Guardianship Regulation 2016

This Regulation is the Guardianship Regulation 2016.

This Regulation commences on 1 September 2016 and is required to be published on the NSW legislation website.

Note.

This Regulation replaces the Guardianship Regulation 2010 which is repealed on 1 September 2016 by section 10 (2) of the Subordinate Legislation Act 1989.

In this Regulation:

restricted substance means a substance that is specified in Schedule Four of the Poisons List under the Poisons and Therapeutic Goods Act 1966.

the Act means the Guardianship Act 1987.

Note.

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

In this Regulation, a reference to a Form is a reference to a Form set out in Schedule 1.

Notes included in this Regulation (other than in Schedule 1) do not form part of this Regulation.

For the purposes of paragraph (a) (iv) of the definition of eligible witness in section 5 of the Act, the following persons are prescribed:

a foreign lawyer within the meaning of the Legal Profession Uniform Law (NSW),

a person:

who is a member of staff of the NSW Trustee and Guardian or is employed in Service NSW, and

who has completed an approved course of study, and

who has been approved by the Chief Executive Officer of the NSW Trustee and Guardian for the purposes of this paragraph.

For the purposes of this clause:

approved course of study means a course of study approved by the Minister by order published in the Gazette.

For the purposes of section 6C (1) (a) of the Act, Form 1 is the prescribed form for an instrument appointing a person as an enduring guardian.

For the purposes of section 6H (2) (b) of the Act, Form 2 is the prescribed form for an instrument revoking the appointment of a person as an enduring guardian.

For the purposes of section 6HB (2) (a) of the Act, Form 3 is the prescribed form for a written notice of resignation of an appointment as an enduring guardian.

For the purposes of the definition of interstate enduring guardian in section 6O (5) of the Act, the following instruments are prescribed:

an enduring power of attorney made under the Powers of Attorney Act 2006 of the Australian Capital Territory,

an advance personal plan made under Part 2 of the Advance Personal Planning Act of the Northern Territory,

an enduring power of attorney made under Part III of the Powers of Attorney Act of the Northern Territory,

an enduring power of attorney or an advance health directive made under Chapter 3 of the Powers of Attorney Act 1998 of Queensland,

an advance care directive made under Part 3 of the Advance Care Directives Act 2013 of South Australia,

an instrument of appointment of an enduring guardian made under Part 5 of the Guardianship and Administration Act 1995 of Tasmania,

an enduring power of attorney made under Part 3 of the Powers of Attorney Act 2014 of Victoria,

an enduring power of attorney (medical treatment) made under Part 2 of the Medical Treatment Act 1988 of Victoria,

an instrument of appointment of an enduring guardian made under Part 9A of the Guardianship and Administration Act 1990 of Western Australia,

an instrument of a similar nature to an instrument specified in paragraphs (a)–(i) that was made before the provisions in the relevant paragraph came into force and that is taken to be made under those provisions, or otherwise remains in force, by virtue of a savings or transitional provision made in relation to those provisions.

For the purposes of paragraph (c) of the definition of special treatment in section 33 (1) of the Act, the following medical treatment is declared to be special treatment:

any treatment that is carried out for the purpose of terminating pregnancy,

any treatment in the nature of a vasectomy or tubal occlusion,

any treatment that involves the use of an aversive stimulus, whether mechanical, chemical, physical or otherwise.

For the purposes of the definition of major treatment in section 33 (1) of the Act, the following medical treatment (not including any special treatment) is declared to be major treatment:

any treatment that involves the administration of a long-acting injectable hormonal substance for the purpose of contraception or menstrual regulation,

Note.

An example of such a substance is medroxyprogesterone acetate, in suspension, commonly known as Depo-Provera.

any treatment that involves the administration of a drug of addiction,

any treatment that involves the administration of a general anaesthetic or other sedation, but not treatment involving:

sedation used to facilitate the management of fractured or dislocated limbs, or

sedation used to facilitate the insertion of an endoscope into a patient’s body for diagnostic purposes unless the endoscope is inserted through a breach or incision in the skin or a mucous membrane,

any treatment used for the purpose of eliminating menstruation,

any treatment that involves the administration of a restricted substance for the purpose of affecting the central nervous system, but not a treatment:

involving a substance that is intended to be used for analgesic, antipyretic, antiparkinsonian, anticonvulsant, antiemetic, antinauseant or antihistaminic purposes, or

that is to be given only once, or

that is a PRN treatment (that is, given when required, according to the patient’s needs) that may be given not more than 3 times a month, or

given for sedation in minor medical procedures,

any treatment that involves a substantial risk to the patient (that is, a risk that amounts to more than a mere possibility) of:

death, or

brain damage, or

paralysis, or

permanent loss of function of any organ or limb, or

permanent and disfiguring scarring, or

exacerbation of the condition being treated, or

an unusually prolonged period of recovery, or

a detrimental change of personality, or

a high level of pain or stress,

any treatment involving testing for the human immuno-deficiency virus (HIV).

In this clause, drug of addiction means a substance that is specified in Schedule Eight of the Poisons List under the Poisons and Therapeutic Goods Act 1966.

For the purposes of the definition of major treatment in section 33 (1) of the Act, the following dental treatment is declared to be major treatment:

any treatment involving the administration of a general anaesthetic or simple sedation,

any treatment intended, or likely, to result in the removal of all teeth,

any treatment likely to result in the patient’s ability to chew food being significantly impaired for an indefinite or prolonged period.

In this clause, simple sedation means a technique in which the use of a drug or drugs produces a state of depression of the central nervous system enabling treatment to be carried out, and in which:

verbal contact with the patient is maintained throughout the period of sedation, and

the technique used has a margin of safety wide enough to render unintended loss of consciousness unlikely.

For the purposes of section 40 (4) (a) of the Act, a request for consent to the carrying out of minor medical or dental treatment is to be made in writing. However, the request may be made orally if:

it is not practicable to make the request in writing, or

the person whose consent is sought does not require it to be made in writing.

For the purposes of section 40 (4) (a) of the Act, a request for consent to the carrying out of major medical or dental treatment is to be made in writing. However, the request may be made orally if it is not practicable to make the request in writing because of the need to provide the treatment quickly.

A person who requests a consent referred to in this clause must give written confirmation of the request to the person whose consent is sought if the request was made orally and:

the consent relates to the carrying out of major treatment, or

the person whose consent is sought requires written confirmation.