GUARDIANSHIP AND ADMINISTRATION BOARD (AMENDMENT) BILL 1997
PARLIAMENT OF VICTORIA Guardianship and Administration Board (Amendment) Act 1997 Act No. TABLE OF PROVISIONS Clause Page PART 1--PRELIMINARY 1 1. Purposes 1 2. Commencement 2 PART 2--AMENDMENT OF GUARDIANSHIP AND ADMINISTRATION BOARD ACT 1986 3 3. Principal Act 3 4. Definitions 3 5. New section 3A inserted 6 3A. Meaning of person responsible 6 6. Objects 7 7. Public Advocate 8 8. Guardianship orders 9 9. Authority of plenary guardian 9 10. Power to enforce guardianship order 9 11. Special powers in respect of persons with a disability 10 12. Temporary orders--guardians 10 13. New Division 4A inserted 11 Division 4A--Appointment of Enduring Guardian 11 33A. Appointment of enduring guardian 11 33B. Authority of enduring guardian 12 33C. Revocation of appointment by appointor 13 33D. Revocation of appointment by Board 13 33E. Advice or direction of Board 14 14. Division 6 of Part 4 repealed 15 15. New Part 4A inserted 15 PART 4A--MEDICAL AND DENTAL TREATMENT 16 Division 1--Preliminary 16 36. Application of Part 16 i 531218B.I1-18/11/97
Clause Page Division 2--Treatment permitted without consent 16 37. Urgent medical or dental treatment 16 38. Minor treatment without consent 17 Division 3--Treatment requiring consent 17 39. Persons who may consent to medical or dental treatment 18 40. Effect of consent 18 41. Application for consent of Board for any medical or dental treatment 18 42. Date for hearing 20 42A. Consent of Board for special treatment or other medical or dental treatment 20 42B. Board may confer authority to consent to continuing or further special treatment 21 42C. Consent of person responsible 22 42D. Person responsible may seek advice 23 Division 4--Unlawful Treatment or Consent 24 42E. Special treatment without consent of Board an offence 24 42F. Unlawful consent to medical or dental treatment an offence 24 16. Persons eligible as administrator 24 17. New section 47A inserted 25 47A. Remuneration of professional administrator 25 18. Accounts 25 19. Temporary orders--administrators 27 20. Reviews 28 21. New Part 6A inserted 28 PART 6A--INTERSTATE ORDERS 28 63A. Application of Part 28 63B. Definitions 28 63C. Corresponding laws and orders 29 63D. Ministerial agreements 29 63E. Registration of interstate orders 29 63F. Review of interstate orders 30 63G. Reciprocal arrangements under the State Trustees (State Owned Company) Act 1994 31 22. Regulations 31 23. New Part 9 inserted 31 PART 9--TRANSITIONAL PROVISIONS 31 86. Saving provision for existing enduring powers of attorney 32 ii 531218B.I1-18/11/97
Clause Page 87. Transitional provision for members of the Board eligible to be appointed as administrators 32 24. Statute law revision 32 25. New Schedule inserted 32 SCHEDULE 4 32 PART 3--CONSEQUENTIAL AMENDMENTS 36 26. Amendment of Medical Treatment Act 1988 36 27. Amendment of Mental Health Act 1986 37 NOTES 41 iii 531218B.I1-18/11/97
Clause Page THIS PAGE IS TO BE MASKED iv 531218B.I1-18/11/97
PARLIAMENT OF VICTORIA A BILL to amend the Guardianship and Administration Board Act 1986, the Medical Treatment Act 1988 and the Mental Health Act 1986 and for other purposes. Guardianship and Administration Board (Amendment) Act 1997 The Parliament of Victoria enacts as follows: PART 1--PRELIMINARY 1. Purposes The purposes of this Act are-- (a) to make miscellaneous amendments to the 5 Guardianship and Administration Board Act 1986; and 1 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 2 Act No. (b) to make consequential amendments to the Medical Treatment Act 1988 and the Mental Health Act 1986. 2. Commencement 5 (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 day or days to be proclaimed. 10 (3) If a provision referred to in sub-section (2) does not come into operation before 1 January 1999, it comes into operation on that day. _______________ 2 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 3 Act No. PART 2--AMENDMENT OF GUARDIANSHIP AND ADMINISTRATION BOARD ACT 1986 3. Principal Act No. 58/1986. In this Part, the Guardianship and Reprint No. 3 5 Administration Board Act 1986 is called the as at 19 June Principal Act. 1997. 4. Definitions In section 3(1) of the Principal Act-- (a) insert-- 10 ' "appointor" means a person who appoints an enduring guardian under Division 4A of Part 4; "enduring guardian" means a person appointed as an enduring guardian 15 under Division 4A of Part 4; "major treatment" means medical or dental treatment (other than special treatment) that is prescribed by the regulations to be major treatment for 20 the purposes of Part 4A; "medical or dental treatment" means-- (a) medical treatment (including any medical or surgical procedure, operation or examination and any 25 prophylactic, palliative or rehabilitative care) normally carried out by, or under, the supervision of a medical practitioner; or 30 (b) dental treatment (including any dental procedure, operation or examination) normally carried out 3 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 4 Act No. by or under the supervision of a dentist; or (c) any other treatment prescribed by the regulations to be medical or 5 dental treatment for the purposes of this Act-- but does not include-- (d) any non-intrusive examination made for diagnostic purposes 10 (including a visual examination of the mouth, throat, nasal cavity, eyes or ears); or (e) first-aid treatment; or (f) the administration of a 15 pharmaceutical drug for the purpose, and in accordance with the dosage level, recommended in the manufacturer's instructions (if the drug is one for which a 20 prescription is not required and which is normally self- administered); or (g) any other kind of treatment that is prescribed by the regulations not 25 to be medical or dental treatment for the purposes of this Act; "minor treatment" means medical or dental