Western Australian Consolidated Acts Western Australian Consolidated Acts1 This is a compilation of the Guardianship and
Administration Act 1990 and includes the amendments made by the other
written laws referred to in the following table 1a. The table
also contains information about any reprint.
|
Short title |
Number and year |
Assent |
Commencement |
|---|---|---|---|
|
24 of 1990 |
7 Sep 1990 |
s. 1 and 2: 7 Sep
1990; |
|
|
Guardianship and Administration Amendment
Act 1992 |
16 of 1992 |
17 Jun 1992 |
17 Jun 1992 (see s. 2) |
|
Acts Amendment (Public Sector Management)
Act 1994 s. 3(2) |
32 of 1994 |
29 Jun 1994 |
1 Oct 1994 (see s. 2 and Gazette
30 Sep 1994 p. 4948) |
|
Guardianship and Administration Amendment
Act 1996 |
7 of 1996 |
24 May 1996 |
s. 1 and 2:
24 May 1996; |
|
Mental Health (Consequential Provisions)
Act 1996 Pt. 8 |
69 of 1996 |
13 Nov 1996 |
13 Nov 1997 (see s. 2) |
|
Reprint of the Guardianship and Administration
Act 1990 as at 21 Apr 1997
|
|||
|
Acts Amendment and Repeal (Family Court)
Act 1997 s. 32 |
41 of 1997 |
9 Dec 1997 |
26 Sep 1998 (see s. 2 and Gazette
25 Sep 1998 p. 5295) |
|
Statutes (Repeals and Minor Amendments) Act 1997
s. 67 |
57 of 1997 |
15 Dec 1997 |
15 Dec 1997 (see s. 2(1)) |
|
Guardianship and Administration Amendment
Act 1998 |
8 of 1998 |
30 Apr 1998 |
30 Apr 1998 (see s. 2) |
|
Guardianship and Administration Amendment
Act 2000 3 |
70 of 2000 |
4 Dec 2000 |
4 Dec 2000 (see s. 2) |
|
Acts Amendment (Lesbian and Gay Law Reform) Act 2002
Pt. 10 |
3 of 2002 |
17 Apr 2002 |
21 Sep 2002 (see s. 2 and Gazette
20 Sep 2002 p. 4693) |
|
Reprint of the Guardianship and Administration
Act 1990 as at 22 Nov 2002
|
|||
|
Sentencing Legislation Amendment and Repeal Act 2003
s. 70 |
50 of 2003 |
9 Jul 2003 |
15 May 2004 (see s. 2 and Gazette
14 May 2004 p. 1445) |
|
Acts Amendment and Repeal (Courts and Legal Practice)
Act 2003 s. 40 |
65 of 2003 |
4 Dec 2003 |
1 Jan 2004 (see s. 2 and Gazette
30 Dec 2003 p. 5722) |
|
Criminal Code Amendment Act 2004
s. 58 |
4 of 2004 |
23 Apr 2004 |
21 May 2004 (see s. 2) |
|
34 of 2004 |
20 Oct 2004 |
1 Mar 2006 (see s. 2 and Gazette
14 Feb 2006 p. 695) |
|
|
Acts Amendment (Court of Appeal) Act 2004
s. 37 (Sch. 1 cl. 7) 4 |
45 of 2004 (as amended by No. 2 of 2008
s. 75(3)) |
9 Nov 2004 |
Sch. 1 cl. 7 (the amendments to s. 18(1) and
19(b)): |
|
Courts Legislation Amendment and Repeal Act 2004
s. 141 |
59 of 2004 |
23 Nov 2004 |
1 May 2005 (see s. 2 and Gazette
31 Dec 2004 p. 7128) |
|
State Administrative Tribunal (Conferral of Jurisdiction)
Amendment and Repeal Act 2004 Pt. 2 Div. 56
Subdiv. 1 5, 6 |
55 of 2004 |
24 Nov 2004 |
24 Jan 2005 (see s. 2 and Gazette
31 Dec 2004 p. 7130) |
|
Criminal Procedure and Appeals (Consequential and Other
Provisions) Act 2004 s. 82 |
84 of 2004 |
16 Dec 2004 |
2 May 2005 (see s. 2 and Gazette
31 Dec 2004 p. 7129 (correction in Gazette
7 Jan 2005 p. 53)) |
|
Reprint 3: The Guardianship and Administration
Act 1990 as at 1 Apr 2005
|
|||
|
Family Legislation Amendment Act 2006 Pt. 6
Div. 2 |
35 of 2006 |
4 Jul 2006 |
15 Jul 2006 (see s. 2 and Gazette
14 Jul 2006 p. 2559) |
|
Criminal Investigation (Consequential Provisions)
Act 2006 s. 73 |
59 of 2006 |
16 Nov 2006 |
1 Jul 2007 (see s. 2 and Gazette
22 Jun 2007 p. 2838) |
|
Wills Amendment Act 2007
s. 25 |
27 of 2007 |
26 Oct 2007 |
9 Feb 2008 (see s. 2 and Gazette
8 Feb 2008 p. 313) |
|
Acts Amendment (Justice) Act 2008
Pt. 12 |
5 of 2008 |
31 Mar 2008 |
30 Sep 2008 (see s. 2(d) and Gazette
11 Jul 2008 p. 3253) |
|
Legal Profession Act 2008
s. 667 |
21 of 2008 |
27 May 2008 |
1 Mar 2009 (see s. 2(b) and Gazette
27 Feb 2009 p. 511) |
|
Medical Practitioners Act 2008 Sch. 3 cl.
