Victorian Bills Victorian Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Guardianship and Administration (Amendment)
Act 1999
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
PART 2--AMENDMENT OF GUARDIANSHIP AND
ADMINISTRATION ACT 1986 3
3. Principal Act 3
4. Definitions 3
5. Objects 6
6. Public Advocate 6
7. Guardianship orders 8
8. Authority of plenary guardian 8
9. Power to enforce guardianship order 8
10. Special powers in respect of persons with a disability 9
11. Temporary orders--guardians 9
12. New Division 5A inserted 10
Division 5A--Appointment of Enduring Guardian 10
35A. Appointment of enduring guardian 10
35B. Authority of enduring guardian 11
35C. Revocation of appointment by appointor 12
35D. Revocation of appointment by Tribunal 13
35E. Advice or direction of Tribunal 14
13. Division 6 of Part 4 repealed 15
14. New Part 4A inserted 15
PART 4A--MEDICAL AND OTHER TREATMENT 15
Division 1--Preliminary 15
36. Persons to whom Part applies 15
37. Person responsible 15
38. Best interests 18
Division 2--Consent 18
i
532016B.I1-21/4/99
Clause Page
39. Persons who may consent to medical or other treatment 18
40. Effect of consent 19
41. Refusal of medical treatment under the Medical
Treatment Act 1988 19
42. Unlawful consent to medical or other treatment an
offence 19
Division 3--Emergency Treatment 20
42A. Emergency medical or dental treatment 20
Division 4--Special Procedures 21
42B. Application for consent of Tribunal to special procedure 21
42C. Guidelines for special procedures 21
42D. Date for hearing 22
42E. Consent of Tribunal to special procedure 22
42F. Tribunal may confer authority to consent to continuing
or further special procedure 22
42G. Special procedure without consent of Tribunal an
offence 23
Division 5--Other Medical or Dental Treatment 24
42H. Consent of person responsible 24
42I. Person responsible may seek advice 25
42J. Guidelines for medical or dental treatment 26
42K. Medical or dental treatment without consent of person
responsible 26
42L. Medical or dental treatment if person responsible does
not consent 28
42M. Statement by registered practitioner 29
42N. Application to Tribunal relating to medical or dental
treatment 30
42O. Protection of registered practitioner 32
15. Persons eligible as administrator 33
16. New section 47A inserted 34
47A. Remuneration of professional administrator 34
17. Accounts 35
18. Temporary orders--administrators 36
19. Reviews of orders 37
20. New Part 6A inserted 37
PART 6A--INTERSTATE ORDERS 37
63A. Application of Part 37
63B. Definitions 38
63C. Corresponding laws and orders 38
63D. Ministerial agreements 39
63E. Registration of interstate orders 39
ii
532016B.I1-21/4/99
Clause Page
63F. Review of interstate orders 40
63G. Reciprocal arrangements under the State Trustees
(State Owned Company) Act 1994 40
21. New section 81A inserted 40
81A. Supreme Court--Limitation of jurisdiction 40
22. Regulations 41
23. New Part 9 inserted 41
PART 9--TRANSITIONAL PROVISION 41
86. Enduring powers of attorney under the Instruments
Act 1958 41
24. Statute law revision 42
25. New Schedule inserted 42
SCHEDULE 4--Instruments relating to enduring guardian 42
Form 1--Appointment of enduring guardian 42
Form 2--Revocation of appointment of enduring guardian 46
PART 3--CONSEQUENTIAL AMENDMENTS 47
26. Mental Health Act 1986 47
NOTES 50
iii
532016B.I1-21/4/99
PARLIAMENT OF VICTORIA
A BILL
to amend the Guardianship and Administration Act 1986 and the
Mental Health Act 1986 and for other purposes.
Guardianship and Administration
(Amendment) Act 1999
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The purposes of this Act are--
(a) to amend the Guardianship and
5 Administration Act 1986 to make provision
for--
(i) enduring guardians; and
1
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 2
Act No.
(ii) consent to medical or dental treatment
on behalf of persons incapable of
giving consent to such treatment; and
(iii) registration of interstate guardianship
5 and administration orders; and
(b) to make other miscellaneous amendments to
the Guardianship and Administration Act
1986 and consequential amendments to the
Mental Health Act 1986.
10 2. Commencement
(1) Part 1 comes into operation on the day on which
this Act receives the Royal Assent.
(2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on a
15 day or days to be proclaimed.
(3) If a provision referred to in sub-section (2) does
not come into operation before 1 January 2000, it
comes into operation on that day.
_______________
20
2
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 3
Act No.
PART 2--AMENDMENT OF GUARDIANSHIP AND
ADMINISTRATION ACT 1986
3. Principal Act
No. 58/1986.
In this Part, the Guardianship and
Reprint No. 4
5 Administration Act 1986 is called the Principal as at
Act. 11 February
1999.
4. Definitions
(1) In section 3(1) of the Principal Act--
(a) insert--
10 ' "appointor" means a person who appoints
an enduring guardian under Division
5A of Part 4;
"emergency treatment" means treatment
under section 42A;
15 "enduring guardian" means a person
appointed as an enduring guardian
under Division 5A of Part 4;
"medical or dental treatment" means--
(a) medical treatment (including any
20 medical or surgical procedure,
operation or examination and any
prophylactic, palliative or
rehabilitative care) normally
carried out by, or under, the
25 supervision of a registered
practitioner; or
(b) dental treatment (including any
dental procedure, operation or
examination) normally carried out
30 by or under the supervision of a
registered practitioner; or
3
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 4
Act No.
(c) any other treatment not referred to
in paragraphs (a) and (b) that is
prescribed by the regulations to be
medical or dental treatment for the
5 purposes of this Act--
but does not include--
(d) a special procedure; or
(e) any non-intrusive examination
made for diagnostic purposes
10 (including a visual examination of
the mouth, throat, nasal cavity,
eyes or ears); or
(f) first-aid treatment; or
(g) the administration of a
15 pharmaceutical drug for the
purpose and in accordance with
the dosage level--
(i) if the drug is one for which a
prescription is required,
20 recommended by a registered
practitioner; or
(ii) if the drug is one for which a
prescription is not required and
which is normally self-
25 administered, recommended in
the manufacturer's instructions
or by a registered practitioner;
or
(h) any other kind of treatment that is
30 prescribed by the regulations not
to be medical or dental treatment
for the purposes of this Act;
"person responsible" has the meaning
given by section 37;
4
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 4
Act No.
