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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 Division 6 of Part 4 repealed 15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
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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
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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
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Clause Page
THIS PAGE IS TO BE MASKED
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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
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(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.
_______________
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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
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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;
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"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
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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
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(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.".
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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".
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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
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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".
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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.
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(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
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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
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(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
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(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
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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
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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
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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
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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
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(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
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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--
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(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
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s. 15
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(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
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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
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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--
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"(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
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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".
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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,
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s. 21
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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
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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).
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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
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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
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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)
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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.
...................................................................
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531218B.I1-18/11/97
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s. 25
Act No.
...................................................................
(Signature of at least 2 witnesses)".
_______________
35
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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
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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
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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
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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
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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
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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
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