22 |
22 of 2008 |
27 May 2008 |
1 Dec 2008 (see s. 2 and Gazette
25 Nov 2008 p. 4989) |
|
Surrogacy Act 2008
Pt. 4 Div. 4 |
47 of 2008 |
10 Dec 2008 |
1 Mar 2009 (see s. 2(b) and Gazette
27 Feb 2009 p. 512) |
|
Reprint 4: The Guardianship and Administration
Act 1990 as at 6 Feb 2009 |
|||
|
Statutes (Repeals and Miscellaneous Amendments) Act
2009 s. 68 |
8 of 2009 |
21 May 2009 |
22 May 2009 (see s. 2(b)) |
|
Acts Amendment (Bankruptcy) Act 2009
s. 38 |
18 of 2009 |
16 Sep 2009 |
17 Sep 2009 (see s. 2(b)) |
1a On the date as at which this
compilation was prepared, provisions referred to in the following table had not
come into operation and were therefore not included in this compilation. For
the text of the provisions see the endnotes referred to in the table.
Provisions
that have not come into operation
|
Number and year |
Assent |
Commencement |
|
|---|---|---|---|
|
Acts Amendment (Consent to Medical Treatment)
Act 2008 Pt. 2 8 |
25 of 2008 |
19 Jun 2008 |
To be proclaimed (see s. 2) |
2 Repealed by the Mental Health (Consequential Provisions)
Act 1996.
3 The Guardianship and Administration Amendment Act 2000
s. 21 reads as follows:
“
21. Transitional and validation
(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 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 operation at that time and the person had been
appointed a substitute donee under it.
(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
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
Administration Act 1990.
”.
4 The Acts Amendment (Court of Appeal) Act 2004
Sch. 1 cl. 7 (to amend s. 37A and the heading to Part 3
Div. 4) was deleted by the Criminal Law and Evidence Amendment
Act 2008 s. 75(3).
5 The State Administrative Tribunal (Conferral of
Jurisdiction) Amendment and Repeal Act 2004 Pt. 5, the State
Administrative Tribunal Act 2004 s. 167 and 169, and the State
Administrative Tribunal Regulations 2004 r. 28 and 42 deal with
certain transitional issues some of which may be relevant for this
Act.
6 The State Administrative Tribunal Regulations 2004
r. 52 reads as follows:
“
52. Guardianship and Administration Act 1990
(1) In this regulation —
commencement day means the day on which the State
Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal
Act 2004 Part 2 Division 56 comes into operation;
the GA Act means the Guardianship and Administration
Act 1990.
(2) Unless the context otherwise requires, where in —
(a) an arrangement entered into under the GA Act section 44A(1);
or
(b) a notice of an arrangement published in the Gazette under the
GA Act section 44A(2),
there is a reference to the Guardianship and Administration Board, on or
after the commencement day that reference is to be read and construed as a
reference to the State Administrative Tribunal.
(3) If immediately before the commencement day —
(a) the Guardianship and Administration Board is required under the GA Act
section 80(3) to examine any accounts lodged under section 80(1) or
delivered under section 80(2) of the GA Act; and
(b) the Board has not made a decision under the GA Act
section 80(3),
on the commencement day, the obligation to examine those accounts is
transferred to the Public Trustee and the Public Trustee is to examine the
accounts in accordance with the GA Act section 80.
(4) If immediately before the commencement day the Guardianship and
Administration Board is carrying out, but has not completed, a review under the
GA Act section 85 or 86, on or after the commencement day the review
is to be carried out and completed by the State Administrative Tribunal as if
the application for the review had been made to it under the relevant
section.
(5) If —
(a) before the commencement day a report is made to the Guardianship and
Administration Board under the GA Act section 107(1)(d); and
(b) the Board has not made an order under the GA Act section 109(3)
in relation to that report,
on or after the commencement day, the State Administrative Tribunal may
make an order under the GA Act section 109(3) as if the report had been
made to it under the GA Act section 107(1)(d).
(6) If before the commencement day the Guardianship and Administration
Board has appointed an auditor under the GA Act section 109(1)(b) and
a copy of the auditor’s report has not been furnished to the Board under
that provision, on and after the commencement day, the auditor is to be taken to
have been appointed by the State Administrative Tribunal and is to furnish the
report to the Tribunal and the applicant for the order.
(7) If immediately before the commencement day a notice is required to be
given under the GA Act section 111(4) but that notice has not been given
before the commencement day, on or after the commencement day that notice is to
be given by the executive officer of the State Administrative
Tribunal.
(8) If immediately before the commencement day the Guardianship and
Administration Board is dealing with, but has not completed the consideration
of, an application under the GA Act section 111(5) or 112(4), on
or after the commencement day the application is to be transferred to the State
Administrative Tribunal and the Tribunal is to deal with the application as if
the application had been made to it under the relevant subsection.