"registered practitioner" means a
registered medical practitioner within
the meaning of the Medical Practice
Act 1994 or a dentist within the
5 meaning of the Dentists Act 1972;
"special procedure" means--
(a) any procedure that is intended, or
is reasonably likely, to have the
effect of rendering permanently
10 infertile the person on whom it is
carried out; or
(b) any procedure carried out for the
purposes of medical research; or
(c) termination of pregnancy; or
15 (d) any removal of tissue for the
purposes of transplantation to
another person; or
(e) any other medical or dental
treatment that is prescribed by the
20 regulations to be a special
procedure for the purposes of
Part 4A;
"State Trustees" has the same meaning as
in the State Trustees (State Owned
25 Company) Act 1994;';
(b) in the definition of "administrator" for "the
State Trust or any other person" substitute
"the person";
(c) for the definition of "disability" substitute--
30 ' "disability", in relation to a person, means
intellectual impairment, mental
disorder, brain injury, physical
disability or dementia;';
(d) for the definition of "guardian" substitute--
5
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 5
6
Act No.
' "guardian" means--
(a) the Public Advocate, person or
body named as a plenary guardian
or limited guardian in a
5 guardianship order; or
(b) a person who becomes a guardian
under section 35; or
(c) a person named as an enduring
guardian in an instrument
10 appointing such a guardian;';
(e) the definition of "major medical procedure"
is repealed.
(2) For section 3(3) of the Principal Act substitute--
"(3) Nothing in this Act affects any requirement
15 relating to obtaining authorisation or
approval for the carrying out of any medical
research.".
5. Objects
In section 4(1) of the Principal Act, after
20 paragraph (d) insert--
"; and
(e) to provide for the appointment of enduring
guardians; and
(f) to provide for consent to medical and dental
25 treatment on behalf of persons incapable of
giving consent to such treatment; and
(g) to provide for the registration of interstate
guardianship orders and administration
orders.".
30 6. Public Advocate
6
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
Act No.
(1) In section 15(b) of the Principal Act omit
"co-ordinate and".
(2) In section 16(1) of the Principal Act--
(a) in paragraph (a), for sub-paragraphs (ii) and
5 (iii) substitute--
"(ii) an alternative guardian (whether
plenary or limited); and";
(b) after paragraph (h) insert--
"(ha) for the purposes of an investigation
10 under paragraph (h) or the provision of
a report under clause 35 in Schedule 1
to the Victorian Civil and
Administrative Tribunal Act 1998,
request a person, government
15 department, institution, welfare
organisation or service provider to
provide information; and";
(c) after paragraph (j) insert--
"(ja) make recommendations to the Tribunal
20 with respect to guidelines proposed to
be issued by the Tribunal about consent
to a special procedure and any other
medical or dental treatment under
Part 4A.".
25 (3) In section 16(2) of the Principal Act--
(a) omit "or as the administrator of the estate of
a represented person";
(b) in paragraph (a) omit "or the administrator
of the estate of that represented person as the
30 case may be";
(c) in paragraph (b) omit "or administrator".
(4) In section 18(1)(b) of the Principal Act omit "or
administrator".
7
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 7
9
Act No.
7. Guardianship orders
In section 22 of the Principal Act, for sub-section
(2) substitute--
"(2) In determining whether or not a person is in
5 need of a guardian, the Tribunal must
consider--
(a) whether the needs of the person in
respect of whom the application is
made could be met by other means less
10 restrictive of the person's freedom of
decision and action; and
(b) the wishes of any nearest relatives or
other family members of the proposed
represented person; and
15 (c) the desirability of preserving existing
family relationships.".
8. Authority of plenary guardian
In section 24(2) of the Principal Act--
(a) in paragraph (d), for "Division 6" substitute
20 "Part 4A";
(b) after paragraph (d) insert--
"; and
(e) to restrict visits to a represented person
to such extent as may be necessary in
25 his or her best interests and to prohibit
visits by any person if the guardian
reasonably believes that they would
have an adverse effect on the
represented person.".
30 9. Power to enforce guardianship order
After section 26(1) of the Principal Act insert--
8
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
Act No.
"(1A) If the Tribunal makes an order under sub-
section (1) empowering a guardian or a
specified person to take such measures or
actions as are specified in the order, the
5 Tribunal must hold a hearing to review that
order as soon as practicable after the making
of that order but within 42 days of making
that order.".
10. Special powers in respect of persons with a disability
10 In section 27(2) of the Principal Act, for "and
cared for at a place specified in the order"
substitute "a place specified in the order for
assessment and placement".
11. Temporary orders--guardians
15 (1) In section 32(1) of the Principal Act, for "the
Public Advocate as the guardian" substitute
"a guardian".
(2) In section 33(1) of the Principal Act, for "the
Public Advocate" substitute "any person eligible
20 to be appointed under section 23".
(3) For section 33(2) of the Principal Act
substitute--
"(2) A temporary order--
(a) remains in effect for such period not
25 exceeding 21 days as is specified in the
order; and
(b) may be renewed once for a further
period not exceeding 21 days.".
(4) In section 33(3) of the Principal Act, for "before
30 the expiry of the temporary order" substitute "as
soon as practicable after the making of a
9
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 12
Act No.
temporary order but within 42 days of making that
order".
12. New Division 5A inserted
After section 35 of the Principal Act insert--
5 "Division 5A--Appointment of Enduring
Guardian
35A. Appointment of enduring guardian
(1) A person who is of or over the age of
18 years may, by instrument in writing,
10 appoint a person to be his or her enduring
guardian.
(2) An instrument to appoint an enduring
guardian is effective if--
(a) it is in the form of, or to the effect of,
15 Form 1 in Schedule 4; and
(b) it is endorsed with an acceptance in the
form set out in Form 1 in Schedule 4
signed by the person appointed as the
enduring guardian; and
20 (c) the execution of the instrument is
attested by two witnesses--
(i) neither of whom is a party to the
instrument nor a relative to a party
to it; and
25 (ii) neither of whom is the person
appointed as the enduring
guardian; and
(iii) both of whom have witnessed the
instrument in the presence of the
30 appointor and each other; and
10
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 12
Act No.
(iv) one of whom is authorised by law
to witness the signing of a
statutory declaration.
(3) A person is not eligible to be appointed as an
5 enduring guardian unless he or she is of or
over the age of 18 years.
(4) A person is not eligible to be appointed as an
enduring guardian by another person if he or
she is, in a professional or administrative
10 capacity, directly or indirectly responsible
for, or involved in, the care or treatment of
or provides accommodation to that other
person.
(5) If a person who is validly appointed as an
15 enduring guardian becomes ineligible to
continue to be appointed as an enduring
guardian by reason of any of the matters
referred to in sub-section (4), the
appointment of that person as enduring
20 guardian lapses.
