorney under an enduring document or a statutory 25 health attorney. 26

 


 

s 180 107 s 181 Guardianship and Administration PART 2--INVESTIGATIVE POWERS 1 complaints 2 Investigate 180. The adult guardian may investigate any complaint or allegation that 3 an adult with impaired capacity for a matter-- 4 (a) is being or has been neglected, exploited or abused; or 5 (b) has inappropriate or inadequate decision-making arrangements. 6 for investigation 7 Delegate 181.(1) If the adult guardian decides to investigate a complaint or 8 allegation, the adult guardian may delegate to an appropriately qualified 9 person the adult guardian's powers under this part, other than the power to 10 give notice under section 185(1) or 189.69 11 (2) Subsection (1) does not affect the adult guardian's power to delegate 12 under section 177. 13 (3) A delegate exercising power under this part must, if asked, produce 14 evidence of the delegation. 15 (4) If a delegate is given power to carry out an investigation, the delegate 16 must, after carrying out the investigation, make a written report and give a 17 copy of the report to the adult guardian. 18 (5) It is a lawful excuse for the publication of any defamatory statement 19 made in the report that the publication is made in good faith and is, or 20 purports to be, made for this Act. 21 (6) A delegate given power to carry out an investigation is entitled to the 22 remuneration decided by the adult guardian. 23 (7) In this section-- 24 "appropriately qualified", for a person to whom a power may be 25 delegated, means having the qualifications or experience appropriate to 26 exercise the power. 27 69 Section 185 (Witnesses) and 189 (Cost of investigations and audits)

 


 

s 182 108 s 183 Guardianship and Administration and audit 1 Records 182.(1) The adult guardian may, by written notice to an attorney for an 2 adult under an enduring power of attorney who has power for a financial 3 matter or to an administrator for an adult, require that by the date stated in 4 the notice the attorney or administrator file with the adult guardian a 5 summary of receipts and expenditure, or more detailed accounts of dealings 6 and transactions, for the adult for a specified period. 7 (2) The date by which the summary or accounts must be filed must be a 8 date that the adult guardian considers gives the attorney or administrator 9 reasonable time to comply with the notice. 10 (3) The attorney or administrator must comply with the notice, unless the 11 attorney or administrator has a reasonable excuse. 12 Maximum penalty--100 penalty units. 13 (4) The summary or accounts filed may be audited by an auditor 14 appointed by the adult guardian.70 15 to information 16 Right 183.(1) The adult guardian has a right to all information necessary to 17 investigate a complaint or allegation or to carry out an audit.71 18 (2) The adult guardian may, by written notice given to a person who has 19 custody or control of the information, require the person-- 20 (a) to give the information to the adult guardian; and 21 (b) if the person is an attorney or administrator and the information is 22 contained in a document--to give the document to the adult 23 guardian; and 24 (c) if the person is not an attorney or administrator and the 25 information is contained in a document--to allow the adult 26 guardian to inspect the document and take a copy of it. 27 70 See Powers of Attorney Act 1998, section 122 (Records and audit) which gives the court similar power in relation to an attorney for a financial matter. 71 In addition, the Powers of Attorney Act 1998, section 81 (Right of attorney to information) gives the adult guardian a right to information as an attorney.

 


 

s 184 109 s 184 Guardianship and Administration (3) The person must comply with the notice, unless the person has a 1 reasonable excuse. 2 Maximum penalty--100 penalty units. 3 (4) It is a reasonable excuse for a person to fail to comply with the notice 4 because complying with the notice might tend to incriminate the person. 5 (5) However, this section overrides-- 6 (a) any restriction, in an Act or the common law, about the disclosure 7 or confidentiality of information; and 8 (b) any claim of confidentiality or privilege, including a claim based 9 on legal professional privilege. 10 (6) In this section-- 11 "attorney" means-- 12 (a) an attorney under a power of attorney; or 13 (b) an attorney under an advance health directive; or 14 (c) a statutory health attorney. 15 "power of attorney" means-- 16 (a) a general power of attorney made under the Powers of Attorney 17 Act 1998; or 18 (b) an enduring power of attorney; or 19 (c) a power of attorney made otherwise than under the Powers of 20 Attorney Act 1998, whether before or after its commencement. 21 by statutory declaration 22 Information 184.(1) If a person is required to give information to the adult guardian 23 under this Act, the adult guardian may, by written notice given to a person, 24 require the person to give the information by statutory declaration. 25 (2) The person must comply with the notice, unless the person has a 26 reasonable excuse. 27 Maximum penalty--100 penalty units. 28

 


 

s 185 110 s 186 Guardianship and Administration 1 Witnesses 185.(1) For the performance of the adult guardian's functions, the adult 2 guardian may, by written notice given to a person, require the person to 3 attend before the adult guardian at a stated time and place to give 4 information and answer questions, or produce stated documents or things. 5 (2) The person must comply with the notice, unless the person has a 6 reasonable excuse.72 7 Maximum penalty--100 penalty units. 8 (3) The adult guardian may-- 9 (a) require the person either to take an oath or make an affirmation; 10 and 11 (b) administer an oath or affirmation to the person, or, if technology 12 allowing reasonably contemporaneous and continuous 13 communication is to be used, make the arrangements the adult 14 guardian considers appropriate in the circumstances for 15 administering an oath or affirmation to the person; and 16 (c) allow the person to give information by tendering a written 17 statement, verified, if the adult guardian directs, by oath or 18 affirmation. 19 (4) The person must comply with a requirement under subsection (3)(a), 20 unless the person has a reasonable excuse. 21 Maximum penalty--100 penalty units. 22 (5) The adult guardian must pay or tender to the person an amount 23 equivalent to the fees and expenses allowable under the Uniform Civil 24 Procedure Rules 1999 if the person were a witness appearing in a 25 Magistrates Court. 26 of court if noncompliance with attendance notice 27 Power 186.(1) This section applies if, without reasonable excuse, a person fails 28 to comply with a notice given under section 185. 29 72 See section 188 (Self-incrimination not a reasonable excuse).

 


 

s 187 111 s 188 Guardianship and Administration (2) A Magistrates Court, at the request of the adult guardian, may issue a 1 subpoena requiring the attendance of the person before the court. 2 (3) The Uniform Civil Procedure Rules 1999, other than rules 417, 418 3 and 420, apply in relation to the subpoena.73 4 (4) The court may require the person either to take an oath or make an 5 affirmation. 6 (5) If the person attends before the court under a subpoena to give 7 evidence or a subpoena for production and to give evidence, the adult 8 guardian may examine the person. 9 (6) In this section-- 10 "subpoena" means-- 11 (a) a subpoena for production; or 12 (b) a subpoena to give evidence; or 13 (c) a subpoena for production and to give evidence. 14 of court if failure to cooperate under subpoena 15 Power 187.(1) This section applies if a person subpoenaed under section 186 16 attends before a Magistrates Court and without reasonable excuse-- 17 (a) refuses to be sworn or to affirm; or 18 (b) refuses to answer a question put to the person; or 19 (c) fails to give an answer to the court's satisfaction. 20 (2) The court may treat the person's refusal or failure as a contempt of 21 court. 22 not a reasonable excuse 23 Self-incrimination 188.(1) This section applies to-- 24 73 See the Uniform Civil Procedure Rules 1999, chapter 11 (Evidence), part 4 (Subpoenas) and rules 417 (Order for cost of complying with subpoena), 418 (Cost of complying with subpoena if not a party) and 420 (Production by non-party).

 


 

s 189 112 s 189 Guardianship and Administration (a) a person who fails to comply with a notice under 1 subsection 185(1) to give information and answer questions or to 2 produce documents or things; or 3 (b) a person subpoenaed under section 186 who attends before a 4 Magistrates Court and refuses to answer a question put to the 5 person or fails to give an answer to the court's satisfaction. 6 (2) It is not a reasonable excuse for the person to-- 7 (a) fail to comply with the notice; or 8 (b) refuse to answer the question or fail to give an answer to the 9 court's satisfaction; 10 because compliance with the notice, answering the question or giving an 11 answer to the court's satisfaction might tend to incriminate the person. 12 (3) However, evidence directly or indirectly derived from the person's 13 answer that might tend to incriminate the person, or from the person's 14 production of a document or thing that might tend to incriminate the person, 15 is not admissible in evidence against the person in a civil or criminal 16 proceeding, other than-- 17 (a) a proceeding for an offence about the falsity of the answer, 18 document or thing; or 19 (b) if the answer or production is relevant to the person's 20 employment--a proceeding brought by or for the person against 21 the person's employer; or 22 (c) if the answer or production is relevant to the person's professional 23 registration or licence--a proceeding about the registration, licence 24 or approval; or 25 (d) if the answer or production is relevant to the person's registration, 26 licence or approval as proprietor or operator of a service or facility 27 involved in the care of adults with impaired capacity for a 28 matter--a proceeding about the registration, licence or approval. 29 of investigations and audits 30 Cost 189.(1) If-- 31

 


 

s 189 113 s 189 Guardianship and Administration (a) the adult guardian undertakes an investigation concerning a 1 financial matter or an audit at the request of a person; and 2 (b) the adult guardian is satisfied the request was frivolous or 3 vexatious or otherwise without good cause; 4 the adult guardian may, by written notice, require the person to pay to the 5 adult guardian the amount the adult guardian considers appropriate for the 6 cost of the investigation or audit. 7 (2) If-- 8 (a) the adult guardian undertakes an investigation concerning a 9 financial matter or an audit; and 10 (b) the adult guardian considers the attorney or administrator 11 concerned has contravened this Act or the Powers of Attorney Act 12 1998; 13 the adult guardian may, by written notice, require the attorney or 14 administrator to personally pay to the adult guardian the amount the adult 15 guardian considers appropriate for the cost of the investigation or audit. 16 (3) The adult guardian may, by written notice, require a person who 17 requests an investigation or audit to pay to the adult guardian the amount the 18 adult guardian considers appropriate as security for a payment under 19 subsection (1). 20 (4) A person given notice under this section may apply to the tribunal and 21 the tribunal may make the order it considers appropriate. 22 (5) In this section-- 23 "attorney" means an attorney under a power of attorney. 24 "power of attorney" means-- 25 (a) a general power of attorney made under the Powers of Attorney 26 Act 1998; or 27 (b) an enduring power of attorney; or 28 (c) a power of attorney made otherwise than under the Powers of 29 Attorney Act 1998, whether before or after its commencement. 30

 


 

s 190 114 s 192 Guardianship and Administration or misleading statements 1 False 190.(1) A person must not state anything to the adult guardian the person 2 knows is false or misleading in a material particular. 3 Maximum penalty--100 penalty units. 4 (2) It is enough for a complaint for an offence against subsection (1) to 5 state the statement made was `false or misleading' to the person's 6 knowledge, without stating which. 7 or misleading documents 8 False 191.(1) A person must not give the adult guardian a document containing 9 information the person knows is false or misleading in a material particular. 10 Maximum penalty--100 penalty units. 11 (2) Subsection (1) does not apply to a person if the person, when giving 12 the document-- 13 (a) tells the adult guardian, to the best of the person's ability, how it is 14 false or misleading; and 15 (b) if the person has, or can reasonably obtain, the correct 16 information--gives the correct information. 17 (3) It is enough for a complaint against a person for an offence against 18 subsection (1) to state the document contained information that was `false or 19 misleading' to the person's knowledge, without stating which. 20 investigation or audit 21 Obstructing 192.(1) A person must not obstruct or improperly influence the conduct 22 of an investigation or audit. 23 Maximum penalty--100 penalty units. 24 (2) In this section-- 25 "influence" includes attempt to influence. 26 "obstruct" includes hinder, resist and attempt to obstruct. 27

 


 

s 193 115 s 194 Guardianship and Administration after investigation or audit 1 Report 193.(1) After the adult guardian has carried out an investigation or audit 2 in relation to an adult, the adult guardian must make a written report and 3 give a copy of the report to any person at whose request the investigation or 4 audit was carried out and to every attorney, guardian, or administrator, for 5 the adult. 6 (2) It is a lawful excuse for the publication of a defamatory statement 7 made in the report that the publication is made in good faith and is, or 8 purports to be, made for this Act. 9 (3) The adult guardian must allow an interested person to inspect a copy 10 of the report at all reasonable times and, at the person's own expense, to be 11 given a copy of the report. 12 (4) In this section-- 13 "attorney" means-- 14 (a) an attorney under a power of attorney; or 15 (b) an attorney under an advance health directive. 16 "power of attorney" means-- 17 (a) a general power of attorney made under the Powers of Attorney 18 Act 1998; or 19 (b) an enduring power of attorney; or 20 (c) a power of attorney made otherwise than under the Powers of 21 Attorney Act 1998, whether before or after its commencement. 22 ART 3--PROTECTIVE POWERS 23 P for protection of property 24 Proceedings 194. If the adult guardian considers-- 25 (a) property of an adult with impaired capacity is wrongfully held, 26 detained, converted or injured; or 27 (b) money is payable to the adult; 28

 


 

s 195 116 s 196 Guardianship and Administration the adult guardian, either in the name of the adult guardian or the adult, may 1 claim and recover possession of the property, damages for conversion of or 2 injury to the property, or payment of the money, by application to the court. 3 of attorney's power 4 Suspension 195.(1) The adult guardian may, by written notice to an attorney, suspend 5 the operation of all or some of an attorney's power for an adult if the adult 6 guardian suspects, on reasonable grounds, that the attorney is not 7 competent. 8 (2) An attorney is not competent if, for example-- 9 (a) a relevant interest of the adult has not been, or is not being, 10 adequately protected; or 11 (b) the attorney has neglected the attorney's duties or abused the 12 attorney's powers, whether generally or in relation to a specific 13 power; or 14 (c) the attorney has otherwise contravened this Act or the Powers of 15 Attorney Act 1998. 16 (3) The suspension may not be for more than 3 months. 17 (4) The adult guardian may lift the suspension on the terms the adult 18 guardian considers appropriate. 19 (5) The attorney whose power has been suspended may apply to the 20 tribunal and the tribunal may make the order it considers appropriate. 21 (6) In this section-- 22 "attorney" means an attorney under an enduring document. 23 of power during suspension 24 Exercise 196.(1) During the suspension of the operation of power of an attorney, 25 the attorney must not exercise the power. 26 Maximum penalty--100 penalty units 27 (2) During the suspension of the operation of power of an attorney for a 28 personal matter, the adult guardian is taken to be the attorney for the adult 29 for the exercise of the suspended power. 30