(9) If —
(a) an enduring power of attorney created by instrument in the form or
substantially in the form of the GA Act Schedule 3 Form 1;
or
(b) a statement of acceptance in the form, or substantially in the form,
of the GA Act Schedule 3 Form 2,
in effect immediately before the commencement day contains a reference to
the Guardianship and Administration Board, on and after the commencement day
that reference is to be taken to be a reference to the State Administrative
Tribunal.
”.
7 Footnote no longer applicable.
8 On the date as at which this compilation was prepared, the
Acts Amendment (Consent to Medical Treatment) Act 2008 Pt. 2 had not
come into operation. It reads as follows:
“
Part 2 — Guardianship
and Administration Act 1990 amended
The amendments in this Part are to the Guardianship and Administration
Act 1990.
The long title is amended by deleting “to make provision for a
power of attorney to operate after the donor has ceased to have legal
capacity,” and inserting instead —
“
to provide for enduring powers of attorney, enduring
powers of guardianship and advance health directives,
”.
5. Section 3
amended
(1) Section 3(1) is amended by deleting the definition of
“treatment”.
(2) Section 3(1) is amended by inserting in the appropriate
alphabetical positions —
“
advance health directive means —
(a) an advance health directive made under Part 9B; or
(b) an instrument recognised as such under section 110ZA;
enduring guardian means —
(a) the person who is the enduring guardian under an enduring power of
guardianship; or
(b) the persons who are the joint enduring guardians under an enduring
power of guardianship,
and includes a substitute enduring guardian while he or she is the
enduring guardian or a joint enduring guardian under an enduring power of
guardianship;
enduring power of guardianship means —
(a) an enduring power of guardianship made under Part 9A;
or
(b) an instrument recognised as such under section 110O;
life sustaining measure means a medical, surgical or nursing
procedure directed at supplanting or maintaining a vital bodily function that is
temporarily or permanently incapable of independent operation, and includes
assisted ventilation and cardiopulmonary resuscitation;
palliative care means a medical, surgical or nursing
procedure directed at relieving a person’s pain, discomfort or distress,
but does not include a life sustaining measure;
substitute enduring guardian means a person appointed as a
substitute enduring guardian under section 110C(1);
treatment means —
(a) medical or surgical treatment, including —
(i) a life sustaining measure; and
(ii) palliative care;
or
(b) dental treatment; or
(c) other health care;
treatment decision, in relation to a person, means a
decision to consent or refuse consent to the commencement or continuation of any
treatment of the person.
”.
6. Section 45
amended
(1) Section 45(2) is amended as follows:
(a) by deleting “may —” and inserting
instead —
“ may do any of the following —
”;
(b) by deleting paragraph (d) and inserting instead —
“
(d) subject to subsection (4), make treatment decisions for the
represented person;
”;
(c) after paragraph (g) by deleting “and”.
(2) Section 45(3) is amended as follows:
(a) by deleting “may not —” and inserting
instead —
“
cannot do any of the following on behalf of the represented
person —
(b) after paragraph (c) by deleting “or”;
(c) after paragraph (d) by deleting the comma and inserting a full
stop instead;
(d) by deleting “on behalf of a represented person;
or”;
(e) by deleting paragraph (e).
(3) After section 45(3) the following subsection is
inserted —
“
(4) A plenary guardian cannot consent to the sterilisation of the
represented person, except in accordance with
Division 3 9.
”.
7. Section 50
amended
Section 50 is amended as follows:
(a) by deleting “consent given,” and inserting
instead —
“ consent given or refused, ”;
(b) by inserting after “given,” in the second place where it
occurs —
“ refused, ”.
After section 55 the following section is inserted in Part 5
Division 2 —
“
55A. Priority of
guardianship order
(1) To the extent a guardianship order relates to the making of a
treatment decision for the represented person, the priority to be given to the
order is determined in accordance with section 110ZJ.
(2) To the extent a guardianship order relates to the performance of any
other function in relation to the represented person, the priority to be given
to the order is determined in accordance with section 119.
”.
9. Section 104
amended
(1) At the beginning of section 104 the following subsection is
inserted —
“
(1a) A person who has reached 18 years of age and has full legal
capacity may create an enduring power of attorney.
”.
(2) Section 104(2) is amended by deleting paragraph (a) and
“and” after it and inserting instead —
“
(a) there are 2 attesting witnesses to the
instrument —
(i) both of whom are authorised by law to take declarations; or
(ii) of whom —
(I) one is authorised by law to take declarations; and
(II) the other has the qualifications specified in
subsection (3);
and
”.
(3) After section 104(2) the following subsection is
inserted —
“
(3) A witness referred to in subsection (2)(a)(ii)(II) must be a
person —
(a) who has reached 18 years of age; and
(b) who is not a person appointed to be a donee or substitute donee of the
power.
After section 104B the following section is inserted —
“
104C. Eligibility
for appointment as donee or substitute donee
A person is eligible to be appointed as a donee or substitute donee of an
enduring power of attorney if the person has reached 18 years of age and
has full legal capacity.
”.
After section 110 the following Parts are inserted —
Part 9A — Enduring
powers of guardianship
Division 1 — Preliminary
matters
In this Part —
appointor, in relation to an enduring power of guardianship,
means the maker of the power.