35B. Authority of enduring guardian
(1) An instrument appointing an enduring
guardian authorises the person appointed to
exercise the powers of a guardian in relation
25 to the matters specified in that instrument
relating to his or her personal circumstances
if, and only to the extent that, the appointor
subsequently becomes unable by reason of a
disability to make reasonable judgments in
30 respect of any of those matters.
(2) If an instrument appointing an enduring
guardian does not specify the matters in
relation to which the person appointed may
exercise the powers of a guardian, the
35 instrument authorises that person to exercise
the powers of a guardian under section 24 if,
11
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 12
Act No.
and only to the extent that, the appointor
subsequently becomes unable by reason of a
disability to make reasonable judgments in
respect of any of the matters relating to his
5 or her personal circumstances.
(3) An instrument appointing an enduring
guardian confers on the guardian in respect
of the appointor all the powers and duties
which the guardian would have if he or she
10 were a parent and the appointor his or her
child to the extent that the instrument
authorises the guardian to exercise such
powers and duties.
(4) An enduring guardian cannot, on behalf of
15 the appointor, consent to any special
procedure.
(5) An enduring guardian must exercise his or
her authority in accordance with section 28.
35C. Revocation of appointment by appointor
20 (1) If a person appoints an enduring guardian,
any earlier appointment of an enduring
guardian by that person is revoked.
(2) The appointor of an enduring guardian may,
by instrument in writing, revoke the
25 appointment.
(3) An instrument to revoke an appointment as
enduring guardian is effective if--
(a) it is in the form of, or to the effect of,
Form 2 in Schedule 4; and
30 (b) the execution of the instrument is
attested by two witnesses--
(i) neither of whom is a party to the
instrument nor a relative to a party
to it; and
12
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 12
Act No.
(ii) neither of whom is the person
appointed as the enduring
guardian; and
(iii) both of whom have witnessed the
5 instrument in the presence of the
appointor and each other; and
(iv) one of whom is authorised by law
to witness the signing of a
statutory declaration.
10 35D. Revocation of appointment by Tribunal
(1) The Tribunal may, on an application under
this section and after a hearing, revoke the
appointment of an enduring guardian if--
(a) the enduring guardian seeks revocation
15 of the appointment; or
(b) the Tribunal is satisfied that the
enduring guardian--
(i) is not able or willing to act in that
capacity; or
20 (ii) has, in that capacity, not acted in
the best interests of the appointor
or has acted in an incompetent or
negligent manner.
(2) An application may be made by--
25 (a) the Public Advocate; or
(b) the enduring guardian; or
(c) the administrator of the appointor's
estate; or
(d) any other person who the Tribunal is
30 satisfied has an interest in the person or
in the estate of the person in respect of
whom the application is made.
13
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 12
Act No.
(3) An appointment of an enduring guardian is
not revoked if the appointor becomes a
represented person.
35E. Advice or direction of Tribunal
5 (1) An enduring guardian may apply to the
Tribunal for an advisory opinion or
directions on any matter or question relating
to the scope of his or her appointment as
such or the exercise of any power by the
10 guardian under the instrument of
appointment.
(2) The Tribunal may--
(a) give an advisory opinion or any
directions it considers necessary;
15 (b) vary the effect of the instrument
appointing the enduring guardian;
(c) suspend for a specified period the
authority, either generally or in respect
of a specific matter, of an enduring
20 guardian under an instrument of
appointment;
(d) make any order it considers necessary.
(3) The Tribunal of its own motion may direct,
or give an advisory opinion to, an enduring
25 guardian in respect of any matter.
(4) An action does not lie against an enduring
guardian on account of an act or thing done
or omitted to be done by the guardian in
accordance with any order, directions or
30 advisory opinion of the Tribunal made or
given under this section unless in
representing the facts to the Tribunal the
guardian has been guilty of fraud, wilful
concealment or misrepresentation.".
14
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 13
14
Act No.
13. Division 6 of Part 4 repealed
Division 6 of Part 4 of the Principal Act is
repealed.
14. New Part 4A inserted
5 After Part 4 of the Principal Act insert--
'PART 4A--MEDICAL AND OTHER
TREATMENT
Division 1--Preliminary
36. Persons to whom Part applies
10 (1) In this Part, "patient" means a person with a
disability which is a permanent or long term
disability and who--
(a) is of or over the age of 18 years; and
(b) is incapable of giving consent, within
15 the meaning of sub-section (2), to the
carrying out of a special procedure or
medical or dental treatment, whether or
not the person is a represented person.
(2) For the purposes of paragraph (b) of the
20 definition of "patient" in sub-section (1), a
person is incapable of giving consent to the
carrying out of a special procedure or
medical or dental treatment if the person--
(a) is incapable of understanding the
25 general nature and effect of the
proposed procedure or treatment; or
(b) is incapable of indicating whether or
not he or she consents or does not
consent to the carrying out of the
30 proposed procedure or treatment.
37. Person responsible
15
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
Act No.
(1) In this Part, "person responsible", in
relation to a patient and in relation to
proposed medical or dental treatment, means
the first person listed below who is
5 responsible for the patient and who, in the
circumstances, is reasonably available and
willing and able to make a decision under
this Part--
(a) a person appointed by the patient under
10 section 5A of the Medical Treatment
Act 1988;
(b) a person appointed by the Tribunal to
make decisions in relation to the
proposed treatment;
15 (c) a person appointed under a
guardianship order with power to make
decisions in relation to the proposed
treatment;
(d) a person appointed by the patient
20 (before the patient became incapable of
giving consent) as an enduring guardian
with power to make decisions in
relation to the proposed treatment;
(e) a person appointed in writing by the
25 patient (being the person appointed last
in time before the patient became
incapable of giving consent) to make
decisions in relation to medical or
dental treatment which includes the
30 proposed treatment;
(f) the patient's spouse;
(g) the patient's primary carer;
(h) the patient's nearest relative within the
meaning of paragraphs (a) to (g) of the
16
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 14
Act No.
definition of "nearest relative" in
section 3.
(2) The circumstances in which a person is to be
regarded as having the care of a patient
5 include, but are not limited to, the case
where the person, otherwise than for
remuneration (whether from the patient or
any other source), regularly--
(a) provides domestic services and support
10 to the patient; or
(b) arranges for the patient to be provided
with domestic services and support.
(3) A patient who is cared for in an institution
(such as a hospital, community residential
15 unit, residential care service, supported
residential service or State funded residential
care service within the meaning of the
Health Services Act 1988) at which he or
she is cared for by some other person is not,
20 by reason only of that fact, to be regarded as
being in the care of that other person and
remains in the care of the person in whose
care he or she was immediately before being
cared for in that institution.
