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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
LEGISLATIVE COUNCIL
Guardianship and Administration Amendment
Bill 1999
A Bill for
An Act to amend the Guardianship and Administration Act 1990 and
for related purposes.
The Parliament of Western Australia enacts as follows:
1. Short title
This Act may be cited as the Guardianship and Administration
Amendment Act 1999.
page 1
41--1
Guardianship and Administration Amendment Bill 1999
s. 2
2. Commencement
This Act comes into operation on the day on which it receives
the Royal Assent.
3. The Act amended
5 The amendments in this Act are to the Guardianship and
Administration Act 1990*.
[* Reprinted as at 21 April 1997.
For subsequent amendments see 1998 Index to Legislation of
Western Australia, Table 1, p. 110.]
10 4. Section 3 amended
(1) Section 3(1) is amended in the definition of "determination" as
follows:
(a) after paragraph (g) by deleting "and";
(b) after paragraph (h) by inserting --
15 "
(i) a decision under section 15A; and
(j) a decision under section 17C;
".
(2) Section 3(1) is amended after the definition of "member" by
20 inserting --
"
"mental disability" includes an intellectual disability,
a psychiatric condition, an acquired brain injury
and dementia;
25 ".
page 2
Guardianship and Administration Amendment Bill 1999
s. 5
5. Section 6 amended
After section 6(6) the following subsections are inserted --
"
(7) Except when a person has been appointed under
5 subsection (8) to be the acting deputy president, a
member who is a Registrar of the Supreme Court (or if
there are 2 or more such members, the member to be
first appointed as Registrar) is to act as deputy
president during the illness, unavailability or absence
10 of the deputy president and while so acting may
perform the functions of the deputy president.
(8) The Chief Justice may appoint a person qualified to be
appointed as deputy president to be the acting deputy
president during the illness, unavailability or absence
15 of the deputy president and while so appointed that
person may perform the functions of the deputy
president.
".
6. Section 15A amended
20 Section 15A is amended by inserting before "misconceived" --
" frivolous, vexatious, ".
7. Section 17A amended
(1) Section 17A(1) is amended by deleting "under Division 1".
(2) Section 17A(2) is amended by deleting "within 10 days of the
25 date of the determination." and inserting instead --
"
within 28 days of the date of the determination or, if
the Full Board considers there is good reason for
page 3
Guardianship and Administration Amendment Bill 1999
s. 8
making the request outside that time, such further time
as the Full Board allows.
".
8. Section 45 amended
5 Section 45(2) is amended as follows:
(a) after paragraph (c) by deleting "and";
(b) after paragraph (d) by deleting the full stop and inserting
instead a semicolon and the following paragraphs --
"
10 (e) decide what education and training the
represented person is to receive;
(f) decide with whom the represented person is to
associate;
(g) as the next friend of the represented person,
15 commence, conduct or settle any legal
proceedings on behalf of the represented
person, except proceedings relating to the estate
of the represented person; and
(h) as the guardian ad litem of the represented
20 person, defend or settle any legal proceedings
taken against the represented person, except
proceedings relating to the estate of the
represented person.
".
25 9. Section 64 amended
(1) Section 64(1)(a) is amended by deleting "mental disorder,
intellectual handicap, or other mental disability" and inserting
instead --
" a mental disability, ".
page 4
Guardianship and Administration Amendment Bill 1999
s. 10
(2) Section 64(4) is repealed.
10. Section 70 amended
Section 70(2) is repealed and the following subsections are
inserted instead --
5 "
(2) Without limiting the generality of subsection (1), an
administrator acts in the best interests of a represented
person if he acts as far as possible --
(a) as an advocate for the represented person in
10 relation to the estate;
(b) in such a way as to encourage the represented
person to live in the general community and
participate as much as possible in the life of the
community;
15 (c) in such a way as to encourage and assist the
represented person to become capable of caring
for himself and of making reasonable
judgments in respect of matters relating to his
person;
20 (d) in such a way as to protect the represented
person from financial neglect, abuse or
exploitation;
(e) in consultation with the represented person,
taking into account, as far as possible, the
25 wishes of that person as expressed, in whatever
manner, or as gathered from the person's
previous actions;
(f) in the manner that is least restrictive of the
rights, while consistent with the proper
30 protection, of the represented person;
page 5
Guardianship and Administration Amendment Bill 1999
s. 11
(g) in such a way as to maintain any supportive
relationships the represented person has; and
(h) in such a way as to maintain the represented
person's familiar cultural, linguistic and
5 religious environment.
(3) Nothing in subsection (2)(a) shall be read as
authorizing an administrator to act contrary to the
Legal Practitioners Act 1893.
(4) Nothing in subsection (2) shall be read as restricting
10 the functions of an administrator at common law or
under any written law.
".
11. Section 90 amended
Section 90 is amended by deleting "confirm the order or may"
15 and inserting instead --
"
, as it considers necessary in the best interests of the
represented person, confirm the order or
".
20 12. Section 102 amended
Section 102 is amended in the definition of "donee" by inserting
after "attorney" --
"
and may, in accordance with section 104B(2),
25 include a substitute donee
".
page 6
Guardianship and Administration Amendment Bill 1999
s. 13
13. Section 104 amended
Section 104(2)(b) is amended by deleting "executed by the
person or persons appointed to be the donee of the power." and
inserting instead --
5 "
executed by --
(i) the person or persons appointed to be
the donee of the power; and
(ii) where applicable, the person or persons
10 appointed to be the substitute donee of
the power.