Division 2 — Making
of enduring power of guardianship
110B. Appointing
enduring guardian
A person who has reached 18 years of age and has full legal capacity
may make an enduring power of guardianship appointing —
(a) a person as the enduring guardian of the person; or
(b) 2 or more persons as the joint enduring guardians of the
person.
110C. Substitute
enduring guardians
(1) An appointor may, in the enduring power of guardianship, appoint one
or more persons to be substitute enduring guardians.
(2) A substitute enduring guardian becomes the enduring guardian or a
joint enduring guardian (as the case may be) in the circumstances specified in
the enduring power of guardianship.
110D. Who is
eligible to be appointed
A person is eligible to be appointed under section 110B or 110C(1)
if the person has reached 18 years of age and has full legal
capacity.
(1) An enduring power of guardianship is not valid unless —
(a) it is in the form or substantially in the form prescribed by the
regulations; and
(b) it is signed by the appointor or by another person in the presence of,
and at the direction of, the appointor; and
(c) the signature referred to in paragraph (b) is witnessed by 2
persons —
(i) both of whom are authorised by law to take declarations; or
(ii) of whom —
(I) one is authorised by law to take declarations; and
(II) the other has the qualifications specified in
subsection (2);
and
(d) it is signed by the witnesses referred to in paragraph (c) in the
presence of —
(i) the appointor; and
(ii) the person who signed it at the appointor’s direction (if
applicable); and
(iii) each other;
and
(e) it is signed by each person being appointed as an enduring guardian or
substitute enduring guardian (an appointee) to indicate the
appointee’s acceptance of the appointment; and
(f) the signature of the appointee is witnessed by
2 persons —
(i) both of whom are authorised by law to take declarations; or
(ii) of whom —
(I) one is authorised by law to take declarations; and
(II) the other has the qualifications specified in
subsection (2);
and
(g) it is signed by the witnesses referred to in paragraph (f) in the
presence of the appointee and each other.
(2) A witness referred to in subsection (1)(c)(ii)(II) or (f)(ii)(II)
must be a person —
(a) who has reached 18 years of age; and
(b) who is not —
(i) the appointor; or
(ii) the person who signed the enduring power of guardianship at the
appointor’s direction (if applicable); or
(iii) an appointee.
Division 3 — Operation
of enduring power of guardianship
110F. When
enduring guardian may act
An enduring power of guardianship has effect, subject to its terms, at
any time the appointor is unable to make reasonable judgments in respect of
matters relating to his or her person.
(1) Subject to this section, an enduring guardian has the same functions
under section 45(1) and (2), and is subject to the same limitations under
section 45(3) and (4), in relation to the appointor as a plenary guardian
has and is subject to in relation to a represented person.
(2) An enduring power of guardianship may limit the functions of the
enduring guardian to the functions specified in the power.
(3) An enduring power of guardianship may limit the circumstances in which
the enduring guardian may act to the circumstances specified in the
power.
(4) An enduring power of guardianship may include directions about how the
enduring guardian is to perform any of his or her functions.
110H. Certain
provisions apply in relation to enduring guardian and appointor
The following provisions apply (with the necessary changes) in relation
to an enduring guardian and appointor as if they were a guardian and represented
person respectively —
(a) sections 48 to 51;
(b) section 53(a);
(c) subject to the terms of the enduring power of guardianship,
section 54 as if it were not subject to section 85;
(d) Part 5 Division 3 other than section 57(2).
110I. Priority
of enduring power of guardianship
(1) To the extent an enduring power of guardianship relates to the making
of a treatment decision for the appointor, the priority to be given to the power
is determined in accordance with section 110ZJ.
(2) To the extent an enduring power of guardianship relates to the
performance of any other function in relation to the appointor, the priority to
be given to the power is determined in accordance with
section 119.
Division 4 — Jurisdiction
of State Administrative Tribunal
A person who, in the opinion of the State Administrative Tribunal, has a
proper interest in the matter may apply to the Tribunal for a decision under
this Division.
110K. Declaration
about validity of enduring power of guardianship
(1) The State Administrative Tribunal may declare that an enduring power
of guardianship is valid or invalid.
(2) A declaration made under subsection (1) has effect according to
its terms.
110L. Declaration
of incapacity of appointor
(1) The State Administrative Tribunal may declare that the appointor under
an enduring power of guardianship is unable to make reasonable judgments in
respect of matters relating to his or her person.
(2) A declaration made under subsection (1) has effect according to
its terms.
(3) The Tribunal may revoke a declaration made under
subsection (1).
110M. Directions
as to construction of terms etc.
The State Administrative Tribunal may give directions as to matters
connected with —
(a) the exercise of an enduring power of guardianship; or
(b) the construction of the terms of an enduring power of
guardianship.
110N. Revocation
or variation of enduring power of guardianship
(1) The State Administrative Tribunal may make an order —
(a) revoking an enduring power of guardianship; or
(b) revoking the appointment of one or some of the persons who are joint
enduring guardians under an enduring power of guardianship if the person or each
of the persons —
(i) wishes to be discharged; or
(ii) has been guilty of such neglect or misconduct or of such default as,
in the opinion of the Tribunal, renders the person unfit to continue as an
enduring guardian; or
(iii) appears to the Tribunal to be incapable by reason of mental or
physical incapacity of carrying out the person’s duties;
or
(c) revoking or varying any of the terms of an enduring power of
guardianship.