25 (4) For the purposes of this section, a reference
to the spouse of a patient--
(a) is a reference to a spouse who is not
under guardianship and with whom the
patient has a close and continuing
30 relationship; and
(b) includes a reference to a person
referred to in section 3(2)(b).
(5) If the person responsible for a patient is an
agent appointed under section 5A of the
35 Medical Treatment Act 1988, the powers
17
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 14
Act No.
the person may exercise as an agent under
that Act are in addition to the powers the
person may exercise under this Act.
38. Best interests
5 In this Part, for the purposes of determining
whether any special procedure or any
medical or dental treatment would be in the
best interests of the patient, the following
matters must be taken into account--
10 (a) the wishes of the patient, so far as they
can be ascertained; and
(b) the wishes of any nearest relative or
any other family members of the
patient; and
15 (c) the consequences to the patient if the
treatment is not carried out; and
(d) any alternative treatment available; and
(e) the nature and degree of any significant
risks associated with the treatment or
20 any alternative treatment; and
(f) whether the treatment to be carried out
is only to promote and maintain the
health and well-being of the patient;
and
25 (g) any other matters prescribed by the
regulations.
Division 2--Consent
39. Persons who may consent to medical or
other treatment
18
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 14
Act No.
Consent to the carrying out of a special
procedure or medical or dental treatment on
a patient may be given--
(a) in the case of a special procedure or
5 any medical or dental treatment, by the
Tribunal; or
(b) in the case of any medical or dental
treatment, by the person responsible for
the patient.
10 40. Effect of consent
A consent given under this Part in respect of
the carrying out of a special procedure or any
medical or dental treatment on a patient has
effect as if--
15 (a) the patient had been capable of giving
consent to the carrying out of the
procedure or treatment; and
(b) the procedure or treatment had been
carried out with the consent of the
20 patient.
41. Refusal of medical treatment under the
Medical Treatment Act 1988
A registered practitioner must not carry out
any medical or dental treatment (including
25 any emergency treatment) under this Part
that is medical treatment within the meaning
of the Medical Treatment Act 1988 if a
refusal of that treatment is in force in
accordance with that Act.
30 42. Unlawful consent to medical or other
treatment an offence
A person must not--
(a) purport to give consent to the
continuation of a special procedure or a
19
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 14
Act No.
further special procedure under
section 42F or to any medical or dental
treatment on behalf of a patient; or
(b) represent to a registered practitioner
5 that he or she is authorised to give such
consent--
knowing that he or she is not authorised to
give such consent or without reasonable
grounds for believing that he or she is
10 authorised to give such consent.
Penalty: 20 penalty units.
Division 3--Emergency Treatment
42A. Emergency medical or dental treatment
(1) A registered practitioner may carry out, or
15 supervise the carrying out of, a special
procedure or medical or dental treatment on
a patient without consent under this Part if
the practitioner believes on reasonable
grounds that the treatment is necessary, as a
20 matter of urgency--
(a) to save the patient's life; or
(b) to prevent serious damage to the
patient's health; or
(c) in the case of medical or dental
25 treatment, to prevent the patient from
suffering or continuing to suffer
significant pain or distress.
(2) A registered practitioner who, in good faith,
carries out, or supervises the carrying out, of
30 a special procedure or medical or dental
treatment in the belief on reasonable grounds
that the requirements of this Division have
been complied with is not--
20
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 14
Act No.
(a) guilty of assault or battery; or
(b) guilty of professional misconduct; or
(c) liable in any civil proceedings for
assault or battery.
5 (3) Nothing in this Division affects any duty of
care owed by a registered practitioner to a
patient.
Division 4--Special Procedures
42B. Application for consent of Tribunal to
10 special procedure
(1) An application for the consent of the
Tribunal to the carrying out of any special
procedure on a patient may be made by--
(a) the person responsible for the patient;
15 or
(b) any person who, in the opinion of the
Tribunal, has a special interest in the
affairs of the patient.
(2) If an application for consent is made under
20 this Division, the patient is a party to the
proceedings.
(3) The Tribunal must give notice of an
application, of the hearing of the application
and of any order, directions or advisory
25 opinion of the Tribunal in respect of the
application to--
(a) the Public Advocate; and
(b) any other person whom the Tribunal
considers has a special interest in the
30 affairs of the patient.
42C. Guidelines for special procedures
The Tribunal may--
21
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 14
Act No.
(a) in consultation with the Public
Advocate and the Secretary to the
Department of Justice; and
(b) with the approval of the Governor in
5 Council--
issue and make available to members of the
public guidelines specifying situations in
which applications may be made to the
Tribunal under this Division.
10 42D. Date for hearing
The Tribunal must commence to hear an
application under this Division within 14
days after the day on which the application is
received by the Tribunal.
15 42E. Consent of Tribunal to special procedure
On hearing an application under this
Division, the Tribunal may consent to the
carrying out of a special procedure if it is
satisfied that--
20 (a) the patient is incapable of giving
consent; and
(b) the special procedure would be in the
best interests of the patient.
42F. Tribunal may confer authority to consent to
25 continuing or further special procedure
(1) If the Tribunal consents to the carrying out
of a special procedure on a patient, the
Tribunal may confer on the person
responsible for the patient authority to
30 consent to--
(a) the continuation of the special
procedure; or
22
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 14
Act No.
(b) the carrying out of any further special
procedure of a similar nature.
(2) The Tribunal may confer an authority under
this section only at the request, or with the
5 consent, of the person responsible.
(3) If a person on whom the Tribunal has
conferred authority under this section ceases
to be the person responsible, the Tribunal, on
the application of the new person
10 responsible, may confer authority under this
section on that person.
(4) The Tribunal may at any time--
(a) impose conditions or give directions as
to the exercise of an authority under
15 this section; or
(b) revoke that authority.
(5) If the Tribunal confers an authority under
this section, a person may request the
consent of the person responsible to the
20 carrying out of the special procedure.
42G. Special procedure without consent of
Tribunal an offence
(1) Subject to section 42A, a registered
practitioner must not carry out, or supervise
25 the carrying out of, any special procedure on
a patient unless--
(a) the Tribunal has consented to the
carrying out of that procedure; or
(b) the person responsible with authority to
30 consent to the continuation of the
procedure or a further special procedure
23
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 14
Act No.
under section 42F has consented to the
carrying out of that procedure.
(2) A registered practitioner who, in good faith,
carries out, or supervises the carrying out of,
5 a special procedure on a patient in the belief
on reasonable grounds that the requirements
of this Division have been complied with
and in reliance on--
(a) a consent given by another person
10 whom the registered practitioner
believed on reasonable grounds was
authorised to give such consent; or
(b) a purported consent given by another
person whom the registered practitioner
15 believed on reasonable grounds was
authorised to give such consent but was
not so authorised--
is not--
(c) guilty of assault or battery; or
20 (d) guilty of professional misconduct; or
(e) liable in any civil proceedings for
assault or battery.
