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GUARDIANSHIP OF ADULTS ACT 2016 (NO 15 OF 2016) - SECT 4 Guardianship principles

GUARDIANSHIP OF ADULTS ACT 2016 (NO 15 OF 2016) - SECT 4

Guardianship principles

    (1)     A person or the Tribunal (the decision maker ) exercising authority under this Act in relation to an adult must exercise that authority in accordance with the requirements described in this section (the guardianship principles ).

    (2)     The decision maker must exercise the decision maker's authority in the way that the decision maker reasonably believes is in the adult's best interests.

    (3)     In determining what is in the adult's best interests, the decision maker must:

    (a)     seek to obtain the adult's current views and wishes, as far as it is practicable to do so; and

    (b)     take into account all relevant considerations; and

    (c)     weigh up the relevant considerations, giving each of them the weight that the decision maker reasonably believes is appropriate in the circumstances.

    (4)     In determining what is appropriate in the circumstances, the decision maker must ensure that the decision maker's authority is exercised in a way that:

    (a)     is the least restrictive of the adult's freedom of decision and action as is practicable; and

    (b)     provides the adult with as much support as is practicable to make the adult's own decisions.

    (5)     For subsection (3)(b), the relevant considerations include, but are not limited to, the following:

    (a)     the adult's current views and wishes and previously stated views and wishes;

    (b)     any views and wishes stated by an interested person for the adult;

    (c)     maintenance of the adult's freedom of decision and action to the greatest extent practicable;

    (d)     the ability of the adult to be as independent as is practicable;

    (e)     protection of the adult from harm, neglect, abuse and exploitation;

    (f)     the provision to the adult of appropriate care, including health care;

    (g)     promotion of the adult's happiness, enjoyment of life and wellbeing;

    (h)     the ability of the adult to achieve the adult's maximum physical, social, emotional and intellectual potential;

        (i)     the ability of the adult to live in the general community and take part in community activities;

    (j)     maintenance of the adult's right to be treated with dignity and respect;

    (k)     the ability of the adult to maintain the adult's preferred living environment and lifestyle;

    (l)     maintenance or creation of a support network for the adult;

    (m)     protection of the adult's property and financial resources from loss, damage or misuse;

    (n)     protection of the adult's right to confidentiality of information about the adult.

    (6)     Subsection (2) does not prevent a decision maker from exercising authority under this Act in relation to an adult in a way that may be beneficial to another person if:

    (a)     the benefit to the other person is of a kind that the adult:

        (i)     provided when the adult had decision-making capacity for the matter; or

        (ii)     might reasonably be expected to provide; and

    (b)     the benefit being provided to the other person:

        (i)     is reasonable in the circumstances; and

        (ii)     will not significantly adversely affect the adult's best interests.

Examples for subsection (6)

1     It may be appropriate for a guardian to make provision out of the adult's money for educational expenses for the adult's children, even though that is not directly for the benefit of the adult and will mean that the money is not available to pay for the adult's own expenses .

2     It may be appropriate for the Tribunal to consent to the adult donating bone marrow to treat the adult's child who has leukaemia, even though doing so may involve some risk to the adult .

    (7)     Despite subsection (2), if the adult has made an advance care statement (as defined in section 3 of the Advance Personal Planning Act ), the decision maker must exercise the decision maker's authority under this Act so as to give effect to the statement even if doing so is not in adult's best interests, unless:

    (a)     the adult, having capacity to do so, states that the adult does not want that statement to be given effect; or

    (b)     a circumstance mentioned in section 23(2)(a) to (e) of the Advance Personal Planning Act exists.