(2) If the Tribunal makes an order under subsection (1)(b), subject
to the terms of the enduring power of guardianship, the remaining enduring
guardian or guardians may act under the power.
(3) An order made under subsection (1) may be expressed to come into
effect at a time earlier than immediately after it is made.
110O. Recognition
of instrument created in another jurisdiction
(1) The State Administrative Tribunal may make an order recognising an
instrument created under a law of another jurisdiction as an enduring power of
guardianship under this Part if satisfied the instrument corresponds
sufficiently, in form and effect, to an enduring power of guardianship made
under this Part.
(2) The Tribunal may revoke an order made under
subsection (1).
Part 9B — Advance
health directives
Division 1 — Making
of advance health directive
110P. Making
advance health directive
A person who has reached 18 years of age and has full legal capacity
may make an advance health directive containing treatment decisions in respect
of the person’s future treatment.
(1) An advance health directive is not valid unless —
(a) it is in the form or substantially in the form prescribed by the
regulations; and
(b) the maker is encouraged to seek legal or medical advice; and
(c) it is signed by its maker or by another person in the presence of, and
at the direction of, its maker; and
(d) the signature referred to in paragraph (c) is witnessed by 2
persons —
(i) both of whom are authorised by law to take declarations; or
(ii) of whom —
(I) one is authorised by law to take declarations; and
(II) the other has the qualifications specified in
subsection (3);
and
(e) it is signed by the witnesses in the presence of —
(i) its maker; and
(ii) the person who signed it at its maker’s direction (if
applicable); and
(iii) each other.
(2) Despite subsection (1)(b), the validity of an advance health
directive is not affected by a failure to comply with
subsection (1)(b).
(3) A witness referred to in subsection (1)(d)(ii)(II) must be a
person —
(a) who has reached 18 years of age; and
(b) who is not —
(i) the maker of the advance health directive; or
(ii) the person who signed the directive at its maker’s direction
(if applicable).
110QA. Maker may
indicate in directive whether advice obtained
The form prescribed by the regulations for section 110Q(1)(a) must
include provision for the maker, if the maker wishes —
(a) to indicate whether the maker obtained legal or medical advice about
the making of the directive; and
(b) if so, to identify from whom the maker obtained the advice.
110R. Requirements
in relation to treatment decision in advance health directive
(1) A treatment decision in an advance health directive is invalid if the
treatment decision —
(a) is not made voluntarily; or
(b) is made as a result of inducement or coercion.
(2) A treatment decision in an advance health directive is invalid if, at
the time the directive is made, its maker does not understand —
(a) the nature of the treatment decision; or
(b) the consequences of making the treatment decision.
110RA. Registration
of advance health directive
An advance health directive may be registered in the register referred to
in section 110ZAA.
Division 2 — Operation
of advance health directive
(1) A treatment decision in an advance health directive operates in
respect of the treatment to which it applies —
(a) at any time the maker of the directive is unable to make reasonable
judgments in respect of that treatment; and
(b) as if —
(i) the treatment decision had been made by the maker at that time;
and
(ii) the maker were of full legal capacity.
(2) Subject to subsection (3), a treatment decision in an advance
health directive operates only in the circumstances specified in the
directive.
(3) Subject to subsection (4), a treatment decision in an advance
health directive does not operate if circumstances exist or have arisen
that —
(a) the maker of that directive would not have reasonably anticipated at
the time of making the directive; and
(b) would have caused a reasonable person in the maker’s position to
have changed his or her mind about the treatment decision.
(4) In determining whether or not subsection (3) applies in relation
to a treatment decision that is in an advance health directive, the matters that
must be taken into account include the following —
(a) the maker’s age at the time the directive was made and at the
time the treatment decision would otherwise operate;
(b) the period that has elapsed between those times;
(c) whether the maker reviewed the treatment decision at any time during
that period and, if so, the period that has elapsed between the time of the last
such review and the time at which the treatment decision would otherwise
operate;
(d) the nature of the condition for which the maker needs treatment, the
nature of that treatment and the consequences of providing and not providing
that treatment.
(5) For the purpose of determining whether or not subsection (3)
applies in relation to a treatment decision that is in an advance health
directive, subject to the terms of the directive, any of the following persons
may be consulted —
(a) if the maker has an enduring guardian — the enduring
guardian;
(b) if the maker has a guardian — the guardian;
(c) a person who has a relationship with the maker described in
section 110ZD(3)(a) to (d);
(d) any other person considered appropriate in the
circumstances.
(6) Subject to section 110T, a treatment decision in an advance
health directive is taken to have been revoked if the maker of the directive has
changed his or her mind about the treatment decision since making the
directive.
110T. Effect of
subsequent enduring power of guardianship
For the purposes of this Act —
(a) a treatment decision in an advance health directive is not taken to
have been revoked; and
(b) the maker of the directive is not taken to have changed his or her
mind about the treatment decision since making the directive,
merely because the maker subsequently makes an enduring power of
guardianship (whether about the same matter as the treatment decision or a
different matter).