(3) Nothing in this Division affects any duty of
care owed by a registered practitioner to a
25 patient.
Division 5--Other Medical or Dental
Treatment
42H. Consent of person responsible
24
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
Act No.
(1) The person responsible for a patient may
consent to the carrying out of any medical or
dental treatment.
(2) In determining whether or not to consent to
5 medical or dental treatment, the person
responsible must act in the best interests of
the patient.
42I. Person responsible may seek advice
(1) The person responsible for a patient may
10 apply to the Tribunal for directions or an
advisory opinion on any matter or question
relating to the scope or exercise of his or her
authority to consent to medical or dental
treatment on behalf of the patient.
15 (2) The Tribunal must give notice to any person
whom the Tribunal considers has a special
interest in the affairs of the patient of the
application, of the hearing of the application
and of any order, directions or advisory
20 opinion of the Tribunal in respect of the
application.
(3) The Tribunal may--
(a) give any directions or advisory opinion
it considers necessary;
25 (b) make any order it considers necessary.
(4) The Tribunal of its own motion may direct,
or give an advisory opinion to, the person
responsible for a patient in respect of any
matter.
30 (5) An action does not lie against the person
responsible for a patient on account of an act
or thing done or omitted to be done by that
person in accordance with any order,
directions or advisory opinion of the
35 Tribunal made or given under this section
25
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 14
Act No.
unless in representing the facts to the
Tribunal that person has been guilty of fraud,
wilful concealment or misrepresentation.
42J. Guidelines for medical or dental treatment
5 The Tribunal may--
(a) in consultation with the Public
Advocate and the Secretary to the
Department of Justice; and
(b) with the approval of the Governor in
10 Council--
issue and make available to members of the
public guidelines specifying situations in
which the person responsible for a patient
may consent to medical or dental treatment
15 in respect of the patient.
42K. Medical or dental treatment without
consent of person responsible
(1) Subject to section 41, a registered
practitioner may carry out, or supervise the
20 carrying out of, medical or dental treatment
under this section without the consent of the
person responsible if--
(a) the practitioner has made reasonable
efforts--
25 (i) to ascertain whether there is a
person responsible and, if so, who
that person is; and
(ii) if the practitioner ascertains who
the person responsible is, to
30 contact that person to obtain his or
her consent to the proposed
treatment--
but the practitioner has been unable to
ascertain whether there is a person
26
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 14
Act No.
responsible or who that person is or to
contact that person; and
(b) the practitioner believes on reasonable
grounds that the proposed treatment is
5 in the best interests of the patient; and
(c) the practitioner, before carrying out, or
supervising the carrying out of, the
medical or dental treatment, gives
notice to the Public Advocate in
10 accordance with sub-section (2).
(2) A notice referred to under sub-section (1)(c)
must include the following information--
(a) the nature of the patient's condition;
(b) the medical or dental treatment the
15 registered practitioner proposes
carrying out on the patient; and
(c) that the practitioner believes on
reasonable grounds that the proposed
treatment is in the best interests of the
20 patient; and
(d) that despite reasonable efforts by the
practitioner, the practitioner has been
unable to ascertain whether there is a
person responsible for the patient or, if
25 there is a person responsible, the
practitioner has been unable to
ascertain who that person is or to
contact that person.
(3) A registered practitioner who carries out, or
30 supervises the carrying out of, medical or
dental treatment on a patient under this
section must state in writing in the clinical
records relating to that patient--
(a) why the treatment is considered to be in
35 the best interests of the patient; and
27
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 14
Act No.
(b) how the treatment is considered to
promote or maintain the health and
well-being of the patient.
42L. Medical or dental treatment if person
5 responsible does not consent
(1) Subject to section 41, a registered
practitioner may carry out, or supervise the
carrying out of, medical or dental treatment
under this section if--
10 (a) the registered practitioner has consulted
the person responsible for a patient; and
(b) the person responsible does not consent
to the proposed medical or dental
treatment; and
15 (c) the practitioner nevertheless believes
on reasonable grounds that the
proposed treatment is in the best
interests of the patient; and
(d) the practitioner, within 3 days after the
20 person responsible has communicated
to the practitioner that he or she does
not consent, gives to that person and
the Public Advocate a statement under
section 42M.
25 (2) A registered practitioner must not carry out,
or supervise the carrying out of, any medical
or dental treatment under this section (other
than emergency treatment)--
(a) if the person responsible does not apply
30 to the Tribunal within 7 days after
receiving a statement under section
42M, earlier than 7 days after giving
the person responsible the statement; or
(b) if the person responsible applies to the
35 Tribunal within 7 days after receiving a
28
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 14
Act No.
statement under section 42M, earlier
than 14 days after giving the person
responsible the statement; or
(c) if the Tribunal makes an order under
5 section 42N that the treatment is not in
the best interests of the patient; or
(d) if the person responsible appeals from
an order of the Tribunal made under
section 42N, before the determination
10 of the appeal.
(3) If the person responsible does not apply to
the Tribunal in accordance with sub-section
(2)(a) and a registered practitioner carries
out, or supervises the carrying out of,
15 medical or dental treatment on a patient
under this section, the practitioner must state
in writing in the clinical records relating to
that patient--
(a) why the treatment is considered to be in
20 the best interests of the patient; and
(b) how the treatment is considered to
promote or maintain the health and
well-being of the patient.
42M. Statement by registered practitioner
25 (1) A statement referred to in section 42L must
be in writing and must be dated and signed
by the registered practitioner.
(2) A statement must state that--
(a) the person responsible for the patient
30 has been informed about the nature of
the patient's condition to an extent that
would be sufficient to enable the
29
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 14
Act No.
patient, if he or she were able to
consent, to decide whether or not to
consent to the proposed treatment
generally or to treatment of a particular
5 kind for that condition; and
(b) the person responsible has not
consented to the proposed treatment;
and
(c) the registered practitioner believes on
10 reasonable grounds that the proposed
treatment is in the best interests of the
patient; and
(d) unless the person responsible applies to
the Tribunal and the Tribunal otherwise
15 orders, the practitioner will, not earlier
than 7 days after giving the statement to
the person responsible, carry out the
proposed treatment.
(3) A statement must set out the procedures
20 under the Victorian Civil and
Administrative Tribunal Act 1998 for
making an application to the Tribunal.
42N. Application to Tribunal relating to medical
or dental treatment
25 (1) An application may be made to the Tribunal
in relation to any matter, question or dispute
under this Part relating to medical or dental
treatment or relating to the best interests of a
patient.
