Regulation-making power
97 Regulation-making power
The Executive may make regulations for this Act.
Schedule 1 General principles for enduring powers of attorney (see s 44)
1.1 Access to family members and relatives
An individual’s wish and need to have access to family members and relatives, and for them to have access to the individual, must be recognised and taken into account.
An individual’s wish to involve family members and relatives in decisions affecting the individual’s life, property, health and finance must be recognised and taken into account.
1.2 Human worth and dignity
An individual with impaired decision-making capacity has an inherent right to respect for the individual’s human worth and dignity as an individual.
1.3 Role as a member of society
An individual has a right to be a valued member of society.
Because of this right, it is important to encourage and support the individual to perform social roles valued in society.
1.4 Participation in community life
It is important to encourage and support an individual to live a life in the general community, and to take part in activities enjoyed by the community.
1.5 Quality of life
An individual’s need and wish to have a reasonable quality of life must be recognised and taken into account.
1.6 Participation in decision making
An individual has a right to take part in decisions affecting the individual’s life to the greatest extent practicable.
Without limiting subsection (1), an individual also has a right to take part in decisions affecting the individual’s property and finance to the greatest extent practicable.
The right of the individual to make the individual’s own decisions must be preserved to the greatest extent practicable.
Examples of preserving individual’s right to make own decisions
1 The individual must be given any necessary support, and access to any necessary information, to allow the individual to take part in decisions affecting the individual’s life to the greatest extent practicable.
2 To the greatest extent practicable, the individual’s views and wishes must be sought and taken into account before exercising power in relation to the individual.
3 Power in relation to the individual must be exercised in the way that is least restrictive of the individual’s rights.
If an individual’s wishes or needs cannot be expressed by the individual, the person exercising power in relation to the individual must try to work out, as far as possible, from the individual’s past actions, what the individual’s wishes and needs would be if the individual could express them and take those wishes and needs into account.
However, a person exercising a function in relation to an individual must do so in a way consistent with the individual’s proper care and protection.
An individual’s views and wishes may be expressed orally, in writing or in another way, including, for example, by conduct.
1.7 Individual taken to be able to make decisions
An individual must not be treated as unable to take part in making a decision only because the individual makes unwise decisions.
1.8 Maintenance of existing supportive relationships
The importance of maintaining an individual’s existing supportive relationships must be taken into account.
1.9 Maintenance of environment and values
The importance of maintaining an individual’s cultural and linguistic environment, and set of values (including any religious beliefs) must be taken into account.
For an individual who is a member of an Aboriginal community or a Torres Strait Islander, this means the importance of maintaining the individual’s Aboriginal or Torres Strait Islander cultural and linguistic environment, and set of values (including Aboriginal tradition or Island custom) must be taken into account.
In this section:
Aboriginal tradition—
means the body of traditions, observances, customs and beliefs of Aboriginal people generally, or of a particular community or group of Aboriginal people; and
includes any traditions, observances, customs and beliefs mentioned in paragraph (a) that relate to particular people, areas, objects or relationships.
Island custom, known in the Torres Strait as Ailan Kastom—
means the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally, or of a particular community or group of Torres Strait Islanders; and
includes any traditions, observances, customs and beliefs mentioned in paragraph (a) that relate to particular people, areas, objects or relationships.
1.10 Confidentiality
An individual’s right to confidentiality of information about the individual must be respected.
1.11 Health care and medical research
An individual is entitled to have decisions about a health care matter or a medical research matter made by an attorney—
in the way least restrictive of the individual’s rights and freedom of action; and
only if the exercise of power—
is, in the attorney’s opinion, necessary and appropriate to maintain or promote the individual’s health and wellbeing; or
is, in all the circumstances, in the individual’s best interests.
An individual’s wishes in relation to a health care matter or a medical research matter, and any information provided by the individual’s health care provider, must be taken into account when an attorney decides what is appropriate in the exercise of power for a health care matter or a medical research matter.