110U. Priority
of treatment decision in advance health directive
The priority to be given to a treatment decision in an advance health
directive is determined in accordance with section 110ZJ.
Division 3 — Jurisdiction
of State Administrative Tribunal
A person who, in the opinion of the State Administrative Tribunal, has a
proper interest in the matter may apply to the Tribunal for a decision under
this Division.
110W. Declaration
about validity of directive or treatment decision
(1) The State Administrative Tribunal may declare that —
(a) an advance health directive; or
(b) a treatment decision in an advance health directive,
is valid or invalid.
(2) A declaration made under subsection (1) has effect according to
its terms.
110X. Declaration
of incapacity of maker
(1) The State Administrative Tribunal may declare that the maker of an
advance health directive is unable to make reasonable judgments in respect of
the treatment to which a treatment decision in the directive applies.
(2) A declaration made under subsection (1) has effect according to
its terms.
(3) The Tribunal may revoke a declaration made under
subsection (1).
110Y. Directions
as to construction of terms etc.
The State Administrative Tribunal may give directions as to matters
connected with —
(a) the giving of effect to a treatment decision in an advance health
directive; or
(b) the construction of the terms of an advance health
directive.
110Z. Declaration
that treatment decision has been revoked
(1) The State Administrative Tribunal may declare that a treatment
decision in an advance health directive is taken to have been revoked under
section 110S(6).
(2) A declaration made under subsection (1) has effect according to
its terms.
(3) The Tribunal may revoke a declaration made under
subsection (1).
110ZA. Recognition
of instrument created in another jurisdiction
(1) The State Administrative Tribunal may make an order recognising an
instrument created under a law of another jurisdiction as an advance health
directive made under this Part if satisfied the instrument corresponds
sufficiently, in form and effect, to an advance health directive made under this
Part.
(2) The Tribunal may revoke an order made under
subsection (1).
Division 4 — Miscellaneous
matters
110ZAA. Register
of advance health directives
(1) A register of advance health directives must be established and
maintained.
(2) The regulations may provide for any matter that is necessary or
convenient for the registration of advance health directives, including the
following —
(a) who must establish and maintain the register;
(b) the form and manner in which the register must be established and
maintained;
(c) the contents of the register, including proof of the
contents;
(d) who may apply for registration;
(e) the procedure for registration, including the alteration and removal
of entries in the register;
(f) who may have access to or obtain information from the
register;
(g) the review by the State Administrative Tribunal of decisions allowing,
or refusing to allow, people to have access to or obtain information from the
register;
(h) the procedure for accessing or obtaining information from the
register.
(3) No fee or charge is payable in respect of any matter connected with
the register or registration.
110ZAB. Disclosure
of information obtained from register
(1) In this section —
register means the register referred to in
section 110ZAA.
(2) A person who has access to the register must not disclose any
information on the register unless the disclosure is authorised by
subsection (4).
Penalty: $5 000.
(3) A person who obtains any information from the register must not
disclose the information unless the disclosure is authorised by
subsection (4).
Penalty: $5 000.
(4) For subsections (2) and (3), a disclosure is authorised if it
is —
(a) authorised by, or made for the purposes of, this Act; or
(b) made with the consent of the maker of the advance health directive to
which the information relates; or
(c) made for a purpose, or in a circumstance, prescribed by the
regulations; or
(d) otherwise authorised or required by law.
110ZAC. Regulations
to facilitate national register
(1) In this section —
advance health directive means —
(a) an advance health directive made under this Part; or
(b) an instrument created under the law of another State or a Territory
that corresponds sufficiently, in form and effect, to an advance health
directive made under this Part, whether or not the instrument is recognised
under section 110ZA(1).
(2) The regulations may make provision to facilitate —
(a) the establishment of a national register of advance health directives;
and
(b) if a national register is established — the registration of
advance health directives on it.
This Part does not affect the common law relating to a person’s
entitlement to make treatment decisions in respect of the person’s future
treatment.
Part 9C — Persons
responsible for patients
Division 1 — Preliminary
matters
In this Part —
patient means a person who needs treatment.
Division 2 — Treatment
decisions by persons responsible for patients
110ZD. Circumstances
in which person responsible may make treatment decision
(1) If a patient is unable to make reasonable judgments in respect of any
treatment proposed to be provided to the patient, the person responsible for the
patient under subsection (2) may make a treatment decision in respect of
the treatment.
(2) The person responsible for the patient is the first in order of the
persons listed in subsection (3) who —
(a) is of full legal capacity; and
(b) is reasonably available; and
(c) is willing to make a treatment decision in respect of the
treatment.
(3) For subsection (2), the persons are the following —
(a) the patient’s spouse or de facto partner if that
person —
(i) has reached 18 years of age; and
(ii) is living with the patient;
(b) the patient’s nearest relative who maintains a close personal
relationship with the patient;
(c) the person who —
(i) has reached 18 years of age; and
(ii) is the primary provider of care and support (including emotional
support) to the patient, but is not remunerated for providing that care and
support;
(d) any other person who —
(i) has reached 18 years of age; and
(ii) maintains a close personal relationship with the patient.
