Guardianship and Administration Act 2000

This Act may be cited as the Guardianship and Administration Act 2000.

This Act commences on a day to be fixed by proclamation.

The dictionary in schedule 4 defines particular words used in this Act.

This Act binds all persons, including the State, and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States.

This Act acknowledges the following—

an adult’s right to make decisions is fundamental to the adult’s inherent dignity;

the right to make decisions includes the right to make decisions with which others may not agree;

the capacity of an adult to make decisions may differ according to—

the type of decision to be made, including, for example, the complexity of the decision to be made; and

the support available from members of the adult’s existing support network;

the right of an adult with impaired capacity to make decisions should be restricted, and interfered with, to the least possible extent;

an adult with impaired capacity has a right to adequate and appropriate support for decision-making.

This Act seeks to strike an appropriate balance between—

the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making; and

the adult’s right to adequate and appropriate support for decision-making.

This Act—

provides that an adult is presumed to have capacity for a matter; and

together with the Powers of Attorney Act 1998, provides a comprehensive scheme to facilitate the exercise of power for financial matters and personal matters by or for an adult who needs, or may need, another person to exercise power for the adult; and

states principles to be observed by anyone performing a function or exercising a power under the scheme; and

encourages involvement in decision-making of the members of the adult’s existing support network; and

confers jurisdiction on the tribunal to administer particular aspects of the scheme; and

recognises the public trustee is available as a possible administrator for an adult with impaired capacity; and

provides for the appointment of the public advocate for systemic advocacy.

This Act is to be read in conjunction with the Public Guardian Act 2014 which provides for the public guardian and the community visitor program (adult).

This Act is to be read in conjunction with the Powers of Attorney Act 1998 which provides a scheme by which—

by enduring power of attorney or advance health directive, an adult may authorise other persons to make particular decisions and do particular other things for the adult in relation to financial matters and personal matters at a time when the adult does not have capacity to do those things; andNote—Personal matters do not include special personal matters or special health matters—schedule 2, section 2.

by advance health directive, an adult may make directions for the adult’s future health care and special health care; and

a statutory health attorney is authorised to do particular things for an adult in particular circumstances in relation to health care.

If there is an inconsistency between this Act and the Powers of Attorney Act 1998, this Act prevails.

This Act and the Powers of Attorney Act 1998 authorise the exercise of power for a matter for an adult with impaired capacity for the matter.

Depending on the type of matter involved, this may be done—

on an informal basis by members of the adult’s existing support network; orNote—Although this Act deals primarily with formal substituted decision-making, a decision or proposed decision of an informal decision-maker may be ratified or approved under section 154.

on a formal basis by 1 of the following—

an attorney for personal matters appointed by the adult under an enduring power of attorney or advance health directive under the Powers of Attorney Act 1998;

an attorney for financial matters appointed by the adult under an enduring power of attorney under the Powers of Attorney Act 1998;

a statutory health attorney under the Powers of Attorney Act 1998;

a guardian appointed under this Act;Note—A guardian may only be appointed for personal matters.

an administrator appointed under this Act;Note—An administrator may only be appointed for financial matters.

the tribunal;

the court.

This Act categorises matters as follows—

• personal matter

• special personal matter

• special health matter

• financial matter.

Note—Schedule 2 contains definitions of types of matters.

If, in performing a function or exercising a power under this Act, the tribunal or the court is required to make a decision about an adult’s capacity for a matter, the tribunal or the court is to presume the adult has capacity for the matter until the contrary is proven.

If the tribunal or the court has appointed a guardian or an administrator for an adult for a matter, the guardian or administrator is not required to presume the adult has capacity for the matter.

If a declaration by the tribunal or the court that an adult has impaired capacity for a matter is in force, a person or other entity that performs a function or exercises a power under this Act is entitled to rely on the declaration to presume that the adult does not have capacity for the matter.