 


 

s 197 117 s 198 Guardianship and Administration (3) During the suspension of the operation of power of an attorney for a 1 financial matter, the public trustee is taken to be the attorney for the adult for 2 the exercise of the suspended power. 3 to apply for entry and removal warrant 4 Power 197.(1) This section applies if the adult guardian considers there are 5 reasonable grounds for suspecting there is an immediate risk of harm, 6 because of neglect (including self neglect), exploitation or abuse, to an adult 7 with impaired capacity for a matter. 8 (2) The adult guardian may apply to the tribunal for a warrant to enter a 9 place and to remove the adult.74 10 providers may advise adult guardian 11 Health 198.(1) This section applies if a health provider who is treating an adult 12 considers-- 13 (a) the adult has impaired capacity for a matter; and 14 (b) the adult does not have an attorney, guardian or administrator for 15 the matter. 16 (2) The health provider may advise the adult guardian of the following 17 details-- 18 (a) the adult's name; 19 (b) the adult's current location and contact address; 20 (c) the contact details for the adult's nearest relative; 21 (d) the health provider's opinion about the adult's capacity. 22 (3) This section overrides-- 23 (a) any restriction, in an Act or the common law, about the disclosure 24 or confidentiality of information; and 25 (b) any claim of confidentiality or privilege. 26 (4) In this section-- 27 74 See section 148 (Application for entry and removal warrant)

 


 

s 199 118 s 201 Guardianship and Administration "attorney" means an attorney under an enduring document. 1 "contact details", for a relative, means the relative's address and telephone 2 number or a way of contacting the relative. 3 ART 4--ADMINISTRATIVE PROVISIONS 4 P 5 Appointment 199.(1) The Governor in Council must appoint the adult guardian. 6 (2) The appointment must be on a full-time basis. 7 (3) A person is eligible for appointment as adult guardian only if the 8 person has demonstrated commitment to the rights and interests of adults 9 with impaired capacity for a matter. 10 (4) A person may not hold office as adult guardian while the person 11 holds another office having functions concerning the protection of the rights 12 and interests of, or the provision of services or facilities to, adults with 13 impaired capacity for a matter. 14 15 Selection 200.(1) For selecting a person for recommendation for appointment as 16 adult guardian, the Minister must advertise for applications from 17 appropriately qualified persons to be considered for selection. 18 (2) The Minister may recommend to the Governor in Council a person 19 for appointment as adult guardian only if subsection (1) has been complied 20 with for the appointment. 21 of appointment 22 Duration 201.(1) The adult guardian holds office for a term of not longer than 23 5 years.75 24 75 However, the adult guardian may be reappointed--see Acts Interpretation Act 1954, section 25(1)(c).

 


 

s 202 119 s 204 Guardianship and Administration (2) The office of adult guardian becomes vacant if the adult guardian 1 resigns by signed notice of resignation given to the Minister. 2 (3) The Governor in Council may remove the adult guardian from office 3 for-- 4 (a) physical or mental incapacity to satisfactorily perform official 5 duties; or 6 (b) neglect of duty; or 7 (c) dishonourable conduct; or 8 (d) being found guilty of an offence the Minister considers makes the 9 person inappropriate to perform official duties. 10 of appointment 11 Terms 202.(1) The Governor in Council may decide the remuneration and 12 allowances payable to the adult guardian. 13 (2) The adult guardian is to be paid the remuneration and allowances 14 decided by the Governor in Council. 15 (3) To the extent this Act does not state the terms on which the adult 16 guardian holds office, the adult guardian holds office on the terms decided 17 by the Governor in Council. 18 of absence 19 Leave 203. The Minister may give the adult guardian leave of absence on the 20 terms the Minister considers appropriate. 21 adult guardian 22 Acting 204. The Governor in Council may appoint a person to act as the adult 23 guardian during any or all periods-- 24 (a) the office is vacant; or 25 (b) the adult guardian is absent from duty or, for another reason, is 26 unable to perform the duties of the office. 27

 


 

s 205 120 s 209 Guardianship and Administration 1 Staff 205. Staff necessary to enable the adult guardian to perform the adult 2 guardian's functions are to be appointed under the Public Service Act 1996. 3 report 4 Annual 206.(1) As soon as practicable after the close of each financial year but 5 not later than 4 months after that close, the adult guardian must-- 6 (a) prepare a report on the performance of the adult guardian's 7 functions during the year; and 8 (b) give a copy of the report to the Minister. 9 (2) The Minister must table a copy of the report in the Legislative 10 Assembly within 14 sitting days after receiving the report. 11 a statutory body for particular Acts 12 Not 207. To avoid doubt, it is declared that the adult guardian is not a 13 statutory body for the Statutory Bodies Financial Arrangements Act 1982 14 or the Financial Administration and Audit Act 1977. 15 CHAPTER 9--PUBLIC ADVOCATE 16 PART 1--ESTABLISHMENT, FUNCTIONS AND 17 POWERS 18 advocate 19 Public 208. There must be a Public Advocate. 20 advocacy 21 Functions--systemic 209. The public advocate has the following functions-- 22

 


 

s 210 121 s 212 Guardianship and Administration (a) promoting and protecting the rights of adults with impaired 1 capacity for a matter; 2 (b) promoting the protection of the adults from neglect, exploitation 3 or abuse; 4 (c) encouraging the development of programs to help the adults to 5 reach the greatest practicable degree of autonomy; 6 (d) promoting the provision of services and facilities for the adults; 7 (e) monitoring and reviewing the delivery of services and facilities to 8 the adults. 9 10 Powers 210.(1) The public advocate may do all things necessary or convenient to 11 be done to perform the public advocate's functions. 12 (2) The public advocate may intervene in a proceeding before a court or 13 tribunal, or in an official inquiry, involving protection of the rights or 14 interests of adults with impaired capacity for a matter. 15 (3) However, intervention requires the leave of the court, tribunal or 16 person in charge of the inquiry and is subject to the terms imposed by the 17 court, tribunal or person in charge of the inquiry. 18 under Ministerial control 19 Not 211. In performing the public advocate's functions and exercising the 20 public advocate's powers, the public advocate is not under the control or 21 direction of the Minister. 22 23 Delegation 212.(1) The public advocate may delegate the public advocate's powers 24 to an appropriately qualified member of the public advocate's staff. 25 (2) In this section-- 26 "appropriately qualified", for a person to whom a power under an Act 27 may be delegated, includes having the qualifications, experience or 28 standing appropriate to exercise the power. 29

 


 

s 213 122 s 215 Guardianship and Administration 1 Example of `standing'-- 2 A person's level of authority. ART 2--ADMINISTRATIVE PROVISIONS 3 P 4 Appointment 213.(1) The Governor in Council must appoint the public advocate. 5 (2) The appointment must be on a full-time basis. 6 (3) A person is eligible for appointment as public advocate only if the 7 person has demonstrated commitment to advocacy for people with impaired 8 capacity for a matter. 9 (4) A person may not hold office as public advocate while the person 10 holds office as adult guardian or public trustee. 11 12 Selection 214.(1) For selecting a person for recommendation for appointment as 13 public advocate, the Minister must advertise for applications from 14 appropriately qualified persons to be considered for selection. 15 (2) The Minister may recommend to the Governor in Council a person 16 for appointment as public advocate only if subsection (1) has been complied 17 with for the appointment. 18 of appointment 19 Duration 215.(1) The public advocate holds office for a term of not longer than 5 20 years.76 21 (2) The office of public advocate becomes vacant if the public advocate 22 resigns by signed notice of resignation given to the Minister. 23 76 The public advocate may be reappointed--see Acts Interpretation Act 1954, section 25(1)(c).

 


 

s 216 123 s 218 Guardianship and Administration (3) The Governor in Council may remove the public advocate from 1 office for-- 2 (a) physical or mental incapacity to satisfactorily perform official 3 duties; or 4 (b) neglect of duty; or 5 (c) dishonourable conduct; or 6 (d) being found guilty of an offence the Minister considers makes the 7 person inappropriate to perform official duties. 8 of appointment 9 Terms 216.(1) The Governor in Council may decide the remuneration and 10 allowances payable to the public advocate. 11 (2) The public advocate is to be paid the remuneration and allowances 12 decided by the Governor in Council 13 (3) To the extent this Act does not state the terms on which the public 14 advocate holds office, the public advocate holds office on the terms decided 15 by the Governor in Council. 16 of absence 17 Leave 217. The Minister may give the public advocate leave of absence on the 18 terms the Minister considers appropriate. 19 public advocate 20 Acting 218. The Governor in Council may appoint a person to act as the public 21 advocate during any or all periods-- 22 (a) the office is vacant; or 23 (b) the public advocate is absent from duty or, for another reason, is 24 unable to perform the duties of the office. 25

 


 

s 219 124 s 222 Guardianship and Administration 1 Staff 219. Staff necessary to enable the public advocate to perform the public 2 advocate's functions are to be appointed under the Public Service Act 1996. 3 report 4 Annual 220.(1) As soon as practicable after the close of each financial year but 5 not later than 4 months after that close, the public advocate must-- 6 (a) prepare a report on the performance of the public advocate's 7 functions during the year; and 8 (b) give a copy of the report to the Minister. 9 (2) The Minister must table a copy of the report in the Legislative 10 Assembly within 14 sitting days after receiving the report. 11 a statutory body for particular Acts 12 Not 221. To avoid doubt, it is declared that the public advocate is not a 13 statutory body for the Statutory Bodies Financial Arrangements Act 1982 14 or the Financial Administration and Audit Act 1977. 15 CHAPTER 10--COMMUNITY VISITORS 16 ART 1--PRELIMINARY 17 P for ch 10 18 Definitions 222. In this chapter-- 19 "complaint" means a complaint about a matter mentioned in section 224(2) 20 made by or for a consumer at a visitable site. 21 "consumer", for a visitable site, means an adult-- 22 (a) with impaired capacity for a personal matter or a financial matter 23 or with a mental or intellectual impairment; and 24

 


 

s 223 125 s 224 Guardianship and Administration (b) who lives or receives services at the visitable site. 1 "normal hours" means the hours between 8 am and 6 pm. 2 "private dwelling house" means premises that are used, or are used 3 principally, as a separate residence for 1 family or person. 4 "visitable site" means a place, other than a private dwelling house, where a 5 consumer lives or receives services and that is prescribed under a 6 regulation. 7 "visitable site document", for a visitable site, means-- 8 (a) a document relating to the visitable site, including the visitable 9 site's records, policies and procedures; or 10 (b) a document relating to a consumer at the visitable site, including a 11 document in the consumer's personal or medical file, regardless 12 of who owns the file. 13 and allocation of community visitors 14 Purpose 223.(1) The purpose of providing community visitors for visitable sites 15 is to safeguard the interests of consumers at the visitable sites. 16 (2) The chief executive may allocate 1 or more community visitors for a 17 visitable site. 18 PART 2--FUNCTIONS AND POWERS 19 unctions 20 F 224.(1) A community visitor has inquiry and complaint functions. 21 (2) The inquiry functions of a community visitor for a visitable site are to 22 inquire into, and report to the chief executive on-- 23 (a) the adequacy of services for the assessment, treatment and 24 support of consumers at the visitable site; and 25 (b) the appropriateness and standard of services for the 26 accommodation, health and well-being of consumers at the 27 visitable site; and 28

 


 

s 225 126 s 226 Guardianship and Administration (c) the extent to which consumers at the visitable site receive services 1 in the way least restrictive of their rights; and 2 (d) the adequacy of information given to consumers at the visitable 3 site about their rights; and 4 (e) the accessibility and effectiveness of procedures for complaints 5 about services for consumers at the visitable site; and 6 (f) at the request of the chief executive, another matter about the 7 visitable site or consumers at the visitable site. 8 (3) The complaint functions of a community visitor for a visitable site are 9 to-- 10 (a) inquire into, and seek to resolve, complaints; and 11 (b) identify and make appropriate and timely referrals of unresolved 12 complaints to appropriate entities for further investigation or 13 resolution. 14 to regularly visit 15 Requirement 225.(1) A community visitor for a visitable site must regularly visit the 16 visitable site to perform the functions of a community visitor. 17 (2) The chief executive may decide priorities for visiting particular 18 visitable sites that affect the frequency of visits to a visitable site by a 19 community visitor. 20 to visit if asked 21 Requirement 226.(1) A consumer at a visitable site, or a person for the consumer, 22 may-- 23 (a) ask the chief executive to arrange for a community visitor to visit 24 the visitable site to perform the functions of a community visitor; 25 or 26 (b) ask a person in charge of the visitable site to arrange for a 27 community visitor to visit the visitable site to perform the 28 functions of a community visitor. 29

 


 

s 227 127 s 227 Guardianship and Administration (2) If the request is made to a person in charge of the visitable site, the 1 person must, within 3 business days after the request is made, tell the chief 2 executive about the request. 3 Maximum penalty--40 penalty units. 4 (3) A community visitor for the visitable site must visit the visitable site 5 as soon as practicable if informed of a request to visit. 6 7 Powers 227.(1) A community visitor for a visitable site may do all things 8 necessary or convenient to be done to perform the community visitor's 9 functions, including, for example, the following things-- 10 (a) enter the visitable site during normal hours without notice; 11 (b) with the chief executive's authorisation, enter the visitable site 12 outside normal hours without notice; 13 (c) require a person in charge of, employed at, or providing services 14 at, the visitable site to answer questions, and produce visitable site 15 documents, relevant to the community visitor's functions; 16 (d) subject to subsection (2), inspect and take extracts from, or make 17 copies of, any visitable site document; 18 (e) confer alone with a consumer or person in charge of, employed 19 at, or providing services at, the visitable site; 20 (f) require a person in charge of, employed at, or providing services 21 at, the visitable site to give the community visitor reasonable help, 22 if it is practicable to give the help, to enable the community visitor 23 to do the things mentioned in paragraphs (a) to (e). 24 (2) A person who complies with a requirement under subsection (1)(c) 25 or (f) does not incur any liability, either to the consumer or anyone else, 26 because of the compliance. 27 (3) A person must not fail to comply with a requirement under 28 subsection (1)(c) or (f) unless the person has a reasonable excuse. 29 Maximum penalty for subsection (3)--40 penalty units. 30