30 (2) An application may be made by--
(a) a person responsible; or
30
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
Act No.
(b) a person who, in the opinion of the
Tribunal, has a special interest in the
affairs of the patient, including a
registered practitioner (if any).
5 (3) If an application is made under this section,
the patient is a party to the proceeding.
(4) The Tribunal must give notice of an
application, of the hearing of the application
and of any order of the Tribunal in respect of
10 the application to--
(a) the Public Advocate; and
(b) if the application is made after a
statement has been given under
section 42M, the registered practitioner
15 who gave the statement; and
(c) any other person whom the Tribunal
considers has a special interest in the
affairs of the patient.
(5) If the person responsible for a patient, after
20 receiving a statement under section 42M,
makes an application to the Tribunal--
(a) the person responsible must apply to
the Tribunal within 7 days after
receiving the statement; and
25 (b) the Tribunal must hear and determine
the application within 7 days after
receiving it.
(6) On an application under this section, the
Tribunal--
30 (a) may make an order that for matters
relating to medical or dental treatment,
either generally or of a particular kind,
a person specified in the order is to be
the person responsible;
31
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 14
Act No.
(b) may appoint a person as guardian of the
patient generally or for matters relating
to the medical or dental treatment of a
patient;
5 (c) may vary a guardianship order to make
provision for matters relating to the
medical or dental treatment of a patient;
(d) may revoke, suspend or vary an
instrument appointing a person as the
10 enduring guardian to the extent that the
instrument relates to medical or dental
treatment of a patient;
(e) may make an order that any proposed
medical or dental treatment is or is not
15 in the best interests of the patient;
(f) may make any orders or give any
directions it considers necessary to
resolve any conflict between persons
relating to the best interests of a patient;
20 (g) may make a declaration as to the
validity or effect of any decision
relating to medical or dental treatment;
(h) may give an advisory opinion in
relation to the best interests of a patient;
25 (i) may make any other orders it considers
to be in the best interests of the patient.
42O. Protection of registered practitioner
(1) A registered practitioner who, in good faith,
carries out, or supervises the carrying out of,
30 medical or dental treatment on a patient in
accordance with this Division in reliance
on--
32
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 15
Act No.
(a) a consent given by another person
whom the registered practitioner
believed on reasonable grounds was
authorised to give such consent; or
5 (b) a purported consent given by another
person whom the registered practitioner
believed on reasonable grounds was
authorised to give such consent but was
not so authorised--
10 is not--
(c) guilty of assault or battery; or
(d) guilty of professional misconduct; or
(e) liable in any civil proceedings for
assault or battery.
15 (2) A registered practitioner who, in good faith,
carries out, or supervises the carrying out of,
medical or dental treatment on a patient in
accordance with this Division without the
consent of another person and in the belief
20 on reasonable grounds that the requirements
of this Division have been complied with is
not--
(a) guilty of assault or battery; or
(b) guilty of professional misconduct; or
25 (c) liable in any civil proceedings for
assault or battery.
(3) Nothing in this section affects any duty of
care owed by a registered practitioner to a
patient.'.
30 15. Persons eligible as administrator
(1) In section 47(1) of the Principal Act--
(a) paragraphs (a) and (b) are repealed;
33
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 16
Act No.
(b) in paragraph (c), omit "other".
(2) In section 47(2) of the Principal Act, after
paragraph (b) insert--
"; and
5 (c) whether the person was a member of the
Tribunal as constituted for a proceeding
under this Act.".
(3) After section 47(2) of the Principal Act insert--
"(2A) The Tribunal may appoint a person who was
10 at any time a member of the Tribunal as
constituted for a proceeding under this Act
only if the Tribunal considers that in the
circumstances it is appropriate for the person
to act as an administrator.".
15 (4) In section 47(4) of the Principal Act--
(a) for "the State Trust" (wherever occurring)
substitute "State Trustees";
(b) in paragraph (b), for "that" (where secondly
occurring) substitute "than".
20 (5) Section 47(5) of the Principal Act is repealed.
16. New section 47A inserted
After section 47 of the Principal Act insert--
"47A. Remuneration of professional
administrator
25 (1) An administrator other than an administrator
who carries on a business of, or including,
the administration of estates is not entitled to
receive any fee, remuneration or other
reward from the estate of a represented
30 person for acting as administrator unless the
34
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
Act No.
Tribunal otherwise specifies in the
administration order.
(2) The remuneration to which an administrator
who carries on a business of, or including,
5 the administration of estates is entitled is to
be approved by the Tribunal.".
17. Accounts
(1) For section 58(1) and (2) of the Principal Act
substitute--
10 "(1) The Tribunal may, at the time that it appoints
an administrator under section 46 or such
later time as the Tribunal determines,
appoint a person to examine or audit the
accounts of the estate of a represented person
15 for a fee approved by the Tribunal and paid
from that estate.
(2) Unless the Tribunal otherwise directs, an
administrator must lodge--
(a) if the Tribunal has appointed a person
20 under sub-section (1) to examine or
audit accounts, with that person; or
(b) in any other case, with the Tribunal--
on, or as soon as practicable after, the
anniversary of the appointment of the
25 administrator in each year, accounts of the
administration of the estate of a represented
person providing a full and true account of
the assets and liabilities of that estate and all
receipts and disbursements in respect of that
30 estate.
35
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 17
18
Act No.
(2A) The Tribunal may require an administrator to
lodge accounts at a time other than a time
specified in sub-section (2).
(2B) A person appointed under sub-section (1) to
5 examine or audit accounts must lodge with
the Tribunal a report in relation to the
accounts examined or audited.
(2C) A report under sub-section (2B) may
recommend the disallowance of any item in
10 the accounts.".
(2) In section 58(3) of the Principal Act, for "(2)"
substitute "(2C)".
(3) In section 58(4) of the Principal Act, omit "and
for the costs incurred by the State Trust in
15 connection with the State Trust's report to the
Tribunal".
(4) For section 58(5) of the Principal Act
substitute--
"(5) An administrator must, in respect of each
20 estate administered by the administrator, pay
to a person appointed under sub-section (1)
to examine or audit accounts an amount
certified by that person as being the
reasonable cost of examining or auditing the
25 accounts.".
(5) In section 58(6) of the Principal Act, for "the State
Trust" substitute "the person appointed under
sub-section (1) to examine or audit accounts".
18. Temporary orders--administrators
30 (1) In section 59(1) of the Principal Act, for "the State
Trust as the administrator" substitute "an
administrator".
(2) In section 60(1) of the Principal Act--
36
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 20
Act No.