treatment that is neither special treatment nor major treatment; 30 "non-regenerative tissue" means tissue that, after injury or removal, is not replaced in the body of a living person by natural processes of growth or repair; 4 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 4 Act No. "person responsible" has the meaning given by section 3A; "registered practitioner" means a registered medical practitioner within 5 the meaning of the Medical Practice Act 1994 or a dentist within the meaning of the Dentists Act 1972; "special treatment" means-- (a) any treatment that is intended, or 10 is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out; or (b) termination of pregnancy; or 15 (c) any removal of non-regenerative tissue for the purposes of transplantation; or (d) any other medical or dental treatment that is prescribed by the 20 regulations to be special treatment for the purposes of Part 4A;'; (b) in the definition of "administrator" for "the State Trust or any other person" substitute "the person"; 25 (c) for the definition of "disability" substitute-- ' "disability", in relation to a person, means intellectual impairment, mental disorder, brain injury, physical disability or dementia'; 30 (d) for the definition of "guardian" substitute-- ' "guardian" means-- (a) the Public Advocate, person or body named as a plenary guardian 5 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 5 Act No. or limited guardian in a guardianship order; or (b) a person who becomes a guardian under section 35; or 5 (c) a person named as an enduring guardian in an instrument of appointment as such a guardian;'; (e) the definition of "major medical procedure" is repealed. 10 5. New section 3A inserted After section 3 of the Principal Act insert-- '3A. Meaning of person responsible (1) In this Act, "person responsible" for another person means one of the following 15 persons, in order of priority-- (a) his or her guardian; (b) his or her spouse; (c) his or her primary carer; (d) if he or she does not have a spouse, his 20 or her nearest relative within the meaning of paragraphs (a) to (g) of the definition of "nearest relative" in section 3. (2) The circumstances in which a person is to be 25 regarded as having the care of another person include, but are not limited to, the case where the person, otherwise than for remuneration (whether from the other person or any other source), regularly-- 30 (a) provides domestic services and support to the other person; or 6 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 6 Act No. (b) arranges for the other person to be provided with domestic services and support. (3) A person who is cared for in an institution 5 (such as a hospital, community residential 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 10 she is cared for by some other person is not, 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 15 cared for in that institution. (4) For the purposes of this section, a reference to the spouse of a person-- (a) is a reference to a spouse who is not under guardianship and with whom the 20 relevant person has a close and continuing relationship; and (b) includes a reference to a person referred to in section 3(2)(b).'. 6. Objects 25 In section 4(1) of the Principal Act, after paragraph (d) insert-- "; and (e) to provide for consent to medical and dental treatment; and 30 (f) to provide for the appointment of enduring guardians.". 7 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 7 Act No. 7. Public Advocate (1) In section 15(b) of the Principal Act omit "co- ordinate and". (2) In section 16(1) of the Principal Act-- 5 (a) in paragraph (a), for sub-paragraphs (ii) and (iii) substitute-- "(ii) an alternative guardian (whether plenary or limited); and"; (b) after paragraph (h) insert-- 10 "(ha) for the purposes of an investigation under paragraph (h) or the provision of a report under section 11(2), request a person, government department, institution, welfare organisation or 15 service provider to provide information; and"; (c) after paragraph (j) insert-- "; and (k) make recommendations to the Board 20 with respect to guidelines proposed to be issued by the Board about consent to special treatment and medical or dental treatment under Part 4A.". (3) In section 16(2) of the Principal Act-- 25 (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 case may be"; 30 (c) in paragraph (b) omit "or administrator". (4) In section 18(1)(b) of the Principal Act omit "or administrator". 8 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 8 Act No. 8. 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 Board 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 the family of the proposed represented person; and (c) the desirability of preserving existing 15 family relationships.". 9. Authority of plenary guardian In section 24(2) of the Principal Act-- (a) in paragraph (d), for "Division 6" substitute "Part 4A"; 20 (b) after paragraph (d) insert-- "; and (e) to restrict visits to a represented person to such extent as may be necessary in his or her best interests and to prohibit 25 visits by any person if the guardian reasonably believes that they would have an adverse effect on the represented person.". 10. Power to enforce guardianship order 30 After section 26(1) of the Principal Act insert-- "(1A) If the Board makes an order under sub- section (1) empowering a guardian or a 9 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 11 Act No. specified person to take such measures or actions as are specified in the order, the Board must hold a hearing to review that order as soon as practicable after the making 5 of that order but within 42 days of making that order.". 11. Special powers in respect of persons with a disability In section 27(2) of the Principal Act, for "and cared for at a place specified in the order" 10 substitute "a place specified in the order for assessment and placement". 