Dictionary (see s 3)
The Legislation Act contains definitions and other provisions relevant to this Act.
For example, the Legislation Act, dict, pt 1, defines the following terms:
authorised deposit-taking institution
bankrupt or personally insolvent
child
civil partnership
civil union
corporation
domestic partner (see s 169 (1))
exercise
public trustee and guardian
Supreme Court.
affinity means affinity derived through marriage or any other domestic partnership.
approved, for medical research or low-risk research, for part 4.3A (Medical research matters)—see section 41A.
attorney—see section 6.
close friend, of a person, means someone who has a close personal relationship with the person and a personal interest in the person’s welfare.
day hospital means a facility where a person is admitted for surgical or medical treatment and discharged on the same day.
decision-making capacity—see section 9 (1).
disability care means care that is provided to a person with a disability in a residential facility in which the person is also provided with accommodation that includes—
appropriate staffing to meet the nursing and personal care needs of the person; and
meals and cleaning services; and
furnishings, furniture and equipment for the provision of the care and accommodation.
enduring power of attorney—see section 8.
general power of attorney—see section 7.
general principles—see section 44 and schedule 1.
health care, for a person who is a principal for a power of attorney—
includes withholding or withdrawal of a life-sustaining measure for the principal if starting or continuing the measure for the principal would be inconsistent with good medical practice; but
does not include—
first-aid treatment; or
a non-intrusive examination made for diagnostic purposes; or
the administration of a pharmaceutical drug if—
a prescription is not needed for the drug; and
the drug is normally self-administered; and
the administration is for a recommended purpose and at a recommended dosage level.
Example for par (b) a visual examination of a principal’s mouth, throat, nasal cavity, eyes or ears health care facility means a hospital, mental health facility, residential care home or residential disability care facility.
health care matter—see section 12.
health care provider, for a person who is a principal for a power of attorney, means a health professional who provides health care to the principal.
health professional means a person who provides health care in the practice of a profession or the ordinary course of business.
hospital means a public hospital, private hospital or day hospital.
impaired decision-making capacity—see section 9 (2).
interested person, for chapter 7 (Proceedings and rights)—see section 74.
invalidity, of a power of attorney or a power under a power of attorney, for chapter 6 (Protection and relief from liability)—see section 70.
know, of the invalidity of a power of attorney or a power under a power of attorney, for chapter 6 (Protection and relief from liability)—see section 70.
legal matter, for a person who is a principal for a power of attorney, means—
the use of legal services for the principal’s benefit; or
bringing or defending a proceeding, including settling a claim before or after a proceeding starts, on behalf of the principal.
Examples of use of legal services
1 use of legal services to get information about the principal’s legal rights
2 use of legal services to make a transaction
3 use of legal services to bring or defend a proceeding before a court, tribunal or other entity low-risk research, in relation to a person, for part 4.3A (Medical research matters)—see section 41A.
medical research, in relation to a person, for part 4.3A (Medical research matters)—see section 41A.
medical research matter, for a principal—see section 12A.
medical research power of attorney, for a principal, for part 4.3A (Medical research matters)—see section 41A.
mental health facility—see the Mental Health Act 2015, dictionary.
personal care matter—see section 11.
power of attorney—
means a general power of attorney or an enduring power of attorney; and
for chapter 6 (Protection and relief from liability)—see section 70.
principal, in relation to an attorney—see section 6.
property includes money and financial assets.
property matter—see section 10.
relative, of a person (the related person), means—
a person related by blood, affinity or adoption to the related person; or
a domestic partner.
For the meaning of domestic partner, see the Legislation Act, s 169.
residential care home means a residential care home under the Aged Care Act 2024 (Cwlth).
residential disability care facility—
means a residential facility that provides disability care to people with disabilities; but
does not include a residential care home.
special health care matter, for a principal—see section 37.
special personal matter, for a principal—see section 36.
This Act’s bill:Explanatory statementSecond reading speech
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