(a) in paragraph (b), for "the State Trust"
substitute "State Trustees";
(b) for "appointing the State Trust" substitute
"appointing any person who may be
5 appointed under section 47(1)".
(3) For section 60(2) of the Principal Act
substitute--
"(2) A temporary order--
(a) remains in effect for such period not
10 exceeding 21 days as is specified in the
order; and
(b) may be renewed once for a further
period not exceeding 21 days.".
(4) In section 60(3) of the Principal Act, for "before
15 the expiry of the temporary order" substitute "as
soon as practicable after the making of a
temporary order but within 42 days of making that
order".
19. Reviews of orders
20 In section 61(2) of the Principal Act, for "a
guardianship order or an administration order"
substitute "any order made by it under this Act".
20. New Part 6A inserted
After section 63 of the Principal Act insert--
25 'PART 6A--INTERSTATE ORDERS
63A. Application of Part
This Part applies to a guardianship order or
an administration order made under a
37
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
Act No.
corresponding law of a participating State in
respect of a person who--
(a) resides in the participating State and
proposes entering Victoria; or
5 (b) has property situated in Victoria.
63B. Definitions
In this Part--
"corresponding law" means a law that,
under an Order in force under
10 section 63C, is declared to be a
corresponding law for the purposes of
this Part;
"determining body", in relation to a
participating State, means a court,
15 tribunal, board or other body that is
authorised under a corresponding law
to make, revoke, amend or vary a
guardianship order or an administration
order;
20 "interstate order" means an order made
under a corresponding law of a
participating State;
"participating State" means a State in
which a corresponding law is in force;
25 "State" includes Territory.
63C. Corresponding laws and orders
(1) The Governor in Council on the
recommendation of the Minister, by Order
published in the Government Gazette, may
30 declare that a law of another State is a
corresponding law for the purposes of this
Part.
38
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 20
Act No.
(2) An Order under sub-section (1) in respect of
a law of another State may include a
declaration that an order under that law is
substantially similar to a guardianship order
5 or an administration order for the purposes
of this Part.
63D. Ministerial agreements
The Minister may make an agreement with a
Minister responsible for administering a
10 corresponding law about any matter in
connection with the administration of this
Part or a corresponding law.
63E. Registration of interstate orders
(1) The Tribunal, on the application of a
15 guardian or administrator of a represented
person in a participating State, may register
an interstate order.
(2) If the guardian in a participating State is a
person who holds an equivalent position to
20 the Public Advocate, the Tribunal may
appoint the Public Advocate as the guardian
of the represented person in this State if no
other person fulfils the requirements of
section 23 for appointment as the guardian of
25 that person.
(3) On registration of an interstate order, the
Tribunal must notify the determining body
which made the order that the order has been
registered.
30 (4) An interstate order registered under this Part
has the same force and effect according to its
terms as a guardianship order or an
administration order made under this Act.
(5) A guardianship order or an administration
35 order made under this Act is not revoked in
39
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 20
21
Act No.
Victoria if that order is registered in a
participating State.
63F. Review of interstate orders
(1) A registered interstate order may be
5 reviewed by the Tribunal in accordance with
Part 6.
(2) The Tribunal may make any order that it is
authorised to make under Part 6 in relation to
an interstate order that has been registered
10 under this Part, including an order
appointing a new guardian or administrator.
(3) The Tribunal must notify the determining
body which made the interstate order as soon
as practicable after the Tribunal makes an
15 order under sub-section (2).
(4) An order made by the Tribunal under sub-
section (2) has no effect in the participating
State in which the interstate order was made.
(5) The revocation, amendment or variation of
20 an interstate order by a determining body
after the order is registered under this Part
has no effect in Victoria.
63G. Reciprocal arrangements under the State
Trustees (State Owned Company) Act 1994
25 Nothing in this Part affects the operation of
section 12 of the State Trustees (State
Owned Company) Act 1994.'.
21. New section 81A inserted
After section 81 of the Principal Act insert--
30 "81A. Supreme Court--Limitation of jurisdiction
It is the intention of sections 35E(4) and
42I(5) to alter or vary section 85 of the
Constitution Act 1975.".
40
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
Act No.
22. Regulations
In section 82(1) of the Principal Act, after
paragraph (c) insert--
"(ca) prescribing any treatment--
5 (i) to be medical or dental treatment for
the purposes of this Act; or
(ii) not to be medical or dental treatment
for the purposes of this Act; or
(iii) to be a special procedure for the
10 purposes of Part 4A; and
(cb) prescribing any matters to be taken into
account in determining whether a special
procedure or medical or dental treatment
would be in the best interests of a person to
15 whom Part 4A applies; and".
23. New Part 9 inserted
After Part 8 of the Principal Act insert--
"PART 9--TRANSITIONAL PROVISION
86. Enduring powers of attorney under the
20 Instruments Act 1958
(1) An enduring power of attorney under the
Instruments Act 1958 executed before the
commencement of section 12 of the
Guardianship and Administration
25 (Amendment) Act 1999 has effect on and
after that commencement as if this Act had
not been amended by that section.
(2) If, after the commencement of section 12 of
the Guardianship and Administration
30 (Amendment) Act 1999, there is a conflict
between a decision made by a person
appointed under an enduring power of
41
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 24
Act No.
attorney under the Instruments Act 1958
(whether executed before or after that
commencement) and a decision made by a
person appointed as an enduring guardian,
5 the decision of the latter prevails.".
24. Statute law revision
In the Principal Act--
(a) in sections 46(1)(b), 51, 55(2) and 66, for
"the State Trust" (wherever occurring)
10 substitute "State Trustees";
(b) section 58A(4) is repealed.
25. New Schedule inserted
After Schedule 3 to the Principal Act insert--
"SCHEDULE 4
15 INSTRUMENTS RELATING TO ENDURING GUARDIAN
FORM 1
APPOINTMENT OF ENDURING GUARDIAN
1. I (insert name, address and occupation of appointor), appoint (insert
name, address and occupation of proposed guardian) to be my guardian.
20 2. I authorise my guardian if, and only to the extent that, I subsequently
become unable by reason of a permanent or long term disability to make
reasonable judgments in respect of any matters relating to my personal
circumstances, to exercise the powers of a guardian under section 24 of
the Guardianship and Administration Act 1986, being all the powers
25 that a parent may exercise in respect of his or her child, including--
· to decide where I am to live, whether permanently or temporarily;
· to decide with whom I am to live;
· to decide whether I should or should not be permitted to work and,
if so--
· the nature or type of work; and
30
42
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 25
Act No.
· for whom I am to work; and
· matters related thereto; and
· to consent to any health care that is in my best interests;
· to restrict visitors to such extent as may be necessary in my best
5 interests and to prohibit visits by any person if my guardian
reasonably believes that visits by that person would have an adverse
effect on me.