(4) For subsection (3)(b), the patient’s nearest relative is
the first in order of priority of the following relatives of the patient who has
reached 18 years of age —
(a) the spouse or de facto partner;
(b) a child;
(c) a parent;
(d) a sibling.
(5) For subsection (3)(b) and (d)(ii), a person maintains a close
personal relationship with the patient only if the person —
(a) has frequent contact of a personal (as opposed to a business or
professional) nature with the patient; and
(b) takes a genuine interest in the patient’s welfare.
(6) For subsection (3)(c)(ii), a person is not remunerated for
providing care and support to the patient although the person receives a carer
payment or other benefit from the Commonwealth or a State or Territory for
providing home care for the patient.
(7) The person responsible for the patient cannot consent to the
sterilisation of the patient.
(8) When making a treatment decision for the patient, the person
responsible for the patient must act according to the person’s opinion of
the best interests of the patient.
(9) A treatment decision made by the person responsible for the patient
has effect as if —
(a) the treatment decision had been made by the patient; and
(b) the patient were of full legal capacity.
110ZE. Priority
of treatment decision of person responsible
The priority to be given to a treatment decision of a person responsible
for a patient under section 110ZD is determined in accordance with
section 110ZJ.
Division 3 — Jurisdiction
of State Administrative Tribunal
A person who, in the opinion of the State Administrative Tribunal, has a
proper interest in the matter may apply to the Tribunal for a decision under
this Division.
110ZG. Declaration
that person responsible may make treatment decision
(1) The State Administrative Tribunal may declare —
(a) that a patient is unable to make reasonable judgments in respect of
the treatment proposed to be provided to the patient; and
(b) that the person identified in the declaration is the person
responsible for the patient under section 110ZD.
(2) A declaration made under subsection (1) has effect according to
its terms.
(3) The Tribunal may revoke a declaration made under
subsection (1).
Part 9D — Treatment
decisions in relation to patients under legal incapacity
Division 1 — Preliminary
matters
110ZH. Terms
used in this Part
In this Part —
advance health directive includes a directive given by a
person under the common law containing treatment decisions in respect of the
person’s future treatment;
health professional has the meaning given to that term in
the Civil Liability Act 2002 section 5PA;
patient means a person who needs treatment;
urgent treatment means treatment urgently needed by a
patient —
(a) to save the patient’s life; or
(b) to prevent serious damage to the patient’s health; or
(c) to prevent the patient from suffering or continuing to suffer
significant pain or distress,
but does not include the sterilisation of the patient.
Division 2 — Provision
of treatment
110ZI. Urgent
treatment generally
(1) Subsection (2) applies if —
(a) a patient needs urgent treatment; and
(b) the patient is unable to make reasonable judgments in respect of the
treatment; and
(c) it is not practicable for the health professional who proposes to
provide the treatment to determine whether or not the patient has made an
advance health directive containing a treatment decision that is inconsistent
with providing the treatment; and
(d) it is not practicable for the health professional to obtain a
treatment decision in respect of the treatment from the patient’s guardian
or enduring guardian or the person responsible for the patient under
section 110ZD.
(2) The health professional may provide the treatment to the patient in
the absence of a treatment decision in relation to the patient.
110ZIA. Urgent
treatment after attempted suicide
(1) Subsection (2) applies if —
(a) a patient needs urgent treatment; and
(b) the patient is unable to make reasonable judgments in respect of the
treatment; and
(c) the health professional who proposes to provide the treatment
reasonably suspects that the patient has attempted to commit suicide and needs
the treatment as a consequence.
(2) The health professional may provide the treatment to the patient
despite —
(a) the patient having made an advance health directive containing a
treatment decision that is inconsistent with providing the treatment;
or
(b) the patient’s guardian or enduring guardian or the person
responsible for the patient under section 110ZD having made such a
treatment decision in relation to the patient.
110ZJ. Order of
priority of persons who may make treatment decision in relation to
patient
(1) Subject to sections 110ZI and 110ZIA, this section applies if a
patient is unable to make reasonable judgments in respect of any treatment
proposed to be provided to the patient.
(2) If the patient has made an advance health directive containing a
treatment decision in respect of the treatment, whether or not the treatment is
provided to the patient must be decided in accordance with the treatment
decision.
(3) If —
(a) subsection (2) does not apply; and
(b) the patient has an enduring guardian who —
(i) is authorised to make a treatment decision in respect of the
treatment; and
(ii) is reasonably available; and
(iii) is willing to make a treatment decision in respect of the
treatment,
whether or not the treatment is provided to the patient must be decided
by the enduring guardian.
(4) If —
(a) subsections (2) and (3) do not apply; and
(b) the patient has a guardian who —
(i) is authorised to make a treatment decision in respect of the
treatment; and
(ii) is reasonably available; and
(iii) is willing to make a treatment decision in respect of the
treatment,
whether or not the treatment is provided to the patient must be decided
by the guardian.
(5) If —
(a) subsections (2) to (4) do not apply; and
(b) there is a person responsible for the patient under
section 110ZD,
whether or not the treatment is provided to the patient must be decided
by the person responsible.