 


 

s 228 128 s 230 Guardianship and Administration (4) It is a reasonable excuse for a person to fail to comply with a 1 requirement under subsection (1)(c) or (f) because compliance with the 2 requirement might tend to incriminate the person. 3 executive may authorise access outside normal hours 4 Chief 228.(1) This section applies if the chief executive considers a community 5 visitor can not adequately inquire into a complaint by entering a visitable site 6 during normal hours. 7 (2) The chief executive may authorise the community visitor to enter the 8 visitable site outside normal hours to inquire into the complaint. 9 (3) In authorising an entry outside normal hours, the chief executive must 10 specify a period of not more than 2 hours during which the entry is 11 authorised. 12 views and wishes 13 Consumer's 229.(1) To the greatest extent practicable, a community visitor must seek 14 and take into account the views and wishes of a consumer before-- 15 (a) asking a person in charge of, employed at, or providing services 16 at, a visitable site a question relevant to a function of the 17 community visitor in relation to the consumer; or 18 (b) inspecting, taking extracts from, or making copies of, a visitable 19 site document relevant to a function of the community visitor in 20 relation to the consumer. 21 (2) A consumer's views and wishes may be expressed orally, in writing 22 or in another way, including, for example, by conduct. 23 (3) However, regardless of the consumer's views and wishes, the 24 community visitor must act in a way consistent with the consumer's proper 25 care and protection. 26 by community visitors 27 Reports 230.(1) As soon as practicable after a visit to a visitable site by a 28 community visitor for the visitable site, the community visitor must-- 29

 


 

s 231 129 s 231 Guardianship and Administration (a) prepare a report on the visit; and 1 (b) give a copy of the report to the chief executive. 2 (2) If the community visitor entered the visitable site outside normal 3 hours, the community visitor must state the authority for the entry. 4 (3) As soon as practicable after receiving a copy of a report in relation to 5 a visitable site, the chief executive must give a copy of the report to a person 6 in charge of the visitable site. 7 (4) The chief executive may also give a copy of the report to any of the 8 following-- 9 (a) if the report relates to a complaint--the consumer; 10 (b) the adult guardian; 11 (c) the public advocate. 12 ART 3--ADMINISTRATIVE PROVISIONS 13 P 14 Appointment 231.(1) The chief executive may appoint community visitors. 15 (2) An appointment may be on a full-time or part-time basis. 16 (3) A person is eligible for appointment as a community visitor only if 17 the chief executive considers the person has knowledge, experience or skills 18 relevant to the exercise of a community visitor's functions. 19 (4) However, a person may not hold office as a community visitor while 20 the person-- 21 (a) is a public service employee of the department of government 22 administered by the Minister administering the Disability Services 23 Act 1992 (the "department"); or 24 (b) has a direct pecuniary interest in any contract with the department; 25 or 26 (c) has a direct pecuniary interest in any visitable site. 27

 


 

s 232 130 s 232 Guardianship and Administration (5) In appointing community visitors, the chief executive must take into 1 account the desirability of the community visitors appointed-- 2 (a) having a range of knowledge, experience or skills relevant to the 3 exercise of the functions of community visitors; and 4 (b) reflecting the social and cultural diversity of the general 5 community; and 6 (c) consisting of equal numbers of males and females. 7 (6) A community visitor is appointed under this Act and not under the 8 Public Service Act 1996. 9 (7) For subsection (4), a person has a direct pecuniary interest if the 10 person's spouse has a direct pecuniary interest. 11 of appointment 12 Duration 232.(1) A community visitor holds office for a term of not longer than 3 13 years.77 14 (2) A community visitor may resign office by signed notice of 15 resignation given to the chief executive. 16 (3) The chief executive may terminate the appointment of a community 17 visitor if the chief executive is satisfied the community visitor-- 18 (a) has become physically or mentally incapable of satisfactorily 19 performing the duties of a community visitor; or 20 (b) has performed the community visitor's duties carelessly, 21 incompetently or inefficiently; or 22 (c) is guilty of misconduct that could warrant dismissal from the 23 public service if the community visitor were a public service 24 officer; or 25 (d) has been found guilty of an offence the chief executive considers 26 makes the person inappropriate to perform the duties of a 27 community visitor. 28 77 A community visitor may be reappointed--see Acts Interpretation Act 1954, section 25(1)(c).

 


 

s 233 131 s 235 Guardianship and Administration (4) The chief executive must terminate the appointment of a community 1 visitor if the chief executive is satisfied the community visitor is a person 2 who may not hold office as a community visitor under section 231(4). 3 of appointment 4 Terms 233.(1) The chief executive may decide the remuneration and allowances 5 payable to community visitors. 6 (2) A community visitor is to be paid the remuneration and allowances 7 decided by the chief executive. 8 (3) To the extent this Act does not state the terms on which a community 9 visitor holds office, the community visitor holds office on the terms decided 10 by the chief executive. 11 of identity cards 12 Issue 234.(1) The chief executive must give each community visitor an identity 13 card. 14 (2) The identity card must-- 15 (a) contain a recent photo of the community visitor; and 16 (b) be in the approved form; and 17 (c) be signed by the community visitor; and 18 (d) identify the person as a community visitor under this Act; and 19 (e) state when the appointment ends. 20 or display of identity card 21 Production 235. When exercising a power under this Act at a visitable site, a 22 community visitor must-- 23 (a) first produce the community visitor's identity card for inspection; 24 or 25 (b) have the identity card displayed so that it is clearly visible. 26

 


 

s 236 132 s 238 Guardianship and Administration to return identity card 1 Failure 236. A person who ceases to be a community visitor must return the 2 person's identity card to the chief executive within 21 days after ceasing to 3 be an community visitor, unless the person has a reasonable excuse. 4 Maximum penalty--10 penalty units. 5 report by chief executive 6 Annual 237. The department's chief executive must include in the department's 7 annual report for a financial year a report on the operations of community 8 visitors during the year, including the number of entries of visitable sites 9 outside normal hours authorised by the chief executive. 10 HAPTER 11--MISCELLANEOUS PROVISIONS 11 C ART 1--RELATIONSHIP WITH CRIMINAL LAW 12 P does not authorise euthanasia or affect particular provisions of 13 Act Criminal Code 14 238. To remove doubt it is declared that nothing in this Act-- 15

 


 

s 239 133 s 239 Guardianship and Administration (a) authorises, justifies or excuses killing a person; or 1 (b) affects the Criminal Code, section 284 or chapter 28.78 2 ART 2--RELATIONSHIP WITH COURT 3 P JURISDICTION 4 guardian process not affected 5 Litigation 239. This Act does not affect rules of court of the Supreme Court, 6 District Court or Magistrates Courts about a litigation guardian for a person 7 under a legal incapacity. 8 78 Criminal Code-- `Consent to death immaterial `284. Consent by a person to the causing of the person's own death does not affect the criminal responsibility of any person by whom such death is caused.'. Chapter 28 (Homicide--suicide--concealment of birth), including-- `Acceleration of death `296. A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person. `Aiding suicide `311. Any person who-- (a) procures another to kill himself or herself; or (b) counsels another to kill himself or herself and thereby induces the other person to do so; or (c) aids another in killing himself or herself; is guilty of a crime, and is liable to imprisonment for life.'.

 


 

s 240 134 s 244 Guardianship and Administration Court's inherent jurisdiction not affected 1 Supreme 240. This Act does not affect the court's inherent jurisdiction,79 including 2 its parens patriae jurisdiction. 3 of proceeding 4 Transfer 241.(1) The court may, if it considers it appropriate, transfer a proceeding 5 within the tribunal's jurisdiction to the tribunal. 6 (2) The tribunal may, if it considers it appropriate, transfer a proceeding 7 within the court's jurisdiction to the court. 8 (3) The transfer may be ordered on the court's or tribunal's initiative or 9 on the application of an active party to the proceeding. 10 of proceeding concerning an enduring document 11 Stay 242. If there is a Supreme Court proceeding, and a tribunal proceeding, 12 about an enduring document or attorneys under an enduring document, 13 other than to the extent necessary for section 243, the tribunal must stay the 14 tribunal proceeding unless the court transfers the Supreme Court proceeding 15 to the tribunal. 16 appointed decision maker if Supreme Court proceeding 17 Interim 243.(1) If there is a Supreme Court proceeding about an adult's enduring 18 document or attorneys under an enduring document, the tribunal may 19 appoint guardians or administrators for the adult until the proceeding is 20 resolved. 21 (2) The appointment may be made on the tribunal's initiative or on the 22 application of the adult or anyone else. 23 3 applies for interim appointment 24 Chapter 244. Chapter 380 applies for the appointment under section 243. 25 79 "Court" means the Supreme Court--see schedule 4 (Dictionary). 80 Chapter 3 (Appointment of guardians and administrators)

 


 

s 245 135 s 246 Guardianship and Administration PART 3--SETTLEMENTS OR DAMAGES AWARDS 1 or damages awards 2 Settlements 245.(1) This section applies if, in a civil proceeding-- 3 (a) the court sanctions a settlement between another person and an 4 adult or orders an amount to be paid by another person to an 5 adult; and 6 (b) the court considers the adult is a person with impaired capacity for 7 a matter. 8 (2) The court may exercise all the powers of the tribunal under chapter 3. 9 (3) Chapter 3 applies to the court in its exercise of these powers as if the 10 court were the tribunal. 11 (4) As soon as practicable after a court makes an order under this section, 12 the registrar of the court must give a copy of the order to the tribunal. 13 (5) In this section-- 14 "court" means the Supreme Court or the District Court. 15 "settlement" includes compromise or acceptance of an amount paid into 16 court. 17 PART 4--PROTECTION FROM LIABILITY AND 18 DEALING WITH INFORMATION 19 for pt 4 20 Definitions 246. In this part-- 21 "adult guardian's delegate for an investigation" means a delegate of the 22 adult guardian under section 181(1). 23 "tribunal expert" means-- 24 (a) a person engaged under a procedural direction to help the tribunal 25 in a proceeding; or 26

 


 

s 247 136 s 248 Guardianship and Administration (b) a person required under a procedural direction to prepare and 1 produce a report or document to be given to the tribunal. 2 protection 3 Whistleblowers' 247.(1) A person is not liable, civilly, criminally or under an 4 administrative process, for disclosing to an official information about a 5 person's conduct that breaches this Act or the Powers of Attorney Act 1998. 6 (2) Without limiting subsection (1)-- 7 (a) in a proceeding for defamation the discloser has a defence of 8 absolute privilege for publishing the disclosed information; and 9 (b) if the discloser would otherwise be required to maintain 10 confidentiality about the disclosed information under an Act, oath, 11 rule of law or practice, the discloser-- 12 (i) does not contravene the Act, oath, rule of law or practice for 13 disclosing the information; and 14 (ii) is not liable to disciplinary action for disclosing the 15 information. 16 (3) A person's liability for the person's own conduct is not affected only 17 because the person discloses it to an official. 18 (4) In this section-- 19 "official" means-- 20 (a) the registrar or a member of the tribunal staff; or 21 (b) the adult guardian, a member of the adult guardian's staff or an 22 adult guardian's delegate for an investigation; or 23 (c) the public advocate or a member of the public advocate's staff; or 24 (d) a community visitor. 25 from liability if honest and not negligent 26 Protection 248.(1) A person is not civilly liable for an act done, or an omission 27 made, honestly and without negligence under this Act or the Powers of 28 Attorney Act 1998. 29

 


 

s 249 137 s 249 Guardianship and Administration (2) If subsection (1) prevents a civil liability attaching to a person, the 1 liability attaches instead to the State. 2 (3) However, no-one, including the State, is liable for an honest report by 3 a community visitor under section 230.81 4 (4) In this section-- 5 "person" means-- 6 (a) the president, a deputy president or another tribunal member; or 7 (b) the registrar, a member of the tribunal staff or a tribunal expert; or 8 (c) the adult guardian or a member of the adult guardian's staff; or 9 (d) a professional consulted or employed by the adult guardian or an 10 adult guardian's delegate for an investigation; or 11 (e) the public advocate or a member of the public advocate's staff; or 12 (f) a community visitor. 13 of confidentiality 14 Preservation 249.(1) If a person gains confidential information because of the person's 15 involvement in this Act's administration, the person must not make a record 16 of the information or intentionally or recklessly disclose the information to 17 anyone other than under subsection (3). 18 Maximum penalty--100 penalty units. 19 (2) A person gains information through involvement in this Act's 20 administration if the person gains the information because of being, or an 21 opportunity given by being-- 22 (a) the president, a deputy president or another tribunal member; or 23 (b) the registrar, a member of the tribunal staff or a tribunal expert; or 24 (c) the adult guardian or a member of the adult guardian's staff; or 25 (d) a professional consulted or employed by the adult guardian or an 26 adult guardian's delegate for an investigation; or 27 (e) the public advocate or a member of the public advocate's staff; or 28 81 Section 230 (Reports by community visitors)

 