12. Temporary orders--guardians (1) In section 32(1) of the Principal Act, for "the Public Advocate as the guardian" substitute "a 15 guardian". (2) In section 33(1) of the Principal Act, for "the Public Advocate" substitute "any person eligible to be appointed under section 23". (3) In section 33 of the Principal Act, for sub-section 20 (2) substitute-- "(2) A temporary order-- (a) remains in effect for such period not exceeding 21 days as is specified in the order; and 25 (b) may be renewed once for a further period not exceeding 21 days.". (4) In section 33(3) of the Principal Act, for "before the expiry of the temporary order" substitute "as soon as practicable after the making of a 30 temporary order but within 42 days of making that order". 10 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 13 Act No. 13. New Division 4A inserted After section 33 of the Principal Act insert-- "Division 4A--Appointment of Enduring Guardian 5 33A. Appointment of enduring guardian (1) A person who is of or over the age of 18 years may, by instrument in writing, appoint a person to be his or her enduring guardian. (2) An instrument to appoint an enduring 10 guardian is effective if-- (a) it is in the form of, or to the effect of, Form 1 in Schedule 4; and (b) it is endorsed with an acceptance in the form set out in Form 1 in Schedule 4 15 signed by the person appointed as the enduring guardian; and (c) the execution of the instrument is attested by two witnesses-- (i) neither of whom is a party to the 20 instrument nor a relative to a party to it; and (ii) neither of whom is the person appointed as the enduring guardian; and 25 (iii) both of whom have witnessed the 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 30 statutory declaration. 11 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 13 Act No. (3) A person is not eligible to be appointed as an 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 5 enduring guardian if he or she is, in a professional or administrative capacity, directly or indirectly responsible for, or involved in, the care or treatment of the appointor or provides accommodation to the 10 appointor in return for the payment of a fee or other consideration. (5) If a person who is validly appointed as an enduring guardian becomes ineligible to continue to be appointed as an enduring 15 guardian by reason of any of the matters referred to in sub-section (4), the appointment of that person as enduring guardian lapses. 33B. Authority of enduring guardian 20 (1) An instrument appointing an enduring guardian authorises the person appointed to exercise the powers of a guardian in relation to the matters specified in that instrument relating to his or her personal circumstances 25 if the appointor subsequently becomes unable by reason of a disability to make reasonable judgements in respect of all or any of those matters. (2) If an instrument appointing an enduring 30 guardian does not specify the matters in relation to which the person appointed may exercise the powers of a guardian, the instrument authorises that person to exercise the powers of a guardian under section 24 if 35 the appointor subsequently becomes unable by reason of a disability to make reasonable 12 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 13 Act No. judgements in respect of all or any of the matters relating to his or her personal circumstances. (3) An enduring guardian cannot consent to any 5 special treatment of the represented person. (4) An enduring guardian must exercise his or her authority in accordance with section 28. 33C. Revocation of appointment by appointor (1) If a person appoints an enduring guardian, 10 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 appointment. 15 (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 (b) the execution of the instrument is 20 attested by two witnesses-- (i) neither of whom is a party to the instrument nor a relative to a party to it; and (ii) neither of whom is the person 25 appointed as the enduring guardian; and (iii) both of whom have witnessed the instrument in the presence of the appointor and each other; and 30 (iv) one of whom is authorised by law to witness the signing of a statutory declaration. 33D. Revocation of appointment by Board 13 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 13 Act No. (1) The Board 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 5 of the appointment; or (b) the Board is satisfied that the enduring guardian-- (i) is not able or willing to act in that capacity; or 10 (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-- 15 (a) the Public Advocate; or (b) the enduring guardian; or (c) the appointor of the enduring guardian; or (d) the administrator of the appointor's 20 estate; or (e) any other person who the Board is satisfied has an interest in the person or in the estate of the person in respect of whom the application is made. 25 (3) An application under sub-section (2) must be in the prescribed form and be lodged with the executive officer. (4) An appointment of an enduring guardian is not revoked if the appointor becomes a 30 represented person. 33E. Advice or direction of Board 14 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 14 15 Act No. (1) An enduring guardian may apply for advice from or direction by the Board on any matter relating to the scope of his or her appointment as such or the exercise of any 5 power by the guardian under the instrument of appointment. (2) The Board may require notice of an application to be given to any person that the Board directs and may exercise its powers 10 under this section without a hearing. (3) The Board may-- (a) approve or disapprove any act proposed to be done by the enduring guardian; and 15 (b) give such advice or direction as it considers appropriate; and (c) vary the effect of the instrument of appointment or make any other order it considers necessary; and 20 (d) suspend for a specified period the authority of an enduring guardian under an instrument of appointment. (4) The Board of its own motion may direct, or offer advice to, an enduring guardian in 25 respect of any matter.". 