110ZK. Reliance
by health professional on treatment decision
(1) In this section —
take treatment action means —
(a) to commence or continue any treatment of a patient; or
(b) to not commence or to discontinue any treatment of a
patient.
(2) If a health professional —
(a) takes treatment action —
(i) reasonably believing that the patient is unable to make reasonable
judgments in respect of the treatment action; and
(ii) relying in good faith on what is purportedly a treatment
decision —
(I) in an advance health directive made by the patient; or
(II) made by the patient’s guardian or enduring guardian or the
person responsible for the patient under section 110ZD;
or
(b) takes treatment action —
(i) in circumstances where it is reasonable for the health professional to
rely on some other health professional having ascertained whether the treatment
action is in accordance with a treatment decision; and
(ii) reasonably assuming that some other health professional has
ascertained that the treatment action is in accordance with a treatment
decision,
the health professional is taken for all purposes to take the treatment
action in accordance with a treatment decision that has effect as
if —
(c) it had been made by the patient; and
(d) the patient were of full legal capacity.
(3) For subsection (2)(a)(ii), a health professional is taken to have
relied in good faith on what was purportedly a treatment decision if, after
considering whether or not to rely on it, the health professional acted honestly
in relying on it.
(4) For the purpose of determining under subsection (2)(b)(ii)
whether the health professional’s assumption was reasonable, the following
matters must be taken into account —
(a) whether the health professional sighted any written evidence that some
other health professional had ascertained that the treatment action was in
accordance with the treatment decision;
(b) anything else relevant to the determination.
110ZL. Validity
of certain treatment decisions
If a health professional —
(a) commences or continues palliative care in relation to a patient;
or
(b) does not commence or discontinues any treatment of a
patient,
in accordance with a treatment decision that is —
(c) in an advance health directive made by the patient; or
(d) made by the patient’s guardian or enduring guardian or the
person responsible for the patient under section 110ZD,
the health professional is taken for all purposes to have done so in
accordance with a valid treatment decision, even if an effect of doing so is to
hasten the death of the patient.
Division 3 — Jurisdiction
of State Administrative Tribunal
A person who, in the opinion of the State Administrative Tribunal, has a
proper interest in the matter may apply to the Tribunal for a decision under
this Division.
110ZN. Declaration
as to who may make treatment decision
(1) The State Administrative Tribunal may declare whether
section 110ZJ(2), (3), (4) or (5) applies in respect of any treatment
proposed to be provided to a patient.
(2) A declaration made under subsection (1) has effect according to
its terms.
(3) The Tribunal may revoke a declaration made under
subsection (1).
”.
12. Section 113
amended
After section 113(1) the following subsection is
inserted —
“
(1a) Subsection (1) does not apply to information obtained from the
register referred to in section 110ZAA, and section 110ZAB applies to
that information instead.
”.
13. Section 119
replaced
Section 119 is repealed and the following section is inserted
instead —
“
119. Order of
priority of enduring guardian and guardian for matters other than treatment
decisions
(1) This section applies if a person is unable to make reasonable
judgments in respect of a matter relating to his or her person other than
treatment proposed to be provided to the person.
(2) If the person has an enduring guardian who —
(a) is authorised to make a decision in respect of the matter;
and
(b) is reasonably available; and
(c) is willing to make a decision in respect of the matter,
a decision in respect of the matter must be made by the enduring
guardian.
(3) If —
(a) subsection (2) does not apply; and
(b) the person has a guardian who —
(i) is authorised to make a decision in respect of the matter;
and
(ii) is reasonably available; and
(iii) is willing to make a decision in respect of the matter,
a decision in respect of the matter must be made by the
guardian.
”.
14. Review
of the Guardianship and Administration Act 1990
(1) The Minister administering the Guardianship and Administration
Act 1990 is to carry out a review of the operation and effectiveness of
the provisions of the Guardianship and Administration Act 1990 and
the relevant sections of The Criminal Code as soon as practicable after
the expiration of 3 years from the commencement of this Act.
(2) The Minister is to prepare a report based on the review made under
subsection (1) and cause the report to be laid before each House of
Parliament within 4 years after the commencement of this Act.
”.
9 The amendment to s. 45 in the Acts Amendment (Consent
to Medical Treatment) Act 2008 s. 6(3) would conflict with an
amendment in the Wills Amendment Act 2007 s. 25.
Defined
Terms
[This is a list of terms defined and
the provisions where they are defined. The list is not part of the
law.]
Defined
Term Provision(s)
act 114(4)
administration
order 3(1)
administrator 3(1)
application 3(1)
corporate
trustee 3(1)
Court 18(1)
Deputy President 3(1)
designated
country 67(5)
determination 3(1)
donee 102
enduring power of
attorney 102
executive officer 3(1)
foreign administrator 83B(4)
Full
Tribunal 3(1)
guardian 3(1)
guardianship order 3(1)
legal
practitioner 3(1)
member 3(1)
mental disability 3(1)
nearest
relative 3(1)
party 3(1)
practitioner 119(4)
President 3(1)
procedure
for the sterilization 56
Public Advocate 3(1)
Public
Trustee 3(1)
relevant finding 67(5)
relevant
official 83C(4)
represented person 3(1), 56
treatment 3(1)
urgent
treatment 119(4)