 

s 250 138 s 250 Guardianship and Administration (f) a guardian or administrator; or 1 (g) a community visitor. 2 (3) A person may make a record of confidential information, or disclose 3 it to someone else-- 4 (a) for this Act; or 5 (b) to discharge a function under another law; or 6 (c) for a proceeding in a court or relevant tribunal; or 7 (d) if authorised under a regulation or another law; or 8 (e) if authorised by the person to whom the information relates; or 9 (f) if authorised by the tribunal in the public interest because a 10 person's life or physical safety could otherwise reasonably be 11 expected to be endangered. 12 (4) In this section-- 13 "confidential information" includes information about a person's affairs 14 but does not include-- 15 (a) information already publicly disclosed unless further disclosure of 16 the information is prohibited by law; or 17 (b) statistical or other information that could not reasonably be 18 expected to result in the identification of the person to whom the 19 information relates. 20 of information about investigations 21 Disclosure 250.(1) Section 249 does not prevent the adult guardian from disclosing 22 information to a person or to members of the public about an issue the 23 subject of an investigation by the adult guardian if the adult guardian is 24 satisfied the disclosure is necessary and reasonable in the public interest. 25 (2) However, the adult guardian must not make the disclosure if it is 26 likely to prejudice the investigation. 27 (3) In a disclosure under subsection (1), the adult guardian-- 28

 


 

s 251 139 s 253 Guardianship and Administration (a) may express an opinion expressly or impliedly critical of an entity 1 only if the adult guardian has given the entity an opportunity to 2 answer the criticism; and 3 (b) may identify the complainant, directly or indirectly, only if it is 4 necessary and reasonable. 5 PART 5--FORMS AND REGULATIONS 6 executive may approve forms 7 Chief 251. The chief executive may approve forms for use under this Act. 8 power 9 Regulation-making 252. The Governor in Council may make regulations under this Act. 10 CHAPTER 12--TRANSITIONAL PROVISIONS AND 11 REPEAL 12 ART 1--TRANSITIONAL PROVISIONS FOR 13 P ADULT GUARDIAN 14 for pt 1 15 Definitions 253. In this part-- 16 "repealed chapter" means the Powers of Attorney Act 1998, chapter 7.82 17 82 Powers of Attorney Act 1998, chapter 7 (Adult guardian)

 


 

s 254 140 s 255 Guardianship and Administration of adult guardian continues 1 Appointment 254. From the repeal of the repealed chapter, the person holding office as 2 adult guardian immediately before the repeal of the repealed chapter 3 continues in office for the balance of the person's term as the adult guardian 4 appointed under section 199.83 5 things continued 6 Particular 255. From the repeal of the repealed chapter, a thing done under a 7 provision of the repealed chapter mentioned in column 1 and in force 8 immediately before the repeal of the repealed chapter continues to have 9 effect after the repeal as a thing done under the corresponding provision of 10 this Act mentioned in column 2. 11 Column 1--provisions of the Column 2--corresponding 12 repealed chapter provision in this Act section 130 section 177 section 131 section 178 section 132 section 179 section 134 section 180 section 135 section 182 section 136 section 183 section 137 sections 184 and 185 section 138 section 189 section 142 section 193 section 143 section 194 section 144 sections 195 and 196 section 145 sections 148 and 197 section 146 section 149 83 Section 199 (Appointment)

 


 

s 256 141 s 257 Guardianship and Administration section 149 section 151 section 154 section 204 1 Example-- 2 A notice given by the adult guardian under the Powers of Attorney Act 1998, 3 section 144 suspending operation of an attorney's power and that is in force 4 immediately before the repeal of the repealed chapter continues to have effect after 5 the repeal for the remainder of the suspension period as a suspension under section 6 195 of this Act. Section 196 of this Act applies during the suspension. ART 2--TRANSITIONAL PROVISIONS FOR 7 P COMMITTEE 8 to apply to court for compensation for loss of benefit in estate 9 Power because of committee 10 256.(1) If a person's benefit in an adult's estate under the adult's will, on 11 intestacy, or by another disposition taking effect on the adult's death, is lost 12 because of a sale or other dealing with the adult's property by a committee 13 of the adult, section 60 84 applies as if references in the section to an 14 administrator were references to the committee. 15 (2) Subsection (1) applies whether the sale or other dealing happens 16 before or after the commencement of this section. 17 power if committee 18 Tribunal's 257. If a committee for a person continues after the commencement of 19 this section, the tribunal may make an order setting aside the committee and 20 may make any other appropriate order. 21 84 Section 60 (Power to apply to court for compensation for loss of benefit in estate)

 


 

s 258 142 s 260 Guardianship and Administration PART 3--TRANSITIONAL PROVISIONS FOR, AND 1 REPEAL OF, INTELLECTUALLY DISABLED 2 CITIZENS ACT 1985 3 for pt 3 4 Definitions 258. In this part-- 5 "repealed Act" means the Intellectually Disabled Citizens Act 1985. 6 guardian assumes legal friend responsibilities 7 Adult 259.(1) If, immediately before the repeal of the repealed Act, the legal 8 friend is authorised to act, or is acting, under section 26 of the repealed 9 Act85 for a person-- 10 (a) the adult guardian is taken to have been authorised to act for the 11 person under section 26 of the repealed Act; and 12 (b) the repealed Act applies to the adult guardian as if references to 13 the legal friend were references to the adult guardian and the 14 repealed Act had not been repealed. 15 (2) The adult guardian's authority under subsection (1) ends if the adult 16 guardian receives a written request from the person's administrator that the 17 adult guardian no longer act under the authority. 18 by public trustee 19 Management 260.(1) If, immediately before the repeal of the repealed Act, the public 20 trustee manages a person's estate under section 32(1) and (2) of the repealed 21 Act,86 then, on the repeal of the repealed Act the public trustee is taken to be 22 appointed by the tribunal as the person's administrator for all financial 23 matters. 24 85 Intellectually Disabled Citizens Act 1985, section 26 (Legal friend) 86 Intellectually Disabled Citizens Act 1985, section 32 (Public trustee to manage estates of certain assisted citizens)

 


 

s 261 143 s 263 Guardianship and Administration (2) If, immediately before the repeal of the repealed Act, the public 1 trustee manages a person's estate under section 32(1A) and (2) of the 2 repealed Act, then, on the repeal of the repealed Act-- 3 (a) the public trustee is taken to be appointed by the tribunal as the 4 person's administrator for all financial matters; and 5 (b) the tribunal must review the appointment under chapter 3, part 3, 6 division 2 as soon as practicable. 7 records to be given to tribunal 8 Council 261. The records of the Intellectually Disabled Citizens Council of 9 Queensland constituted under the repealed Act are to become the records of 10 the tribunal. 11 12 Repeal 262. The Intellectually Disabled Citizens Act 1985 is repealed. 13 CHAPTER 13--AMENDMENTS 14 amended in sch 3 15 Act 263. Schedule 3 amends the Acts it mentions. 16 17

 


 

144 Guardianship and Administration SCHEDULE 1 1 ¡ RINCIPLES 2 P section 11 3 PART 1--GENERAL PRINCIPLES 4 of capacity 5 Presumption 1. An adult is presumed to have capacity for a matter. 6 human rights 7 Same 2.(1) The right of all adults to the same basic human rights regardless of 8 a particular adult's capacity must be recognised and taken into account. 9 (2) The importance of empowering an adult to exercise the adult's basic 10 human rights must also be recognised and taken into account. 11 value 12 Individual 3. An adult's right to respect for his or her human worth and dignity as 13 an individual must be recognised and taken into account. 14 role as member of society 15 Valued 4.(1) An adult's right to be a valued member of society must be 16 recognised and taken into account. 17 (2) Accordingly, the importance of encouraging and supporting an adult 18 to perform social roles valued in society must be taken into account. 19

 


 

145 Guardianship and Administration SCHEDULE 1 (continued) in community life 1 Participation 5. The importance of encouraging and supporting an adult to live a life in 2 the general community, and to take part in activities enjoyed by the general 3 community, must be taken into account. 4 of self-reliance 5 Encouragement 6. The importance of encouraging and supporting an adult to achieve the 6 adult's maximum physical, social, emotional and intellectual potential, and 7 to become as self-reliant as practicable, must be taken into account. 8 participation, minimal limitations and substituted 9 Maximum judgment 10 7.(1) An adult's right to participate, to the greatest extent practicable, in 11 decisions affecting the adult's life, including the development of policies, 12 programs and services for people with impaired capacity for a matter, must 13 be recognised and taken into account. 14 (2) Also, the importance of preserving, to the greatest extent practicable, 15 an adult's right to make his or her own decisions must be taken into 16 account. 17 (3) So, for example-- 18 (a) the adult must be given any necessary support, and access to 19 information, to enable the adult to participate in decisions affecting 20 the adult's life; and 21 (b) to the greatest extent practicable, for exercising power for a matter 22 for the adult, the adult's views and wishes are to be sought and 23 taken into account; and 24 (c) a person or other entity in performing a function or exercising a 25 power under this Act must do so in the way least restrictive of the 26 adult's rights. 27 (4) Also, the principle of substituted judgment must be used so that if, 28 from the adult's previous actions, it is reasonably practicable to work out 29 what the adult's views and wishes would be, a person or other entity in 30

 


 

146 Guardianship and Administration SCHEDULE 1 (continued) performing a function or exercising a power under this Act must take into 1 account what the person or other entity considers would be the adult's views 2 and wishes. 3 (5) However, a person or other entity in performing a function or 4 exercising a power under this Act must do so in a way consistent with the 5 adult's proper care and protection. 6 (6) Views and wishes may be expressed orally, in writing or in another 7 way, including, for example, by conduct. 8 of existing supportive relationships 9 Maintenance 8. The importance of maintaining an adult's existing supportive 10 relationships must be taken into account. 11 of environment and values 12 Maintenance 9.(1) The importance of maintaining an adult's cultural and linguistic 13 environment, and set of values (including any religious beliefs), must be 14 taken into account. 15 (2) For an adult who is a member of an Aboriginal community or a 16 Torres Strait Islander, this means the importance of maintaining the adult's 17 Aboriginal or Torres Strait Islander cultural and linguistic environment, and 18 set of values (including Aboriginal tradition87 or Island custom88), must be 19 taken into account. 20 87 "Aboriginal tradition" means the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships--see Acts Interpretation Act 1954, section 36. 88 "Island custom", known in the Torres Strait as Ailan Kastom, means the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally or of a particular community or group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships--see Acts Interpretation Act 1954, section 36.

 


 

147 Guardianship and Administration SCHEDULE 1 (continued) to circumstances 1 Appropriate 10. Power for a matter should be exercised by a guardian or 2 administrator for an adult in a way that is appropriate to the adult's 3 characteristics and needs. 4 5 Confidentiality 11. An adult's right to confidentiality of information about the adult must 6 be recognised and taken into account. 7 ART 2--HEALTH CARE PRINCIPLE 8 P care principle 9 Health 12.(1) The "health care principle" means power for a health matter for 10 an adult should be exercised by a guardian, the adult guardian, the tribunal 11 or, for prescribed special health care, another entity-- 12 (a) in the way least restrictive of the adult's rights; and 13 (b) only if the exercise of the power is appropriate to promote and 14 maintain the adult's health and wellbeing. 15 16 Example of exercising power in the way least restrictive of the adult's rights-- 17 If there is a choice between a more or less intrusive way of meeting an identified 18 need, the less intrusive way should be adopted. (2) In deciding whether the exercise of a power is appropriate, the 19 guardian, the adult guardian, tribunal or other entity must, to the greatest 20 extent practicable-- 21 (a) seek the adult's views and wishes and take them into account; and 22 (b) take the information given by the adult's health provider89 into 23 account. 24 89 See section 76 (Health providers to give information) of the Act.

 


 

148 Guardianship and Administration SCHEDULE 1 (continued) (3) The adult's views and wishes may be expressed-- 1 (a) orally; or 2 (b) in writing, for example, in an advance health directive; or 3 (c) in another way, including, for example, by conduct. 4 (4) The health care principle does not affect any right an adult has to 5 refuse health care. 6 (5) In deciding whether to consent to special health care for an adult, the 7 tribunal or other entity must, to the greatest extent practicable, seek the 8 views of the following person and take them into account-- 9 (a) a guardian appointed by the tribunal for the adult; 10 (b) if there is no guardian mentioned in paragraph (a), an attorney for 11 a health matter appointed by the adult; 12 (c) if there is no guardian or attorney mentioned in paragraph (a) 13 or (b), the statutory health attorney for the adult. 14 15

 


 

149 Guardianship and Administration SCHEDULE 2 1 ¡ TYPES OF MATTERS 2 schedule 4 3 PART 1--FINANCIAL MATTER 4 matter 5 Financial 1. A "financial matter", for an adult, is a matter relating to the adult's 6 financial or property matters, including, for example, a matter relating to 1 7 or more of the following-- 8 (a) paying maintenance and accommodation expenses for the adult 9 and the adult's dependants, including, for example, purchasing an 10 interest in, or making another contribution to, an establishment 11 that will maintain or accommodate the adult or a dependant of the 12 adult; 13 (b) paying the adult's debts, including any fees and expenses to 14 which an administrator is entitled under a document made by the 15 adult or under a law; 16 (c) receiving and recovering money payable to the adult; 17 (d) carrying on a trade or business of the adult; 18 (e) performing contracts entered into by the adult; 19 (f) discharging a mortgage over the adult's property; 20 (g) paying rates, taxes, insurance premiums or other outgoings for 21 the adult's property; 22 (h) insuring the adult or the adult's property; 23 (i) otherwise preserving or improving the adult's estate; 24 (j) investing for the adult in authorised investments; 25

 


 

150 Guardianship and Administration SCHEDULE 2 (continued) (l) continuing investments of the adult, including taking up rights to 1 issues of new shares, or options for new shares, to which the 2 adult becomes entitled by the adult's existing shareholding; 3 (m) undertaking an authorised real estate transaction for the adult; 4 (n) with the tribunal's approval, undertaking a real estate transaction 5 for the adult that is not an authorised real estate transaction; 6 (o) undertaking an authorised security transaction for the adult; 7 (p) with the tribunal's approval, undertaking a security transaction for 8 the adult that is not an authorised security transaction; 9 (q) a legal matter relating to the adult's financial or property matters. 10 PART 2--PERSONAL MATTER 11 matter 12 Personal 2. A "personal matter" , for an adult, is a matter, other than a special 13 personal matter or special health matter, relating to the adult's care, 14 including the adult's health care, or welfare, including, for example, a matter 15 relating to 1 or more of the following-- 16 (a) where the adult lives; 17 (b) with whom the adult lives; 18 (c) whether the adult works and, if so, the kind and place of work and 19 the employer; 20 (d) what education or training the adult undertakes; 21 (e) whether the adult applies for a licence or permit; 22 (f) day-to-day issues, including, for example, diet and dress; 23 (g) health care of the adult; 24 (h) a legal matter not relating to the adult's financial or property 25 matters. 26

 


 

151 Guardianship and Administration SCHEDULE 2 (continued) personal matter 1 Special 3. A "special personal matter", for an adult, is a matter relating to 1 or 2 more of the following-- 3 (a) making or revoking the adult's will; 4 (b) making or revoking a power of attorney, enduring power of 5 attorney or advance health directive of the adult; 6 (c) exercising the adult's right to vote in a Commonwealth, State or 7 local government election or referendum; 8 (d) consenting to adoption of a child of the adult under 18 years; 9 (e) consenting to marriage of the adult.90 10 matter 11 Health 4. A "health matter", for an adult, is a matter relating to health care, 12 other than special health care, of the adult. 13 care 14 Health 5.(1) "Health care", of an adult, is care or treatment of, or a service or a 15 procedure for, the adult-- 16 (a) to diagnose, maintain, or treat the adult's physical or mental 17 condition; and 18 (b) carried out by, or under the direction or supervision of, a health 19 provider. 20 (2) "Health care", of an adult, does not include-- 21 (a) first aid treatment; or 22 (b) a non-intrusive examination made for diagnostic purposes; or 23 (c) the administration of a pharmaceutical drug if-- 24 90 An attorney under an enduring document or a guardian may not be given power for a special personal matter.