14. Division 6 of Part 4 repealed Division 6 of Part 4 of the Principal Act is repealed. 15. New Part 4A inserted 15 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 Act No. After section 35 of the Principal Act insert-- "PART 4A--MEDICAL AND DENTAL TREATMENT Division 1--Preliminary 5 36. Application of Part (1) This Part applies to a person with a disability who-- (a) is of or over the age of 18 years; and (b) is incapable of giving consent to the 10 carrying out of medical or dental treatment, whether or not the person is a represented person. (2) For the purposes of sub-section (1), a person is incapable of giving consent to the carrying 15 out of medical or dental treatment if the person-- (a) is incapable of understanding the general nature and effect of the proposed treatment; or 20 (b) is incapable of indicating whether or not he or she consents or does not consent to the carrying out of the treatment. Division 2--Treatment permitted without 25 consent 37. Urgent medical or dental treatment A registered practitioner may carry out medical or dental treatment on a person to whom this Part applies without consent 30 under this Part if the registered practitioner carrying out, or supervising the carrying out 16 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 15 Act No. of, the treatment considers that the treatment is necessary, as a matter of urgency-- (a) to save the person's life; or (b) to prevent serious damage to the 5 person's health; or (c) except in the case of special treatment, to prevent the person from suffering or continuing to suffer significant pain or distress. 10 38. Minor treatment without consent (1) A registered practitioner may carry out, or supervise the carrying out of, minor treatment on a person to whom this Part applies without consent under this Part if-- 15 (a) there is no person responsible for the relevant person or, if there is such a person, that person either cannot be contacted or is unable or unwilling to decide whether to consent to the 20 carrying out of the treatment; and (b) the treatment is necessary and is the form of treatment that will most successfully promote the relevant person's health and well-being. 25 (2) A registered practitioner who without consent carries out, or supervises the carrying out of, minor treatment on a person to whom this Part applies must certify in writing in the clinical records relating to that 30 person that the treatment is necessary and is the form of treatment that will most successfully promote that person's health and well-being. Division 3--Treatment requiring consent 17 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 15 Act No. Subdivision 1--General 39. Persons who may consent to medical or dental treatment Consent to the carrying out of medical or 5 dental treatment on a person to whom this Part applies may be given-- (a) in the case of special treatment or any other medical or dental treatment, by the Board; or 10 (b) in the case of minor or major treatment, by the person responsible for the relevant person. 40. Effect of consent A consent given under this Part in respect of 15 the carrying out of medical or dental treatment on a person to whom this Part applies has effect as if-- (a) that person had been capable of giving consent to the carrying out of the 20 treatment; and (b) the treatment had been carried out with the consent of that person. Subdivision 2--Treatment with consent of Board 41. Application for consent of Board for any 25 medical or dental treatment (1) An application for the consent of the Board to the carrying out of any special treatment or other medical or dental treatment on a person to whom this Part applies may be 30 made by any person who the Board is satisfied has a proper interest in the matter. (2) The Board may, in consultation with the Public Advocate, issue and make available to 18 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 15 Act No. members of the public guidelines specifying situations in which applications may be made to the Board under this Part for its consent to any special treatment or other 5 medical or dental treatment. (3) An application must be in the prescribed form and be lodged with the executive officer. (4) The executive officer must, at least 7 days 10 before the day on which the application is heard, give notice of the hearing to-- (a) the person in respect of whom the application is made; and (b) the guardian of that person; and 15 (c) the Public Advocate; and (d) any other person that the Board directs. (5) A notice under sub-section (4) must contain information with respect to-- (a) the time and place of the hearing; and 20 (b) the nature of the proceedings; and (c) in the case of a notice given to a person under sub-section (4)(a) or (4)(b)-- (i) the entitlement of that person to representation before the Board; 25 and (ii) the kinds of orders that may be made by the Board under this Part. (6) The Board may, if it considers appropriate to do so-- 30 (a) shorten the time for giving notice to all or any of the persons referred to in sub- section (4); and 19 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 15 Act No. (b) dispense with the requirements for notice to be given to all or any of the persons referred to in sub-section (4) other than the person in respect of 5 whom the application is made and the Public Advocate. (7) Despite sub-section (4), if in the opinion of the Board it would serve no useful purpose for a notice of an application to be given to 10 the person in respect of whom the application is made, the Board may dispense with the requirement for notice to that person. (8) If the Board dispenses with the requirement 15 for notice to be given to the person in respect of whom the application is made, the Board must notify the Public Advocate as soon as possible that it has done so. 42. Date for hearing 20 The Board must commence to hear an application under section 41-- (a) in the case of a hearing for consent for special treatment, within 14 days after the day on which the application is 25 received by the Board; (b) in any other case, within 30 days after the day on which the application is received by the Board. 