(Delete any powers you do not wish your guardian to exercise. If you do
not delete any powers, you will be deemed to have authorised your
10 guardian to exercise the full powers of a guardian under section 24 of the
Guardianship and Administration Act 1986.)
but subject to the following limitations:
(List any limitations you wish to place on your guardian's powers)
3. I require my guardian to take into account the following wishes in
15 exercising, or in relation to the exercise of, the powers conferred by this
appointment--
(State wishes to be taken into account)
This is an appointment of an enduring guardian made under Division 5A of
Part 4 of the Guardianship and Administration Act 1986.
20 ...............................................................................
(Signature of appointor)
Note: An enduring guardian will be able to make decisions on your behalf on
all health care and lifestyle matters you empower your enduring guardian to
make. If you give your enduring guardian power to make decisions about
25 your health care, your enduring guardian will be able to consent or withhold
consent to medical or dental treatment on your behalf.
If your enduring guardian withholds consent to proposed medical or dental
treatment, a practitioner may only provide the treatment if the practitioner
believes on reasonable grounds that it is in your best interests to do so and if
30 the practitioner gives your enduring guardian the opportunity to refer the
matter to the Victorian Civil and Administrative Tribunal (the Tribunal) for
determination.
If you wish to appoint a person who can, unless the Tribunal otherwise
determines, refuse medical treatment on your behalf, you will need to appoint
35 a person as your agent under the Medical Treatment Act 1988.
If you are considering appointing an agent under the Medical Treatment
Act 1988--
43
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 25
Act No.
· you should ensure that you understand the rights and powers which an
appointment under the Medical Treatment Act 1988 confers on your
agent; and
· you may wish to appoint the same person as your agent under the
5 Medical Treatment Act 1988 as the person you appoint as your
enduring guardian, although you may choose a different person for
each role; and
If you appoint or have already appointed a person as your agent under the
Medical Treatment Act 1988 and another person as your enduring
10 guardian--
· the decision of your agent under the Medical Treatment Act 1988 will
have priority over the decision of your enduring guardian in relation to
any proposed medical treatment; and
· your agent under the Medical Treatment Act 1988 will be able to
15 refuse to consent to medical treatment on your behalf in all
circumstances regardless of any consent to the treatment that your
enduring guardian may give or wish to give.
ACCEPTANCE OF APPOINTMENT
I, (insert name, address and occupation of proposed guardian) accept
20 appointment as a guardian under this instrument and undertake to exercise
the powers conferred honestly and in accordance with the provisions of the
Guardianship and Administration Act 1986.
...............................................................................
(Signature of proposed guardian)
25
30
CERTIFICATE OF WITNESSES
We (insert names, addresses and occupations of at least 2 witnesses)
certify--
(a) that both the appointor and the proposed guardian have signed this
35 instrument freely and voluntarily in our presence; and
(b) that both the appointor and the proposed guardian appeared to
understand the effect of this instrument.
44
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 25
Act No.
...............................................................................
(Signature of witness authorised to witness the
signing of statutory declarations)
...............................................................................
5 (Signature of other witness)
_______________
45
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 25
Act No.
FORM 2
REVOCATION OF APPOINTMENT OF ENDURING
GUARDIAN
1. I (insert name, address and occupation of appointor), revoke the
5 appointment of (insert name, address and occupation of proposed
guardian) as my guardian.
2. This revocation of appointment as an enduring guardian is made under
Division 5A of Part 4 of the Guardianship and Administration Act
1986.
10 ...............................................................................
(Signature of appointor)
CERTIFICATE OF WITNESSES
We (insert names, addresses and occupations of at least 2 witnesses)
certify--
15 (a) that the appointor has signed this instrument freely and voluntarily in
our presence; and
(b) that the appointor appeared to understand the effect of this instrument.
...............................................................................
(Signature of witness authorised to witness the
20 signing of statutory declarations)
...............................................................................
(Signature of other witness)".
_______________
46
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 26
Act No.
PART 3--CONSEQUENTIAL AMENDMENTS
No. 59/1986.
26. Mental Health Act 1986
Reprint No. 5
(1) For section 8(4) of the Mental Health Act 1986 as at 11 July
1998.
substitute--
5 "(4) Despite anything in the Guardianship and
Administration Act 1986, the Medical
Treatment Act 1988 or any other law, in
considering, for the purposes of sub-section
(1), whether a person--
10 (a) in respect of whom a guardian has been
appointed under the Guardianship and
Administration Act 1986 or in respect
of whom a person responsible within
the meaning of section 37 of that Act
15 may make decisions relating to
treatment; or
(b) in respect of whom an agent has been
appointed under the Medical
Treatment Act 1988--
20 has refused or is unable to consent to
treatment, that person's personal refusal or
consent only is relevant and not the refusal
or consent of that person's guardian, the
person responsible, the agent or the
25 Tribunal.".
(2) For section 14(1B) of the Mental Health Act
1986 substitute--
"(1B) Despite anything in the Guardianship and
Administration Act 1986, the Medical
30 Treatment Act 1988 or any other law, in
considering, for the purposes of sub-section
(1A), whether a person--
47
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
Act No.
(a) in respect of whom a guardian has been
appointed under the Guardianship and
Administration Act 1986 or in respect
of whom a person responsible within
5 the meaning of section 37 of that Act
may make decisions relating to
treatment; or
(b) in respect of whom an agent has been
appointed under the Medical
10 Treatment Act 1988--
has refused or is unable to consent to
treatment, that person's personal refusal or
consent only is relevant and not the refusal
or consent of that person's guardian, the
15 person responsible, the agent or the
Tribunal.".
(3) For section 86(1) of the Mental Health Act 1986
substitute--
'(1) In this section--
20 "special procedure" means any procedure
specified in the definition of "special
procedure" in section 3 of the
Guardianship and Administration
Act 1986 or prescribed by the
25 regulations made under that Act to be a
special procedure for the purposes of
that Act.'.
(4) In section 86(2) of the Mental Health Act 1986,
for "major medical" substitute "special".
30 (5) In section 86(3) of the Mental Health Act
1986--
(a) for "major medical" substitute "special";
(b) for paragraph (b) substitute--
48
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
s. 26
Act No.
"(b) if the patient is a person to whom
Part 4A of the Guardianship and
Administration Act 1986 applies, the
consent of the Tribunal as required by
5 that Part of that Act is obtained.".
49
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
50
532016B.I1-21/4/99
Guardianship and Administration (Amendment) Act 1999
Act No.
51
532016B.I1-21/4/99
[Index] [Search] [Download] [Related Items] [Help]