 


 

152 Guardianship and Administration SCHEDULE 2 (continued) (i) a prescription is not needed to obtain the drug; and 1 (ii) the drug is normally self-administered; and 2 (iii) the administration is for a recommended purpose and at a 3 recommended dosage level. 4 5 Example of paragraph (b)-- 6 A visual examination of an adult's mouth, throat, nasal cavity, eyes or ears. health matter 7 Special 6. A "special health matter", for an adult, is a matter relating to special 8 health care of the adult.91 9 health care 10 Special 7. "Special health care", of an adult, is health care of the following 11 types-- 12 (a) removal of tissue from the adult while alive 92 for donation to 13 someone else; 14 (b) sterilisation of the adult; 15 (c) termination of a pregnancy of the adult; 16 (d) participation by the adult in special medical research or 17 experimental health care; 18 (e) electroconvulsive therapy or psychosurgery for the adult; 19 91 An attorney under an enduring document or a guardian may not be given power for a special health matter. However, an adult may give a direction about a special health matter in an advance health directive. Alternatively, in particular circumstances the tribunal may consent to particular special health care--see section 68. 92 For the situation after the adult has died, see the Transplantation and Anatomy Act 1979, particularly section 22.

 


 

153 Guardianship and Administration SCHEDULE 2 (continued) (f) withholding or withdrawal of special life-sustaining measures for 1 the adult; 2 (g) prescribed special health care of the adult. 3 of tissue for donation 4 Removal 8.(1) For an adult, "removal of tissue for donation" to someone else 5 includes removal of tissue from the adult so laboratory reagents, or 6 reference and control materials, derived completely or partly from pooled 7 human plasma may be given to the other person. 8 (2) "Tissue" is-- 9 (a) an organ, blood or part of a human body; or 10 (b) a substance that may be extracted from an organ, blood or part of 11 a human body. 12 13 Sterilisation 9.(1) "Sterilisation" is health care of an adult who is, or is reasonably 14 likely to be, fertile that is intended, or reasonably likely, to make the adult, or 15 ensure the adult is, permanently infertile. 16 17 Examples of sterilisation-- 18 Endometrial oblation, hysterectomy, tubal ligation and vasectomy. (2) Sterilisation does not include health care primarily to treat organic 19 malfunction or disease of the adult. 20 21 Termination 10. "Termination", of a pregnancy of an adult, does not include health 22 care primarily to treat organic malfunction or disease of the adult. 23

 


 

154 Guardianship and Administration SCHEDULE 2 (continued) reason for treatment 1 Primary 11. "Health care primarily to treat organic malfunction or disease", 2 of an adult, is health care without which an organic malfunction or disease 3 of the adult is likely to cause serious or irreversible damage to the adult's 4 physical health. 5 6 Examples-- 7 1. Health care involving sterilisation may be primarily to treat organic malfunction 8 or disease if the adult has cancer affecting the reproductive system or cryptorchidism. 9 2. A procedure involving termination of a pregnancy may be primarily to treat 10 organic malfunction if the adult is a pregnant woman requiring abdominal surgery for 11 injuries sustained in an accident. medical research or experimental health care 12 Special 12.(1) "Special medical research or experimental health care", for an 13 adult, means-- 14 (a) medical research or experimental health care relating to a 15 condition the adult has or to which the adult has a significant risk 16 of being exposed; or 17 (b) medical research or experimental health care intended to gain 18 knowledge that can be used in the diagnosis, maintenance or 19 treatment of a condition the adult has or has had. 20 (2) "Special medical research or experimental health care" does not 21 include-- 22 (a) psychological research; or 23 (b) approved clinical research. 24 clinical research 25 Approved 13.(1) "Clinical research" is-- 26 (a) medical research intended to diagnose, maintain or treat a 27 condition affecting the participants in the research; or 28

 


 

155 Guardianship and Administration SCHEDULE 2 (continued) (b) a trial of drugs or techniques involving the carrying out of health 1 care that may include the giving of placebos to some of the 2 participants in the trial. 3 (2) "Approved clinical research" is clinical research approved by the 4 tribunal. 5 (3) The tribunal may approve clinical research only if the tribunal is 6 satisfied about the following matters-- 7 (a) the clinical research is approved by an ethics committee; 8 (b) any drugs or techniques on trial in the clinical research are 9 intended to diagnose, maintain or treat a condition affecting the 10 participants in the research; 11 (c) the research will not involve any known substantial risk to the 12 participants or, if there is existing health care for the particular 13 condition, the research will not involve known material risk to the 14 participants greater than the risk associated with the existing health 15 care; 16 (d) the development of any drugs or techniques on trial has reached a 17 stage at which safety and ethical considerations make it 18 appropriate for the drugs or techniques to be made available to the 19 participants despite the participants being unable to consent to 20 participation; 21 (e) having regard to the potential benefits and risks of participation, 22 on balance it is not adverse to the interests of the participants to 23 participate. 24 (4) The fact that a trial of drugs or techniques will or may involve the 25 giving of placebos to some of the participants does not prevent the tribunal 26 from being satisfied it is, on balance, not adverse to the interests of the 27 participants to participate. 28

 


 

156 Guardianship and Administration SCHEDULE 2 (continued) (5) The tribunal's approval of clinical research does not operate as a 1 consent to the participation in the clinical research of any particular person.93 2 therapy 3 Electroconvulsive 14. "Electroconvulsive therapy" is the application of electric current to 4 specific areas of the head to produce a generalised seizure that is modified 5 by general anaesthesia and the administration of a muscle relaxing agent. 6 7 Psychosurgery 15. "Psychosurgery" is a neurosurgical procedure to diagnose or treat a 8 mental illness, but does not include a surgical procedure for treating 9 epilepsy, Parkinson's disease or another neurological disorder. 10 life-sustaining measures 11 Special 16.(1) "Special life-sustaining measures" is health care intended to 12 sustain or prolong life and which supplants or maintains the operation of 13 vital bodily functions that are temporarily or permanently incapable of 14 independent operation, including-- 15 (a) cardiopulmonary resuscitation; and 16 (b) assisted ventilation; and 17 (c) artificial nutrition and hydration. 18 (2) "Special life-sustaining measures" does not include a blood 19 transfusion. 20 93 As to who may consent to participation in approved clinical research, see section 66 (Adult with impaired capacity--order of priority in dealing with health matter). As to participation in approved clinical research without consent, see sections 63 (Urgent health care) and 64 (Minor, uncontroversial health care).

 


 

157 Guardianship and Administration SCHEDULE 2 (continued) special health care 1 Prescribed 17. "Prescribed special health care" means health care prescribed 2 under a regulation for this section. 3 ART 3--LEGAL MATTER 4 P matter 5 Legal 18. A "legal matter", for an adult, includes a matter relating to-- 6 (a) use of legal services to obtain information about the adult's legal 7 rights; and 8 (b) use of legal services to undertake a transaction; and 9 (c) use of legal services to bring or defend a proceeding before a 10 court, tribunal or other entity, including an application under the 11 Succession Act 1981, part 494 or an application for compensation 12 arising from a compulsory acquisition; and 13 (d) bringing or defending a proceeding, including settling a claim, 14 whether before or after the start of a proceeding. 15 16 94 This enables the Supreme Court to make provision for a dependant of a deceased person from the deceased person's estate if adequate provision is not made from the estate for the dependant's proper maintenance and support.

 


 

158 Guardianship and Administration SCHEDULE 3 1 ¡ CTS AMENDED 2 A section 263 3 HEALTH ACT 1937 4 ´ 1. Part 3, division 3-- 5 omit. 6 HEALTH RIGHTS COMMISSION ACT 1991 7 ´ 1. Section 60(3)-- 8 omit insert-- 9 `(3) However, any of the following persons may make a health service 10 complaint on behalf of a user who has impaired capacity for a matter within 11 the meaning of the Guardianship and Administration Act 1999-- 12 (a) an attorney for the user under an enduring power of attorney, or 13 advance health directive, under the Powers of Attorney Act 1998; 14 (b) a statutory health attorney under the Powers of Attorney Act 1998; 15 or 16 (c) a guardian for the user under the Guardianship and 17 Administration Act 1999; 18 (d) the adult guardian under the Guardianship and Administration 19 Act 1999.'. 20

 


 

159 Guardianship and Administration SCHEDULE 3 (continued) LAND ACT 1994 1 ´ 1. Section 151(c)-- 2 omit, insert-- 3 `(c) an administrator under the Guardianship and Administration Act 4 1999 for a lessee; or'. 5 2. Section 207(1)(b)-- 6 omit, insert-- 7 `(b) an administrator under the Guardianship and Administration Act 8 1999 is appointed for a lessee--the condition may be performed 9 by a family member or the administrator; or'. 10 3.Section 384-- 11 omit. 12 4. Before part 2-- 13 insert-- 14 `PART 1B--TRANSITIONAL PROVISIONS FOR 15 GUARDIANSHIP AND ADMINISTRATION ACT 1999 16 `Performance of condition under previous s 207(1)(b) possible for 1 17 year 18 `521B. Without limiting the operation of section 207(1)(b) as in force 19 immediately after the commencement of this section, section 207(1)(b) as in 20 force immediately before the commencement of this section also continues 21 to have effect for 1 year after the commencement of this section as if the 22 section had not been amended by the Guardianship and Administration Act 23 1999. 24

 


 

160 Guardianship and Administration SCHEDULE 3 (continued) `Authorisation under repealed s 384 continues for 1 year 1 `521C. An authorisation under section 384 that is in force immediately 2 before the repeal of the section continues to have effect for 1 year after the 3 repeal as if the section had not been repealed.'. 4 AND TITLE ACT 1994 5 ´L 1. Section 136-- 6 omit. 7 2. Part 12, heading-- 8 omit, insert-- 9 `PART 12--SAVINGS AND TRANSITIONAL 10 PROVISIONS 11 `Division 1--Savings and transitional provisions for Act No. 11 of 1994'. 12 3. After section 207-- 13 insert-- 14 `Division 2--Transitional provision for Act No. 57 of 1995'. 15 4. After section 208-- 16 insert-- 17

 


 

161 Guardianship and Administration SCHEDULE 3 (continued) `Division 3--Transitional provision for Guardianship and 1 Administration Act 1999 2 `Authorisation under repealed s 136 continues for 1 year 3 `209. An authorisation under section 136 that is in force immediately 4 before the repeal of the section continues to have effect for 1 year after the 5 repeal as if the section had not been repealed.'. 6 LEGAL AID QUEENSLAND ACT 1997 7 ´ 1. Section 32(6), definition "legally assisted person"-- 8 omit, insert-- 9 ` "legally assisted person" includes a litigation guardian of a legally 10 assisted person.'. 11 MEDICAL ACT 1939 12 ´ 1. Section 52-- 13 omit. 14 MENTAL HEALTH ACT 1974 15 ´ 1. Section 55-- 16 omit. 17 2. Part 8-- 18 insert-- 19

 


 

162 Guardianship and Administration SCHEDULE 3 (continued) `Division 3--Provisions for Guardianship and Administration Act 1999 1 `Public trustee becomes administrator if managing estate 2 `81.(1) This section applies if, immediately before the repeal of 3 schedule 5, the public trustee managed a person's estate under the schedule, 4 section 2, 4 or 7. 5 `(2) On the repeal of the schedule, the public trustee is taken to be 6 appointed under the Guardianship and Administration Act 1999 by the 7 guardianship and administration tribunal as the person's administrator for 8 all financial matters. 9 `Committee continues for 1 year 10 `82. From the repeal of schedule 5-- 11 (a) a committee (other than the public trustee) of the person or estate 12 of a person appointed under section 4 or 7 of the repealed 13 schedule that is in force immediately before the schedule's repeal 14 continues in force for 1 year after the repeal; and 15 (b) schedule 5 applies in relation to the committee as if the schedule 16 had not been repealed.95'. 17 3. Schedule 5-- 18 omit. 19 95 See Guardianship and Administration Act 1999, section 256 (Power to apply to court for compensation for loss of benefit in estate because of committee).