42A. Consent of Board for special treatment or 30 other medical or dental treatment (1) On hearing an application under section 41 for consent to the carrying out of any special treatment or other medical or dental treatment, the Board may consent to the 20 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 15 Act No. carrying out of the treatment if it is satisfied that-- (a) the person in respect of whom the application is made is incapable of 5 giving consent; and (b) the special treatment or medical or dental treatment would be in the best interests of that person. (2) For the purposes of determining whether any 10 special treatment or other medical or dental treatment would be in the best interests of the person in respect of whom the application is made, matters to be taken into account by the Board include-- 15 (a) the wishes of that person, so far as they can be ascertained; and (b) the consequences to that person if the treatment is not carried out; and (c) any alternative treatment available; and 20 (d) the nature and degree of any significant risks associated with the treatment or any alternative treatment; and (e) that the treatment is to be carried out only to promote and maintain the health 25 and well-being of that person; and (f) any other matters prescribed by the regulations. 42B. Board may confer authority to consent to continuing or further special treatment 30 (1) The Board may, at the time that it consents to the carrying out of special treatment on a person to whom this Part applies, confer on the guardian of that person authority to consent to-- 21 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 15 Act No. (a) the continuation of the treatment; or (b) the carrying out of further special treatment of a similar nature. (2) The Board may confer an authority under 5 this section only at the request, or with the consent, of the guardian. (3) The Board may at any time-- (a) impose conditions or give directions as to the of exercise an authority under 10 this section; or (b) revoke that authority. (4) If the Board confers an authority under this section, a person may request the guardian's consent to the carrying out of the relevant 15 treatment. Subdivision 3--Treatment with consent of person responsible 42C. Consent of person responsible (1) A person responsible for a person to whom this Part applies may consent to the carrying 20 out of minor or major treatment if he or she is satisfied that-- (a) the relevant person is incapable of giving consent; and (b) the treatment would be in the best 25 interests of that person. (2) For the purposes of determining whether any minor or major treatment would be in the best interests of a person to whom this Part applies, matters to be taken into account by 30 the responsible person include-- (a) the wishes of the relevant person, so far as they can be ascertained; and 22 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 15 Act No. (b) the consequences to the relevant person if the treatment is not carried out; and (c) any alternative treatment available; and (d) the nature and degree of any significant 5 risks associated with the treatment or any alternative treatment; and (e) that the treatment is to be carried out only to promote and maintain the health and well-being of that person; and 10 (f) any other matters prescribed by the regulations. (3) The Board may, in consultation with the Public Advocate, issue and make available to the public guidelines specifying situations in 15 which a person responsible may consent to minor or major treatment in respect of a person to whom this Part applies. 42D. Person responsible may seek advice (1) A person responsible may apply for the 20 advice of the Board upon any matter relating to the scope of the authority of the person responsible to consent to major or minor medical treatment on behalf of a person to whom this Part applies. 25 (2) The Board may require notice of an application under sub-section (1) to be served on any person that the Board directs. (3) The Board may-- (a) approve or disapprove of any act 30 proposed to be done by the person responsible; and 23 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 15 16 Act No. (b) give such advice as it considers appropriate; and (c) make any order it considers necessary. (4) An action does not lie against a person 5 responsible on account of an act or thing done or omitted by that person under any order or on the advice of the Board made or given under this section unless in representing the facts to the Board that 10 person has been guilty of fraud, wilful concealment or misrepresentation. Division 4--Unlawful Treatment or Consent 42E. Special treatment without consent of Board an offence 15 (1) A registered practitioner must not carry out any special treatment on a person to whom this Part applies unless the Board has consented to the carrying out of that treatment. 20 (2) A registered practitioner who contravenes sub-section (1) is guilty of professional misconduct. 