".
14. Section 104B inserted
After section 104A the following section is inserted --
15 "
104B. Substitute donees
(1) A person creating an enduring power of attorney may,
in the instrument creating the power of attorney,
appoint a person to be a substitute donee of the power.
20 (2) Subject to this Act, a substitute donee referred to in
subsection (1) becomes the donee of the power only
on, or during, the occurrence of events or
circumstances specified in the instrument.
".
25 15. Section 106 amended
(1) Section 106(2)(b) is amended by deleting "mental disorder or
other mental disability," and inserting instead --
" a mental disability, ".
page 7
Guardianship and Administration Amendment Bill 1999
s. 16
(2) Section 106(7) is repealed.
16. Section 107 amended
Section 107(1) is amended as follows:
(a) after paragraph (b) by deleting "and";
5 (b) after paragraph (c) by deleting the full stop and inserting
instead --
"
; and
(d) shall, if the donee becomes bankrupt, report
10 that bankruptcy to the Board.
".
17. Section 109 amended
(1) Section 109(1)(c) is amended by deleting "or appointing a
substitute donee of the power." and inserting instead --
15 "
, appointing a substitute donee of the power or
confirming that a person appointed to be the
substitute donee of the power has become the
donee.
20 ".
(2) Section 109(3) is amended by inserting after "under this
section" --
"
or upon receiving a report of a donee's bankruptcy
25 under section 107(1)(d)
".
page 8
Guardianship and Administration Amendment Bill 1999
s. 18
18. Section 119 amended
(1) Section 119(2) is amended as follows:
(a) by deleting ", subject to subsection (3),";
(b) by deleting "nearest relative of the person" and inserting
5 instead --
" person referred to in subsection (3) ".
(2) Section 119(3) is repealed and the following subsections are
inserted instead --
"
10 (3) For the purposes of subsection (2), the person who may
consent to treatment is the first in order of priority of
the following persons --
(a) a guardian of the person needing the treatment;
(b) the spouse of the person needing the treatment;
15 (c) a person who, on a regular basis, provides or
arranges for domestic services and support to
the person needing the treatment but does not
receive remuneration for doing so;
(d) a person who is the nearest relative (other than
20 the spouse) of the person needing the treatment
and who maintains a close personal relationship
with the person needing the treatment;
(e) any other person who maintains a close
personal relationship with the person needing
25 treatment; or
(f) a person prescribed in the regulations.
(3a) For the purposes of subsection (3) a person is to be
regarded as maintaining a close personal relationship
with the person needing the treatment if the
30 relationship is maintained through frequent personal
page 9
Guardianship and Administration Amendment Bill 1999
s. 19
contact and a personal interest in the welfare of the
person needing the treatment.
".
(3) Section 119(4) is amended by deleting the definition of "urgent
5 treatment" and inserting instead --
"
"urgent treatment" means treatment that in the
opinion of the practitioner concerned is urgently
needed --
10 (a) to save the life of the person needing the
treatment;
(b) to prevent serious damage to the health of
the person needing the treatment; or
(c) to prevent the person needing the treatment
15 from suffering or continuing to suffer
significant pain or distress.
".
19. Schedule 1 amended
Schedule 1 is amended by deleting clause 2 of Part A.
20 20. Schedule 3 amended
(1) Schedule 3 is amended in Form 1 by inserting after item 1 --
"
1a. I APPOINT G.H. of
(or G.H. of and I.J. of jointly)
25 (or G.H. of and I.J. of jointly
and severally) to be my attorney(s) in substitution of C.D. (or C.D.
and/or E.F.) on (or during) the occurrence of the following events
or circumstances --
30
".
page 10
Guardianship and Administration Amendment Bill 1999
s. 21
(2) Schedule 3 is amended in Form 2 as follows:
(a) by deleting "the donee(s) of the power of attorney
created by" and inserting instead --
" attorney under paragraph 1 or 1a of ";
5 (b) by deleting from "Signed" to the end of the Form and
inserting instead --
"
Signed:
(Attorney appointed under paragraph 1
of the Enduring Power of Attorney)
or
(Attorney appointed under paragraph 1a
of the Enduring Power of Attorney)
".
21. Transitional and validation
10 (1) A person appointed before the commencement day under an
enduring power of attorney (as defined in section 102) as the
donee of the power in substitution of another donee on or during
the occurrence of certain events or circumstances --
(a) is, from the commencement day, to be regarded as
15 having been appointed a substitute donee under
section 104B; and
(b) any act of that person under that power of attorney
before the commencement day is to be regarded as
having been as valid as if section 104B had been in
20 operation at that time and the person had been appointed
a substitute donee under it.
page 11
Guardianship and Administration Amendment Bill 1999
s. 21
(2) Nothing in subsection (1) affects any decision of --
(a) the Board under section 109; or
(b) a court or other tribunal,
and to the extent that subsection (1) conflicts or is inconsistent
5 with such a decision, that decision prevails.
(3) In subsection (1) --
"commencement day" means the day on which this Act comes
into operation;
"section" means a section of the Guardianship and
10 Administration Act 1990.
page 12
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