 


 

163 Guardianship and Administration SCHEDULE 3 (continued) POWERS OF ATTORNEY ACT 1998 1 ´ 1. Section 5, `certain'-- 2 omit, insert-- 3 `particular'. 4 2. Section 5(5), from `in relation to'-- 5 omit, insert-- 6 `in relation to health care.96'. 7 3. Chapter 1, after section 6-- 8 insert-- 9 `Relationship with Guardianship and Administration Act 1999 10 `6A.(1) This Act is to be read in conjunction with the Guardianship and 11 Administration Act 1999 which provides a scheme by which-- 12 (a) the tribunal may appoint a guardian for an adult with impaired 13 capacity for personal matters97 to make particular decisions and 14 do particular other things for the adult in relation to the matters; 15 and 16 (b) the tribunal may appoint an administrator for an adult with 17 impaired capacity for financial matters to make particular 18 decisions and do particular other things for the adult in relation to 19 the matters; and 20 96 See Guardianship and Administration Act 1999, section 66(5) (Adult with impaired capacity--order of priority in dealing with health matter). 97 Personal matters do not include special personal matters or special health matters--schedule 2, section 2.

 


 

164 Guardianship and Administration SCHEDULE 3 (continued) (c) the tribunal may consent to particular special health care.98 1 `(2) The Guardianship and Administration Act 1999 also provides a 2 scheme for health care and special health care for adults with impaired 3 capacity for the matter concerned, including an order of priority for dealing 4 with health care and special health care.99 5 `(3) The Guardianship and Administration Act 1999 also provides for 6 the adult guardian, the public advocate and community visitors. 7 `(4) If there is an inconsistency between this Act and the Guardianship 8 and Administration Act 1999, the Guardianship and Administration Act 9 1999 prevails.'. 10 4. Section 33(4), from `and not'-- 11 omit, insert-- 12 `and not otherwise.100'. 13 5. Section 35(2)(b), `life-sustaining measures'-- 14 omit, insert-- 15 `special life-sustaining measures'. 16 6. Section 36(2), `life-sustaining'-- 17 omit, insert-- 18 `special life-sustaining'. 19 98 However, the tribunal may not consent to electroconvulsive therapy or psychosurgery--Guardianship and Administration Act 1999, section 68(1). 99 See Guardianship and Administration Act 1999, sections 65 and 66. 100 However, the priority of an attorney's power for a health matter is decided by the Guardianship and Administration Act 1999, section 66 (Adult with impaired capacity--order of priority in dealing with health matter). See, in particular, section 66(4).

 


 

165 Guardianship and Administration SCHEDULE 3 (continued) 7. Section 36(3), from `and not'-- 1 omit, insert-- 2 `and not otherwise.101'. 3 8. Section 43(2)-- 4 omit, insert-- 5 `(2) A principal may appoint 1 or more of the following-- 6 (a) a single attorney for a matter or all matters; 7 (b) different attorneys for different matters; 8 (c) a person to act as an attorney for a matter or all matters in a 9 circumstance stated in the enduring document; 10 (d) alternative attorneys for a matter or all matters so power is given 11 to a particular attorney only in a circumstance stated in the 12 enduring document; 13 (e) successive attorneys for a matter or all matters so power is given 14 to a particular attorney only when power given to a previous 15 attorney ends; 16 (f) joint or several, or joint and several, attorneys for a matter or all 17 matters; 18 (g) 2 or more joint attorneys for a matter or all matters, being a 19 number less than the total number of attorneys for the matter or 20 all matters.'. 21 101 However, the priority of an attorney's power for a health matter is decided by the Guardianship and Administration Act 1999, section 66 (Adult with impaired capacity--order of priority in dealing with health matter). See, in particular, section 66(4).

 


 

166 Guardianship and Administration SCHEDULE 3 (continued) 9. Section 50(2), from `later'-- 1 omit, insert-- 2 `later advance health directive.102'. 3 10. Chapter 3, part 5, division 3-- 4 insert-- 5 `Effect of revocation by joint attorney 6 `59A. If an attorney's power for a matter ends under this division and the 7 attorney was a joint attorney for the matter-- 8 (a) if, of the joint attorneys, there is 1 remaining attorney, the 9 remaining attorney may exercise power for the matter; and 10 (b) if, of the joint attorneys, there are 2 or more remaining attorneys, 11 the remaining attorneys may exercise power for the matter and, if 12 exercising power, must exercise power jointly.'. 13 11. Section 62(2), from `capacity'-- 14 omit, insert-- 15 `capacity for the matter.103'. 16 102 If there is a direction about a health matter in an advance health directive and a later enduring power of attorney giving an attorney power for the health matter, the direction prevails. See the Guardianship and Administration Act 1999, section 66 (Adult with impaired capacity--order of priority in dealing with health matter). 103 However, the priority of an attorney's power is decided by the Guardianship and Administration Act 1999, section 66 (Adult with impaired capacity--order of priority in dealing with health matter). See, in particular, section 66(5).

 


 

167 Guardianship and Administration SCHEDULE 3 (continued) 12. Section 63(1)(c), `adult.'-- 1 omit, insert-- 2 `adult.104'. 3 13. Sections 64 and 68-- 4 omit. 5 14. Section 70, heading-- 6 omit, insert-- 7 `Subject to guardian or administrator'. 8 15. Section 70(1)-- 9 omit, insert-- 10 `70.(1) If a person is appointed under the Guardianship and 11 Administration Act 1999 as guardian or administrator for a principal, an 12 attorney for the principal may exercise power only to the extent authorised 13 by the tribunal.'. 14 16. Section 79-- 15 omit, insert-- 16 `Consult with principal's other appointees or attorneys 17 `79.(1) If there are 2 or more persons who are guardian, administrator or 18 attorney for a principal, the persons must consult with one another on a 19 regular basis to ensure the principal's interests are not prejudiced by a 20 104 If there is a disagreement about which of 2 or more eligible people should be the statutory health attorney or how the power should be exercised, see the Guardianship and Administration Act 1999, section 42 (Disagreement about health matter).

 


 

168 Guardianship and Administration SCHEDULE 3 (continued) breakdown in communication between them.105 1 `(2) However, failure to comply with subsection (1) does not affect the 2 validity of an exercise of power by a guardian, administrator or attorney.'. 3 17. Section 80-- 4 omit, insert-- 5 `Act together with joint attorneys 6 `80.(1) Attorneys for a principal who may exercise power for a matter 7 jointly must exercise the power unanimously unless the enduring document 8 concerned provides otherwise. 9 `(2) If it is impracticable or impossible to exercise the power 10 unanimously, 1 or more of the attorneys, or another interested person for 11 the adult, may apply for directions to the court.'. 12 18. Section 84(2) and (3)-- 13 omit, insert-- 14 `(2) An attorney for financial matters may invest only in authorised 15 investments. 16 `(3) However, if, when the power became exercisable, the principal had 17 investments that were not authorised investments, an attorney for financial 18 matters may continue the investments, including by taking rights to issues 19 of new shares, or options for new shares, to which the principal becomes 20 entitled by the principal's existing shareholding. 21 `(4) In this section-- 22 "authorised investment" means-- 23 105 Note Guardianship and Administration Act 1999, sections 41 (Disagreement about matter other than health matter), 42 (Disagreement about health matter) and 43 (Acting contrary to health care principle).

 


 

169 Guardianship and Administration SCHEDULE 3 (continued) (a) an investment which, if the investment were of trust funds by a 1 trustee, would be an investment by the trustee exercising a power 2 of investment under the Trusts Act 1973, part 3; or 3 (b) an investment approved by the tribunal.'. 4 19. Chapter 5, part 4-- 5 omit. 6 20. Section 104-- 7 omit. 8 21. Section 106-- 9 omit, insert-- 10 `Compensation for failure to comply 11 `106.(1) An attorney may be ordered by a court to compensate the 12 principal (or, if the principal has died, the principal's estate) for a loss 13 caused by the attorney's failure to comply with this Act in the exercise of a 14 power. 15 `(2) Subsection (1) applies even if the attorney is convicted of an offence 16 in relation to the attorney's failure. 17 `(3) If the principal or attorney has died, the application for compensation 18 must be made to a court within 6 months after the death. 19 `(4) If the principal and attorney have died, the application for 20 compensation must be made to a court within 6 months after the first death. 21 `(5) A court may extend the application time. 22 `(6) Compensation paid under a court order must be taken into account in 23 assessing damages in a later civil proceeding in relation to the attorney's 24 exercise of the power. 25 `(7) In this section-- 26

 


 

170 Guardianship and Administration SCHEDULE 3 (continued) "attorney" means an attorney under-- 1 (a) a general power of attorney made under this Act; or 2 (b) an enduring document; or 3 (c) a power of attorney made otherwise than under this Act, whether 4 before or after its commencement. 5 "court" means any court.'. 6 22. Section 107-- 7 insert-- 8 `(1A) This section applies even if the person whose benefit is lost is the 9 attorney by whose dealing the benefit is lost.'. 10 23. Section 109, heading-- 11 omit, insert-- 12 `Inherent jurisdiction and litigation guardian process not affected'. 13 24. Section 109(2)-- 14 omit, insert-- 15 `(2) This Act does not affect rules of court of the Supreme Court, District 16 Court or Magistrates Courts about a litigation guardian for a person under a 17 legal incapacity.'. 18 25. Chapter 6, part 1, after section 109-- 19 insert-- 20 `Guardianship and Administration Tribunal also has jurisdiction and 21 powers about enduring documents 22 `109A.(1) The tribunal is given the same jurisdiction and powers for 23 enduring documents as the Supreme Court. 24

 


 

171 Guardianship and Administration SCHEDULE 3 (continued) `(2) For subsection (1), this Act applies, with necessary changes, as if 1 references to the Supreme Court were references to the tribunal.'. 2 26. Section 110(1)-- 3 omit, insert-- 4 `(1) An application may be made to the court for a declaration, order, 5 direction, recommendation or advice about something in, or related to, this 6 Act.'. 7 27. Section 118, example-- 8 omit. 9 28. Section 119-- 10 omit. 11 29. Chapter 7-- 12 omit. 13 30. Chapter 9, heading and chapter 9, part 1 heading-- 14 omit, insert-- 15 `CHAPTER 9--TRANSITIONAL PROVISIONS 16 `PART 1--TRANSITIONAL PROVISION FOR ACT 17 NO. 22 OF 1998'. 18 31. Chapter 9-- 19 insert-- 20

 


 

172 Guardianship and Administration SCHEDULE 3 (continued) `PART 2--TRANSITIONAL PROVISION FOR 1 GUARDIANSHIP AND ADMINISTRATION ACT 1999 2 `Subject to committee or manager 3 `164.(1) If a person, other than an attorney, is committee or manager of a 4 principal, or all or part of a principal's estate, the attorney may exercise 5 power for the principal only to the extent authorised by the committee or 6 manager. 7 `(2) In this section-- 8 "attorney" includes a statutory health attorney.'. 9 32. Schedule 1, section 7(1)-- 10 omit, insert-- 11 `(1) An adult's right to participate, to the greatest extent practicable, in 12 decisions affecting the adult's life, including the development of policies, 13 programs and services for people with impaired capacity for a matter, must 14 be recognised and taken into account.'. 15 33. Schedule 1, section 12(3), `Views'-- 16 omit, insert-- 17 `The adult's views'. 18 34. Schedule 2-- 19 omit, insert-- 20

 


 

173 Guardianship and Administration SCHEDULE 3 (continued) `SCHEDULE 2 1 `TYPES OF MATTERS 2 schedule 3 3 `PART 1--FINANCIAL MATTER 4 `Financial matter 5 `1. A "financial matter", for a principal, is a matter relating to the 6 principal's financial or property matters, including, for example, a matter 7 relating to 1 or more of the following-- 8 (a) paying maintenance and accommodation expenses for the 9 principal and the principal's dependants, including, for example, 10 purchasing an interest in, or making another contribution to, an 11 establishment that will maintain or accommodate the principal or 12 a dependant of the principal; 13 (b) paying the principal's debts, including any fees and expenses to 14 which an administrator is entitled under a document made by the 15 principal or under a law; 16 (c) receiving and recovering money payable to the principal; 17 (d) carrying on a trade or business of the principal; 18 (e) performing contracts entered into by the principal; 19 (f) discharging a mortgage over the principal's property; 20 (g) paying rates, taxes, insurance premiums or other outgoings for 21 the principal's property; 22 (h) insuring the principal or the principal's property; 23 (i) otherwise preserving or improving the principal's estate; 24 (j) investing for the principal in authorised investments; 25

 


 

174 Guardianship and Administration SCHEDULE 3 (continued) (l) continuing investments of the principal, including taking up rights 1 to issues of new shares, or options for new shares, to which the 2 principal becomes entitled by the principal's existing 3 shareholding; 4 (m) undertaking an authorised real estate transaction for the principal; 5 (n) with the tribunal's approval, undertaking a real estate transaction 6 for the principal that is not an authorised real estate transaction; 7 (o) undertaking an authorised security transaction for the principal; 8 (p) with the tribunal's approval, undertaking a security transaction for 9 the principal that is not an authorised security transaction; 10 (q) a legal matter relating to the principal's financial or property 11 matters. 12 `PART 2--PERSONAL MATTER 13 `Personal matter 14 `2. A "personal matter", for a principal, is a matter, other than a special 15 personal matter or special health matter, relating to the principal's care, 16 including the principal's health care, or welfare, including, for example, a 17 matter relating to 1 or more of the following-- 18 (a) where the principal lives; 19 (b) with whom the principal lives; 20 (c) whether the principal works and, if so, the kind and place of work 21 and the employer; 22 (d) what education or training the principal undertakes; 23 (e) whether the principal applies for a licence or permit; 24 (f) day-to-day issues, including, for example, diet and dress; 25 (g) health care of the principal; 26

 


 

175 Guardianship and Administration SCHEDULE 3 (continued) (h) a legal matter not relating to the principal's financial or property 1 matters. 2 `Special personal matter 3 `3. A "special personal matter", for a principal, is a matter relating to 1 4 or more of the following-- 5 (a) making or revoking the principal's will; 6 (b) making or revoking a power of attorney, enduring power of 7 attorney or advance health directive of the principal; 8 (c) exercising the principal's right to vote in a Commonwealth, State 9 or local government election or referendum; 10 (d) consenting to adoption of a child of the principal under 18 years; 11 (e) consenting to marriage of the principal.106 12 `Health matter 13 `4. A "health matter", for a principal, is a matter relating to health care, 14 other than special health care, of the principal. 15 `Health care 16 `5.(1) "Health care", of a principal, is care or treatment of, or a service 17 or a procedure for, the principal-- 18 (a) to diagnose, maintain, or treat the principal's physical or mental 19 condition; and 20 (b) carried out by, or under the direction or supervision of, a health 21 provider. 22 `(2) "Health care", of a principal, does not include-- 23 (a) first aid treatment; or 24 106 An attorney or guardian may not be given power for a special personal matter.