42F. Unlawful consent to medical or dental treatment an offence 25 A person who is not authorised to give consent to medical or dental treatment for a person to whom this Part applies and who purports to give any such consent, or represents to a registered practitioner that he 30 or she has authority to consent, is guilty of an offence. Penalty: 20 penalty units.". 16. Persons eligible as administrator 24 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 18 Act No. (1) In section 47(1) of the Principal Act-- (a) paragraphs (a) and (b) are repealed. (b) in paragraph (c), omit "other". (2) After section 47(1) insert-- 5 "(1A) Unless the President of the Board otherwise permits, a member of the Board is not eligible to be appointed as an administrator for the purposes of this Part within 3 years after his or her resignation or retirement 10 from the Board.". (3) Section 47(5) of the Principal Act is repealed. 17. New section 47A inserted After section 47 of the Principal Act insert-- "47A. Remuneration of professional 15 administrator (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 20 reward from the estate of a represented person for acting as administrator unless the Board otherwise specifies in the administration order. (2) The remuneration to which an administrator 25 who carries on a business of, or including, the administration of estates is entitled is to be approved by the Board.". 18. Accounts (1) For section 58(1) and (2) of the Principal Act 30 substitute-- 25 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 Act No. "(1) The Board may, at the time that it appoints an administrator under section 46 or such later time as the Board determines, appoint a person to examine or audit the accounts of 5 the estate of a represented person for a fee approved by the Board and paid from that estate. (2) Unless the Board otherwise directs, an administrator must lodge-- 10 (a) if the Board has appointed a person under sub-section (1) to examine or audit accounts, with that person; or (b) in any other case, with the Board-- on, or as soon as practicable after, the 15 anniversary of the appointment of the 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 20 receipts and disbursements in respect of that estate. (2A) The Board may require an administrator to lodge accounts at a time other than a time specified in sub-section (2). 25 (2B) A person appointed under sub-section (1) to examine or audit accounts must lodge with the Board a report in relation to the accounts examined or audited. (2C) A report under sub-section (2B) may 30 recommend the disallowance of any item in 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 35 for the costs incurred by the State Trust in 26 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 19 Act No. connection with the State Trust's report to the Board". (4) For section 58(5) of the Principal Act substitute-- 5 "(5) An administrator must, in respect of each 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 cost of 10 examining or auditing the 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". 19. Temporary orders--administrators 15 (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, for "appointing the State Trust" substitute 20 "appointing any person who may be appointed under section 47(1)". (3) For section 60(2) of the Principal Act, substitute-- "(2) A temporary order-- 25 (a) remains in effect for such period not exceeding 21 days as is specified in the order; and (b) may be renewed once for a further period not exceeding 21 days.". 30 (4) In section 60(3) of the Principal Act, for "before 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". 27 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 20 Act No. 20. Reviews (1) Section 61(1) of the Principal Act is repealed. (2) In section 61(3) of the Principal Act, for "guardianship order or administration order" 5 substitute "order made by the Board". (3) After section 62(2) of the Principal Act insert-- "(2A) The Board may, in a notice under sub- section (1), advise that a person to whom the notice is given is not required to attend the 10 hearing of a review of an order if that person does not have any matters to raise with the Board in relation to the review of the order.". 21. New Part 6A inserted After section 63 of the Principal Act insert-- 15 'PART 6A--INTERSTATE ORDERS 63A. Application of Part This Part applies to a guardianship order or an administration order made under a corresponding law of a participating State in 20 respect of a person who-- (a) resides in the participating State and proposes entering Victoria; or (b) has property situated in Victoria. 63B. Definitions 25 In this Part-- "corresponding law" means a law that, under an Order in force under section 63C, is declared to be a corresponding law for the purposes of this Part; 30 "determining body", in relation to a participating State, means a court, 28 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 21 Act No. tribunal, board or other body that is authorised under a corresponding law to make, revoke, amend or vary a guardianship order or an administration 5 order; "interstate order" means an order made under a corresponding law of a participating State; "participating State" means a State in 10 which a corresponding law is in force; "State" includes Territory. 63C. Corresponding laws and orders (1) The Governor in Council on the recommendation of the Minister, by Order 15 published in the Government Gazette, may declare that a law of another State is a corresponding law for the purposes of this Part. (2) An Order under sub-section (1) in respect of 20 a law of another State may include a declaration that an order under that law is substantially similar to a guardianship order or an administration order for the purposes of this Part. 25 63D. Ministerial agreements The Minister may make an agreement with a Minister responsible for administering a corresponding law about any matter in connection with the administration of this 30 Part or a corresponding law. 63E. Registration of interstate orders (1) The Board, on the application of a guardian or administrator of a represented person in a 29 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 Act No. participating State, may register an interstate order. (2) If the guardian in a participating State is a person who holds an equivalent position to 5 the Public Advocate, the Board 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 that 10 person. (3) On registration of an interstate order, the Board must notify the determining body which made the order that the order has been registered. 