 


 

176 Guardianship and Administration SCHEDULE 3 (continued) (b) a non-intrusive examination made for diagnostic purposes; or 1 (c) the administration of a pharmaceutical drug if-- 2 (i) a prescription is not needed to obtain the drug; and 3 (ii) the drug is normally self-administered; and 4 (iii) the administration is for a recommended purpose and at a 5 recommended dosage level. 6 7 Example of paragraph (b)-- 8 A visual examination of a principal's mouth, throat, nasal cavity, eyes or ears. `Special health matter 9 `6. A "special health matter", for a principal, is a matter relating to 10 special health care of the principal.107 11 `Special health care 12 `7. "Special health care", of a principal, is health care of the following 13 types-- 14 (a) removal of tissue from the principal while alive108 for donation to 15 someone else; 16 (b) sterilisation of the principal; 17 (c) termination of a pregnancy of the principal; 18 (d) participation by the principal in special medical research or 19 experimental health care; 20 107 An attorney or guardian may not be given power for a special health matter. However, a principal may give a direction about a special health matter in an advance health directive. Alternatively, in particular circumstances the tribunal may consent to special health care. See the Guardianship and Administration Act 1999, section 68 (Special health matter). 108 For the situation after the principal has died, see the Transplantation and Anatomy Act 1979, particularly section 22.

 


 

177 Guardianship and Administration SCHEDULE 3 (continued) (e) electroconvulsive therapy or psychosurgery for the principal; 1 (f) withholding or withdrawal of special life-sustaining measures for 2 the principal; 3 (g) prescribed special health care of the principal. 4 `Removal of tissue for donation 5 `8.(1) For an adult, "removal of tissue for donation" to someone else 6 includes removal of tissue from the principal so laboratory reagents, or 7 reference and control materials, derived completely or partly from pooled 8 human plasma may be given to the other person. 9 `(2) "Tissue" is-- 10 (a) an organ, blood or part of a human body; or 11 (b) a substance that may be extracted from an organ, blood or part of 12 a human body. 13 `Sterilisation 14 `9.(1) "Sterilisation" is health care of a principal who is, or is reasonably 15 likely to be, fertile that is intended, or reasonably likely, to make the 16 principal, or ensure the principal is, permanently infertile. 17 18 Examples of sterilisation-- 19 Endometrial oblation, hysterectomy, tubal ligation and vasectomy. `(2) Sterilisation does not include health care primarily to treat organic 20 malfunction or disease of the principal. 21 `Termination 22 `10. "Termination", of a pregnancy of a principal, does not include 23 health care primarily to treat organic malfunction or disease of the principal. 24

 


 

178 Guardianship and Administration SCHEDULE 3 (continued) `Primary reason for treatment 1 `11. "Health care primarily to treat organic malfunction or disease", 2 of a principal, is health care without which an organic malfunction or 3 disease of the principal is likely to cause serious or irreversible damage to 4 the principal's physical health. 5 6 Examples-- 7 1. Health care involving sterilisation may be primarily to treat organic malfunction 8 or disease if the principal has cancer affecting the reproductive system or 9 cryptorchidism. 10 2. A procedure involving termination of a pregnancy may be primarily to treat 11 organic malfunction if the principal is a pregnant woman requiring abdominal surgery 12 for injuries sustained in an accident. `Special medical research or experimental health care 13 `12.(1) "Special medical research or experimental health care", for a 14 principal, means-- 15 (a) medical research or experimental health care relating to a 16 condition the principal has or to which the principal has a 17 significant risk of being exposed; or 18 (b) medical research or experimental health care intended to gain 19 knowledge that can be used in the diagnosis, maintenance or 20 treatment of a condition the principal has or has had. 21 `(2) "Special medical research or experimental health care" does not 22 include-- 23 (a) psychological research; or 24 (b) an approved clinical research. 25 `Approved clinical research 26 `13.(1) "Clinical research" is-- 27 (a) medical research intended to diagnose, maintain or treat a 28 condition affecting the participants in the research; or 29

 


 

179 Guardianship and Administration SCHEDULE 3 (continued) (b) a trial of drugs or techniques involving the carrying out of health 1 care that may include the giving of placebos to some of the 2 participants in the trial. 3 `(2) "Approved clinical research" is clinical research approved by the 4 tribunal under the Guardianship and Administration Act 1999, schedule 2, 5 section 13.109 6 `Electroconvulsive therapy 7 `14. "Electroconvulsive therapy" is the application of electric current to 8 specific areas of the head to produce a generalised seizure that is modified 9 by general anaesthesia and the administration of a muscle relaxing agent. 10 `Psychosurgery 11 `15. "Psychosurgery" is a neurosurgical procedure to diagnose or treat a 12 mental illness, but does not include a surgical procedure for treating 13 epilepsy, Parkinson's disease or another neurological disorder. 14 `Special life-sustaining measures 15 `16.(1) "Special life-sustaining measures" is health care intended to 16 sustain or prolong life and which supplants or maintains the operation of 17 vital bodily functions that are temporarily or permanently incapable of 18 independent operation, including-- 19 (a) cardiopulmonary resuscitation; and 20 (b) assisted ventilation; and 21 (c) artificial nutrition and hydration. 22 `(2) "Special life-sustaining measures" does not include a blood 23 transfusion. 24 109 Guardianship and Administration Act 1999, schedule 2 (Types of matters), section 13 (Approved clinical research)

 


 

180 Guardianship and Administration SCHEDULE 3 (continued) `Prescribed special health care 1 `17. "Prescribed special health care" means health care prescribed 2 under the Guardianship and Administration Act 1999. 3 `PART 3--LEGAL MATTER 4 `Legal matter 5 `18. A "legal matter", for a principal, includes a matter relating to-- 6 (a) use of legal services to obtain information about the principal's 7 legal rights; and 8 (b) use of legal services to undertake a transaction; and 9 (c) use of legal services to bring or defend a proceeding before a 10 court, tribunal or other entity, including an application under the 11 Succession Act 1981, part 4110 or an application for compensation 12 arising from a compulsory acquisition; and 13 (d) bringing or defending a proceeding, including settling a claim, 14 whether before or after the start of a proceeding.'. 15 35. Schedule 3, definitions "adult guardian", "capacity", "interested 16 person" and "life-sustaining measures"-- 17 omit. 18 36. Schedule 3-- 19 insert-- 20 110 This enables the Supreme Court to make provision for a dependant of a deceased person from the deceased person's estate if adequate provision is not made from the estate for the dependant's proper maintenance and support.

 


 

181 Guardianship and Administration SCHEDULE 3 (continued) ` "administrator" means an administrator appointed under the 1 Guardianship and Administration Act 1999. 2 "adult guardian" means the adult guardian appointed under the 3 Guardianship and Administration Act 1999. 4 "approved clinical research" see schedule 2, section 13. 5 "capacity", for a person for a matter, means the person is capable of-- 6 (a) understanding the nature and effect of decisions about the matter; 7 and 8 (b) freely and voluntarily making decisions about the matter; and 9 (c) communicating the decisions in some way. 10 "clinical research" see schedule 2, section 13(1). 11 "electroconvulsive therapy" see schedule 2, section 14. 12 "guardian" means a guardian appointed under the Guardianship and 13 Administration Act 1999. 14 "interested person", for another person, means a person who has a 15 sufficient and continuing interest in the other person.111 16 "legal matter" see schedule 2, section 18. 17 "prescribed special health care" see schedule 2, section 17. 18 "psychosurgery" see schedule 2, section 15. 19 "special life-sustaining measures" see schedule 2, section 16. 20 "special medical research or experimental health care" see schedule 2, 21 section 12. 22 "tribunal" means the Guardianship and Administration Tribunal under the 23 Guardianship and Administration Act 1999.'. 24 111 See Guardianship and Administration Act 1999, section 126 (Tribunal to decide who are interested persons).

 


 

182 Guardianship and Administration SCHEDULE 3 (continued) 37. Schedule 3, example for definition "matter", `certain'-- 1 omit, insert-- 2 `particular'. 3 UBLIC TRUSTEE ACT 1978 4 ´P 1. Section 6, definitions "court" and "under a legal disability"-- 5 omit. 6 2. Section 6-- 7 insert-- 8 ` "court" means the Supreme Court. 9 "person under a legal disability"-- 10 (a) for section 59--see section 59(1A); and 11 (b) otherwise--means a child.'. 12 3. Section 59(1A)-- 13 insert-- 14 `"appropriate person", for a person under a legal disability, means-- 15 (a) an administrator for the person under the Guardianship and 16 Administration Act 1999; or 17 (b) if the person does not have an administrator--an attorney for a 18 financial matter for the person under an enduring power of 19 attorney under the Powers of Attorney Act 1998; or 20 (c) if the person does not have an administrator or an attorney 21 mentioned in paragraph (b)--the public trustee. 22 "person under a legal disability" means-- 23 (a) a child; or 24

 


 

183 Guardianship and Administration SCHEDULE 3 (continued) (b) a person with impaired capacity for a matter within the meaning 1 of the Guardianship and Administration Act 1999.'. 2 4. Section 59(2), `other than the public trustee'-- 3 omit, insert-- 4 `other than the appropriate person for the person under a legal disability'. 5 5. Section 63A-- 6 omit. 7 6. Section 64, definitions, "estate under management", "incapacitated 8 person" and "patient"-- 9 omit. 10 7. Section 64-- 11 insert-- 12 `"estate under management" means-- 13 (a) a protected estate; or 14 (b) an estate the public trustee is authorised to manage under 15 division 4.112 16 "incapacitated person" means-- 17 (a) a protected person; or 18 (b) a person whose estate the public trustee is authorised to manage 19 under division 4.'. 20 112 Division 4 (Authority where other jurisdictions involved)

 


 

184 Guardianship and Administration SCHEDULE 3 (continued) 8. Section 64, definition "protected person", `or a certificate of 1 disability under this part'-- 2 omit. 3 9. Section 65(1), `person--'-- 4 omit, insert-- 5 `person who is under 18 years--'. 6 10. Section 66 (1), ` for 1 or more of the reasons provided in'-- 7 omit, insert-- 8 `under'. 9 11. Section 67(2)(b)-- 10 omit, insert-- 11 `(b) the plaintiff's litigation guardian;'. 12 12. Section 69(3), `by originating summons'-- 13 omit. 14 13. Section 69-- 15 insert-- 16 `(4) Despite subsections (1) and (2), a protection order for a person ends 17 when the person attains 18 years.'. 18 14. Sections 70 to 74-- 19 omit. 20

 


 

185 Guardianship and Administration SCHEDULE 3 (continued) 15. Section 78(1)-- 1 omit, insert-- 2 `78.(1) This section applies if-- 3 (a) the public trustee is appointed administrator for a person for a 4 matter or is authorised to manage the estate of a protected person; 5 and 6 (b) the public trustee considers the person has an interest in property 7 in a reciprocating state. 8 `(1A) The public trustee may give notice to the proper officer of the 9 reciprocating state asking that, to the extent the public trustee has power to 10 manage the person's affairs, the proper officer manage the person's affairs 11 in the reciprocating state.'. 12 16. Section 80(1), `committee or'-- 13 omit. 14 17. Section 84(1), `by originating summons'-- 15 omit. 16 18. Section 84(1A)-- 17 omit. 18 19. Section 85, from `ceases pursuant to schedule 5' to `there is 19 anything'-- 20 omit, insert-- 21 `ends under section 69 or 79,113 there is anything'. 22 113 Section 69 (Variation and duration of protection order) or 79 (Public trustee may be authorised to manage in Queensland)

 


 

186 Guardianship and Administration SCHEDULE 3 (continued) 20. Section 89-- 1 omit, insert-- 2 `Power to apply to court for compensation for loss of benefit in estate 3 `89.(1) This section applies if a person's benefit in an incapacitated 4 person's estate under the incapacitated person's will, on intestacy, or by 5 another disposition taking effect on the incapacitated person's death, is lost 6 because of a sale or other dealing with the incapacitated person's property 7 by the public trustee under-- 8 (a) this part, as in force immediately before the commencement of 9 this paragraph or from time to time; or 10 (b) the repealed Public Curator Act 1915, part 3A; or 11 (c) the repealed Mental Hygiene Act 1938; or 12 (d) the repealed Mental Health Act 1962; or 13 (e) the Mental Health Act 1974, as in force immediately before the 14 commencement of this paragraph or from time to time. 15 `(2) The person, or the person's personal representative, may apply to the 16 court for compensation out of the incapacitated person's estate. 17 `(3) The court may order that the person, or the person's estate, be 18 compensated out of the incapacitated person's estate as the court considers 19 appropriate, but the compensation must not be more than the value of the 20 lost benefit. 21 `(4) The Succession Act 1981, sections 41(2) to (8), (10) and (11) and 44 22 apply to an application and an order made on it as if the application were an 23 application under part 4 of that Act114 by a person entitled to make an 24 application. 25 `(5) In this section-- 26 "incapacitated person" means an incapacitated person under section 64 as 27 in force immediately before the commencement of this subsection.'. 28 114 Succession Act 1981, part 4 (Family provision)