15 (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) An interstate order is not revoked in the 20 participating State in which it was made upon that order being registered under this Part. 63F. Review of interstate orders (1) A registered interstate order may be 25 reviewed by the Board in accordance with Part 6. (2) The Board may make any order that it is authorised to make under Part 6 in relation to an interstate order that has been registered 30 under this Part, including an order appointing a new guardian or administrator. (3) The Board must notify the determining body which made the interstate order as soon as practicable after the Board makes an order 35 under sub-section (2). 30 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 22 23 Act No. (4) An order made by the Board 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 5 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 10 Nothing in this Part affects the operation of section 12 of the State Trustees (State Owned Company) Act 1994.'. 22. Regulations In section 82(1) of the Principal Act, after 15 paragraph (c) insert-- "(ca) prescribing any treatment-- (i) to be medical or dental treatment for the purposes of this Act; or (ii) not to be medical or dental treatment 20 for the purposes of this Act; or (iii) to be special treatment or major treatment for the purposes of Part 4A; and (cb) prescribing any matters to be taken into 25 account in determining whether special treatment or medical or dental treatment would be in the best interests of a person to whom Part 4A applies; and". 23. New Part 9 inserted 30 After Part 8 of the Principal Act insert-- "PART 9--TRANSITIONAL PROVISIONS 31 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 25 Act No. 86. Saving provision for existing enduring powers of attorney An enduring power of attorney under the Instruments Act 1958 executed before the 5 commencement of section 13 of the Guardianship and Administration Board (Amendment) Act 1997 has effect on and after that commencement as if this Act had not been amended by that section. 10 87. Transitional provision for members of the Board eligible to be appointed as administrators Section 47(1A) does not apply to a person who resigned or retired as a member of the 15 Board before the commencement of the Guardianship and Administration Board (Amendment) Act 1997.". 24. Statute law revision In the Principal Act-- 20 (a) in section 6, for "Public Service Act 1974" substitute "Public Sector Management Act 1992"; (b) in section 47(4)(b), for "that" (where secondly occurring) substitute "than"; 25 (c) section 58A(4) is repealed; (d) in section 62(1), for "is to held" substitute "is to be held". 25. New Schedule inserted After Schedule 3 to the Principal Act insert-- 30 "SCHEDULE 4 32 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 Act No. INSTRUMENTS RELATING TO ENDURING GUARDIAN FORM 1 APPOINTMENT OF ENDURING GUARDIAN 1. I (insert name, address and occupation of appointor), appoint (insert 5 name, address and occupation of proposed guardian) to be my guardian. 2. I authorise my guardian, in the event that I become unable by reason of a disability to make reasonable judgements in respect of matters relating to my personal circumstances-- * to exercise the powers of a guardian in relation to the following 10 matters-- (State the matters in relation to which the proposed guardian may make decisions or give consent e.g. accommodation, health care, etc.) * to exercise the powers of a guardian under section 24 of the Guardianship and Administration Board Act 1986. 15 (* Delete whichever is inapplicable) 3. I require my guardian to observe the following conditions in exercising, or in relation to the exercise of, the powers conferred by this statement-- (State any conditions to which the powers are subject) 4. This is an appointment of an enduring guardian made under Division 4A 20 of Part 4 of the Guardianship and Administration Board Act 1986. ...................................................................... (Signature of appointor) ACCEPTANCE OF APPOINTMENT I, (insert name, address and occupation of proposed guardian) accept 25 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 Board Act 1986. ............................................................................... (Signature of proposed guardian) 33 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 25 Act No. 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 5 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. ................................................................... ................................................................... 10 (Signature of at least 2 witnesses) ------------------ FORM 2 REVOCATION OF APPOINTMENT OF ENDURING GUARDIAN 15 1. I (insert name, address and occupation of appointor), revoke the 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 4A of Part 4 of the Guardianship and Administration Board 20 Act 1986. .......................................................................... (Signature of appointor) CERTIFICATE OF WITNESSES We (insert names, addresses and occupations of at least 2 witnesses) 25 certify-- (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. ................................................................... 