 


 

187 Guardianship and Administration SCHEDULE 3 (continued) 21. Section 123(1)(a)-- 1 omit, insert-- 2 `(a) other than under an order under the Guardianship and 3 Administration Act 1999 appointing an administrator or on behalf 4 of an estate under administration; and'. 5 22. Part 10, before section 143-- 6 insert-- 7 `Division 1--Transitional provision for Act No. 24 of 1994'. 8 23. Part 10-- 9 insert-- 10 `Division 2--Transitional provisions for Guardianship and 11 Administration Act 1999 12 `Definition for div 2 13 `145. In this division-- 14 "tribunal" means the Guardianship and Administration Tribunal. 15 `Public trustee becomes administrator if protection order or s 70 16 certificate of disability 17 `146.(1) This section applies if, immediately before its commencement-- 18 (a) the public trustee managed the estate of a person who is 18 years 19 or more under a protection order under part 6;115 or 20 115 Part 6 (Management of estates of incapacitated persons)

 


 

188 Guardianship and Administration SCHEDULE 3 (continued) (b) a certificate of disability under section 70116 is in force for a 1 person who is 18 years or more and the certificate has been filed 2 in the court. 3 `(2) On the commencement of this section, the public trustee is taken to 4 be appointed under the Guardianship and Administration Act 1999 by the 5 tribunal as the person's administrator for all financial matters. 6 `Public trustee becomes attorney if s 71 certificate of disability 7 `147.(1) This section applies if, immediately before its commencement, a 8 certificate of disability under section 71117 is in force for a person who is 18 9 years or more and the certificate has been filed in the court. 10 `(2) On the commencement of this section, the person is taken to have 11 made an enduring power of attorney under the Powers of Attorney Act 1998 12 appointing the public trustee as attorney for all financial matters. 13 `Completion by public trustee under previous s 85 14 `148.(1) Section 85 as in force immediately before the commencement of 15 this section continues to have effect to authorise completion of anything 16 commenced by the public trustee before commencement of this section as if 17 the following amendments had not been made by the Guardianship and 18 Administration Act 1999-- 19 (a) the amendment of sections 64, 69 and 73 of this Act; 20 (b) the repeal of the Mental Health Act 1974, schedule 5; 21 (c) the repeal of the Intellectually Disabled Citizens Act 1985. 22 `(2) Subsection (1) does not limit the operation of section 85 as in force 23 immediately after the commencement of this section.'. 24 116 Section 70 (Where public trustee may file certificate of disability after notice) 117 Section 71 (Where public trustee may file certificate of disability after request)

 


 

189 Guardianship and Administration SCHEDULE 3 (continued) SUPREME COURT ACT 1995 1 1. Section 201, `and of natural-born fools' to `or their estates'-- 2 omit. 3 2. Section 201, `and lunatics' to `aforesaid'-- 4 omit. 5 3. Part 21-- 6 insert-- 7 `Transitional provision--Guardianship and Administration Act 1999 8 `301. An appointment as committee of the person, or of the estate of a 9 person, other than a child that is in force immediately before the amendment 10 of section 201 by the Guardianship and Administration Act 1999, continues 11 in force for 1 year after the commencement of this section as if the 12 amendment had not been made.'. 13 RANSPLANTATION AND ANATOMY ACT 1979 14 ´T 1. Section 10(b), `; and'-- 15 omit, insert-- 16 `;118 and'. 17 118 For an adult with impaired capacity, see the Guardianship and Administration Act 1999, section 69 which provides that, in particular circumstances, the Guardianship and Administration Tribunal may consent to removal of tissue from the adult for donation to another person.

 


 

190 Guardianship and Administration SCHEDULE 3 (continued) 2. Section 11(b), `; and'-- 1 omit, insert-- 2 `;119 and'. 3 3. Section 17, `purposes.'-- 4 omit, insert-- 5 `purposes.120'. 6 7 119 For an adult with impaired capacity, see the Guardianship and Administration Act 1999, section 69 which provides that, in particular circumstances, the Guardianship and Administration Tribunal may consent to removal of tissue from the adult for donation to another person. 120 For an adult with impaired capacity, see the Guardianship and Administration Act 1999, section 69 which provides that, in particular circumstances, the Guardianship and Administration Tribunal may consent to removal of tissue from the adult for donation to another person.

 


 

191 Guardianship and Administration SCHEDULE 4 1 ¡ DICTIONARY 2 section 3 3 "abuse", for power, includes contravene this Act in relation to the power. 4 "active party" see section 119. 5 "administrator" means an administrator appointed under this Act. 6 "adult guardian" means the adult guardian appointed under section 199. 7 "advance health directive" means an advance health directive under the 8 Powers of Attorney Act 1998.121 9 "approved clinical research" see schedule 2, section 13. 10 "approved form" means a form approved under section 250. 11 "authorised investment" means-- 12 (a) an investment which, if the investment were of trust funds by a 13 trustee, would be an investment by the trustee exercising a power 14 of investment under the Trusts Act 1973, part 3; or 15 (b) an investment approved by the tribunal. 16 "authorised real estate transaction", for an adult, is a transaction 17 involving-- 18 (a) the sale of some or all of the adult's existing real property to 19 enable an appropriate home to be supplied for the adult or a 20 dependant of the adult that is reasonable having regard to all the 21 circumstances and, in particular, the adult's financial 22 circumstances; or 23 121 See Powers of Attorney Act 1998, section 35 (Advance health directives).

 


 

192 Guardianship and Administration SCHEDULE 4 (continued) (b) the purchase of real property as a home for the adult or a 1 dependant of the adult that is reasonable having regard to all the 2 circumstances and, in particular, the adult's financial 3 circumstances; or 4 (c) the purchase of real property to protect the value of some or all of 5 the adult's existing real property. 6 "authorised security transaction", for an adult, is a security transaction in 7 which-- 8 (a) the transaction is to meet the needs of the adult or a dependant of 9 the adult; and 10 (b) the amount involved is not more than what is reasonable having 11 regard to all the circumstances and, in particular, the adult's 12 financial circumstances. 13 "capacity", for a person for a matter, means the person is capable of-- 14 (a) understanding the nature and effect of decisions about the matter; 15 and 16 (b) freely and voluntarily making decisions about the matter; and 17 (c) communicating the decisions in some way. 18 "clinical research" see schedule 2, section 13(1). 19 "close friend", of a person, means another person who has a close personal 20 relationship with the first person and a personal interest in the first 21 person's welfare. 22 "community visitor" means a community visitor appointed under section 23 231. 24 "complaint", for chapter 10,122 see section 222. 25 "conflict transaction" see section 37(2). 26 "consumer", for chapter 10, see section 222. 27 "court" means the Supreme Court. 28 122 Chapter 10 (Community Visitors)

 


 

193 Guardianship and Administration SCHEDULE 4 (continued) "criminal history", of a person, means-- 1 (a) the person's criminal record within the meaning of the Criminal 2 Law (Rehabilitation of Offenders) Act 1986; and 3 (b) despite the Criminal Law (Rehabilitation of Offenders) Act 1986, 4 section 6, 123 any conviction of the person to which that section 5 applies; and 6 (c) charges made against the person for an offence committed in 7 Queensland or elsewhere and results of those charges; and 8 (d) a finding of guilt against the person, or the acceptance of a plea of 9 guilty by the person, by a court. 10 "dependant", of an adult, means a person who is completely or mainly 11 dependent on the adult. 12 "deputy president" means a deputy president of the tribunal. 13 "electroconvulsive therapy" see schedule 2, section 14. 14 "enduring document" means an enduring power of attorney or an advance 15 health directive. 16 "enduring power of attorney" means an enduring power of attorney 17 under the Powers of Attorney Act 1998.124 18 "ethics committee" means-- 19 (a) a Human Research Ethics Committee registered by the Australian 20 Health Ethics Committee established under the National Health 21 and Medical Research Council Act 1992 (Cwlth); or 22 (b) if there is no committee mentioned in paragraph (a)-- 23 (i) an ethics committee established by a public sector hospital 24 under the Health Services Act 1991, section 2;125 or 25 123 Criminal Law (Rehabilitation of Offenders) Act 1986, section 6 (Non-disclosure of convictions upon expiration of rehabilitation period) 124 See the Powers of Attorney Act 1998, section 32 (Enduring powers of attorney). 125 "Public sector hospital" means a hospital operated by the State--see Health Services Act 1991, section 2.

 


 

194 Guardianship and Administration SCHEDULE 4 (continued) (ii) an ethics committee established by a university and 1 concerned, wholly or partly, with medical research; or 2 (iii) an ethics committee established by the National Health and 3 Medical Research Council. 4 "financial matter" see schedule 2, section 1. 5 "general principles" see schedule 1, part 1. 6 "guardian" means a guardian appointed under this Act. 7 "health care" see schedule 2, section 5. 8 "health care primarily to treat organic malfunction or disease" see 9 schedule 2, section 11. 10 "health care principle" see schedule 1, section 12. 11 "health matter" see schedule 2, section 4. 12 "health provider" means a person who provides health care, or special 13 health care, in the practice of a profession or the ordinary course of 14 business. 15 16 Example-- 17 dentist "impaired capacity", for a person for a matter, means the person does not 18 have capacity for the matter. 19 "insolvent" includes external administration, for example, liquidation, 20 receivership or compromise entered into with creditors, under the 21 Corporations Law or a similar law of a foreign jurisdiction. 22 "interested person", for a person, means a person who has a sufficient and 23 continuing interest in the other person.126 24 "legal matter" see schedule 2, section 18. 25 "legal member" means a tribunal member who was eligible for 26 appointment under section 90(4)(a). 27 "matter" includes a type of matter. 28 126 See section 126 (Tribunal to decide who are interested persons)

 


 

195 Guardianship and Administration SCHEDULE 4 (continued) "management plan" means-- 1 (a) for an administrator--a document stating how the administrator 2 plans to manage the administration; and 3 (b) for an attorney who may exercise power for a financial matter--a 4 document stating how the attorney plans to manage exercising the 5 power. 6 "normal hours", for chapter 10,127 see section 222. 7 "notified law", for chapter 9, see section 166. 8 "object", by an adult, to health care means-- 9 (a) the adult indicates the adult does not wish to have the health care; 10 or 11 (b) the adult previously indicated, in similar circumstances, the adult 12 did not then wish to have the health care and since then the adult 13 has not indicated otherwise. 14 15 Example-- 16 An indication may be given in an enduring power of attorney or advance health 17 directive or in another way, including, for example, orally or by conduct. "paid carer", for an adult, means someone who-- 18 (a) performs services for the adult's care; and 19 (b) receives remuneration from any source for the services, other 20 than-- 21 (i) a carer payment or other benefit received from the 22 Commonwealth or a State for providing home care for the 23 adult; or 24 127 Chapter 10 (Community Visitors)

 


 

196 Guardianship and Administration SCHEDULE 4 (continued) (ii) remuneration attributable to the principle that damages may 1 be awarded by a court for voluntary services performed for 2 the adult's care.128 3 "personal experience member" means a tribunal member who was 4 eligible for appointment under section 90(4)(c). 5 "personal matter" see schedule 2, section 2. 6 "power", for a matter, means power to make all decisions about the matter 7 and otherwise exercise the power. 8 "prescribed non-contentious matter" see section 99(3). 9 "prescribed special health care" see schedule 2, section 17. 10 "president" means the president of the tribunal. 11 "presidential directions" see section 100(2). 12 "presiding member", for a proceeding, means the member presiding at the 13 proceeding under section 102. 14 "primary carer", of an adult, means a person who is primarily responsible 15 for providing support or care to the adult. 16 "private dwelling house", for chapter 10,129 see section 222. 17 "professional member" means a tribunal member who was eligible for 18 appointment under section 90(4)(b). 19 "psychosurgery" see schedule 2, section 15. 20 "public advocate" means the public advocate appointed under section 213. 21 "real estate transaction" means a transaction involving the sale or 22 purchase of real property. 23 128 This principle was established in Griffiths v Kerkemeyer (1977) 139 CLR 161--see Queensland Law Reform Commission Report No. 45, The assessment of damages in personal injury and wrongful death litigation, Griffiths v Kerkemeyer, Section 15C Common Law Practice Act 1867, October 1993. The Common Law Practice Act 1867, section 15C has been relocated to the Supreme Court Act 1995 as section 23. 129 Chapter 10 (Community Visitors)

 


 

197 Guardianship and Administration SCHEDULE 4 (continued) "registrable order", for chapter 9, see section 166. 1 "registrar" means the registrar of the tribunal. 2 "removal of tissue for donation" see schedule 2, section 8(1). 3 "repealed Act", for chapter 12, part 3, see section 258. 4 "repealed chapter", for chapter 12, part 1, see section 253. 5 "security transaction", for an adult, is a transaction involving the use of 6 the adult's property as security, for example, for a loan. 7 "special health care" see schedule 2, section 7. 8 "special health matter" see schedule 2, section 6. 9 "special life-sustaining measures" see schedule 2, section 16. 10 "special medical research or experimental health care" see schedule 2, 11 section 12. 12 "special personal matter" see schedule 2, section 3. 13 "statutory health attorney" see Powers of Attorney Act 1998, section 63. 14 "sterilisation" see schedule 2, section 9. 15 "support network", for an adult, consists of the following people-- 16 (a) members of the adult's family; 17 (b) close friends of the adult; 18 (c) other people the tribunal decides provide support to the adult. 19 "term" includes condition, limitation and instruction. 20 "termination" see schedule 2, section 10. 21 "tissue" see schedule 2, section 8(2). 22 "tribunal" means the Guardianship and Administration Tribunal. 23 "tribunal rules" see section 99. 24

 


 

198 Guardianship and Administration SCHEDULE 4 (continued) "visitable site", for chapter 10,130 see section 222. 1 "visitable site document", for chapter 10, see section 222. 2 3 © State of Queensland 1999 130 Chapter 10 (Community Visitors)

 


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