34 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 25 Act No. ................................................................... (Signature of at least 2 witnesses)". _______________ 35 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 26 Act No. PART 3--CONSEQUENTIAL AMENDMENTS No. 41/1988. 26. Amendment of Medical Treatment Act 1988 Reprint No. 3 (1) In section 3 of the Medical Treatment Act 1988 as at 21 November insert-- 1996. 5 ' "guardian" includes a person appointed as an enduring guardian under the Guardianship and Administration Board Act 1986;'. (2) In section 5A(1) of the Medical Treatment Act 1988, after paragraph (b) insert-- 10 "; or (c) if the person has appointed an enduring guardian under the Guardianship and Administration Board Act 1986 with authority to make decisions about medical 15 treatment, by that guardian.". (3) In section 5D(1) of the Medical Treatment Act 1988, after paragraph (b) insert-- "; or (c) the appointment of an enduring guardian 20 under the Guardianship and Administration Board Act 1986 with authority to make decisions about medical treatment is revoked--". (4) In section 5D of the Medical Treatment Act 25 1988, for sub-section (2) substitute-- "(2) If the Guardianship and Administration Board-- (a) suspends an enduring power of attorney (medical treatment); or 30 (b) suspends the appointment of an enduring guardian under the 36 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 27 Act No. Guardianship and Administration Board Act 1986 with authority to make decisions about medical treatment-- any refusal of treatment certificate 5 completed by the agent, alternate agent or enduring guardian before the suspension ceases to have effect during the period of the suspension.". (5) In section 5D(3) of the Medical Treatment Act 10 1988, after paragraph (b) insert-- "; or (c) a decision of a guardian appointed under the Guardianship and Administration Board Act 1986 resulting in the completion of a 15 refusal of treatment certificate is not authorised by an order under that Act relating to medical treatment or an instrument appointing the guardian--". (6) In Schedule 3 to the Medical Treatment Act 20 1988, after "Guardianship and Administration Board Act 1986." insert-- "* an appointment of enduring guardian under the Guardianship and Administration Board Act 1986.". No. 59/1986. 25 27. Amendment of Mental Health Act 1986 Reprint No. 4 (1) For section 8(4) of the Mental Health Act 1986 as at 19 June 1997. substitute-- "(4) Despite anything in the Guardianship and Administration Board Act 1986, the 30 Medical Treatment Act 1988 or any other law, in considering, for the purposes of sub- section (1), whether a person-- (a) in respect of whom a guardian has been appointed under the Guardianship and 37 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 27 Act No. Administration Board Act 1986 or in respect of whom a person responsible within the meaning of that Act may consent to medical treatment; or 5 (b) in respect of whom an agent has been appointed under the Medical Treatment Act 1988-- has refused or is unable to consent to treatment, that person's personal refusal or 10 consent only is relevant and not the refusal or consent of that person's guardian, the person responsible, the agent or the Guardianship and Administration Board.". (2) For section 14(1B) of the Mental Health Act 15 1986 substitute-- "(1B) Despite anything in the Guardianship and Administration Board Act 1986, the Medical Treatment Act 1988 or any other law, in considering, for the purposes of sub- 20 section (1A), whether a person-- (a) in respect of whom a guardian has been appointed under the Guardianship and Administration Board Act 1986 or in respect of whom a person responsible 25 within the meaning of that Act may consent to medical treatment; or (b) in respect of whom an agent has been appointed under the Medical Treatment Act 1988-- 30 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 35 Guardianship and Administration Board.". 38 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 27 Act No. (3) In section 85(1) of the Mental Health Act 1986, for paragraph (b) substitute-- "(b) in any other case, with the consent of-- (i) the authorised psychiatrist; or 5 (ii) the person responsible within the meaning of section 3A of the Guardianship and Administration Board Act 1986; or (iii) if there is in force an instrument 10 appointing an enduring guardian under the Guardianship and Administration Board Act 1986 with authority to make decisions about the medical treatment of that person, the 15 enduring guardian; or (iv) if there is in force an instrument appointing an agent under section 5A of the Medical Treatment Act 1988 to make decisions about the medical 20 treatment of that person, the agent.". (4) For section 86(1) of the Mental Health Act 1986 substitute-- '(1) In this section-- "special treatment" means any treatment 25 specified in the definition of "special treatment" in section 3 of the Guardianship and Administration Board Act 1986 or prescribed by the regulations made under that Act to be 30 special treatment for the purposes of that Act.'. (5) In section 86(2) of the Mental Health Act 1986, for "major medical procedure" substitute "special treatment". 39 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 s. 27 Act No. (6) In section 86(3) of the Mental Health Act 1986-- (a) for "major medical procedure" substitute "special treatment"; 5 (b) in paragraph (b)-- (i) omit "represented"; (ii) for "Division 6 of Part 4" substitute "Part 4A"; (iii) omit "guardian and the"; 10 (iv) for "Division" (where secondly occurring) substitute "Part". 40 531218B.I1-18/11/97
Guardianship and Administration Board (Amendment) Act 1997 Notes Act No. NOTES By Authority. Government Printer for the State of Victoria. 41 531218B.I1-18/11/97