Public Guardian Act 2014

This Act may be cited as the Public Guardian Act 2014.

This Act, other than sections 252, 254 and chapter 8, part 17, commences on 1 July 2014.

Sections 252 and 254 commence on assent.

Chapter 8, part 17 commences on the commencement of the Disability Services (Restrictive Practices) and Other Legislation Amendment Act 2014, section 26.

The dictionary in schedule 1 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.

The purpose of this Act is to establish the public guardian to promote and protect the rights and interests of—

adults with impaired capacity for a matter; and

relevant children and children staying at visitable sites.

The principles to be applied by persons performing functions or exercising powers under this Act for a matter in relation to an adult with impaired capacity for the matter are—

the general principles stated in the Guardianship Act, section 11B (the general principles); and

for a health matter—the general principles and the health care principles stated in the Guardianship Act, section 11C (the health care principles).

Persons performing functions or exercising powers under this Act for a matter in relation to an adult with impaired capacity must also have regard to the acknowledgements stated in the Guardianship Act, section 5 when performing the functions or exercising the powers.

The main principle to be applied by persons performing functions or exercising powers under this Act in relation to a relevant child or a child staying at a visitable site is that the best interests of the child are paramount.

The persons must also apply the following general principles when performing functions or exercising powers under this Act in relation to the child—

the child’s family has primary responsibility for the child’s upbringing and development and should be supported in that role;

the child is a valued member of society;

the child is—

to be treated in a way that respects the child’s dignity and privacy; and

to be cared for in a way that protects the child from harm, promotes the child’s wellbeing and allows the child to reach his or her full potential;

the child’s emotional, moral, social and intellectual development is important and must be taken into account;

the child is entitled to be heard, even if others may not agree with the views expressed by the child;

the child should be able to exercise his or her rights and participate in decisions that affect his or her life;

the child should be able to access available services necessary to meet his or her needs;

an ongoing relationship between the child and the child’s family is important for the child’s welfare and wellbeing and must be taken into account;

an ongoing connection with the child’s culture, traditions, language and community is important for the child’s welfare and wellbeing and must be taken into account.

This Act, to the extent it relates to an adult with impaired capacity for a matter, is to be read in conjunction with the Guardianship Act and the Powers of Attorney Act.

The Guardianship Act provides a scheme by which the tribunal may do the following—

appoint a guardian for an adult with impaired capacity for personal matters to make particular decisions and do particular other things for the adult in relation to the matters;

appoint an administrator for an adult with impaired capacity for financial matters to make particular decisions and do particular other things for the adult in relation to the matters;

consent to the withholding or withdrawal of a life-sustaining measure and to particular special health care.

The Guardianship Act also provides a scheme for health care for adults with impaired capacity for the matter concerned, including an order of priority for dealing with health care.

The Powers of Attorney Act 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—Powers of Attorney Act, schedule 2, section 2.

by advance health directive, an adult may make directions for the adult’s future 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 Guardianship Act, the Guardianship Act prevails.

There must be a Public Guardian.

The public guardian’s role in relation to adults who have impaired capacity for a matter is to protect their rights and interests.

The public guardian’s role in relation to relevant children and children staying at a visitable site is to protect their rights and interests.

The public guardian has the functions given to the public guardian by this Act or another Act.

The public guardian has the following functions (adult guardian functions) in relation to an adult with impaired capacity for a matter—

protecting the adult from neglect, exploitation or abuse;

providing a program called the community visitor program to protect the rights and interests of the adult if the adult resides at a visitable site;

investigating complaints and allegations about actions by—

an attorney; or

a guardian or administrator; or

another person acting or purporting to act under a power of attorney, advance health directive or order of the tribunal made under this Act or the Guardianship Act;

mediating and conciliating between attorneys, guardians or administrators or between attorneys, guardians or administrators and others, for example, health providers, if the public guardian considers this appropriate to resolve an issue;

acting as attorney—

for a personal matter under an enduring power of attorney; or

under an advance health directive; or

for a health matter if authorised as a statutory health attorney; or

if appointed by the court or the tribunal;

acting as guardian if appointed by the tribunal;

approving, under the Guardianship Act, chapter 5B, part 4 the use of a restrictive practice in relation to an adult to whom that chapter applies;

consenting to a forensic examination under section 38;

seeking help (including help from a government agency, or other institution, welfare organisation or provider of a service or facility) for, or making representations for, an adult with impaired capacity;

educating and advising persons about, and conducting research into, the operation of this Act, the Guardianship Act and the Powers of Attorney Act.

In this section—attorney means—

an attorney under a power of attorney; or

an attorney under an advance health directive or similar document under the law of another jurisdiction; or

a statutory health attorney.

power of attorney means—

a general power of attorney made under the Powers of Attorney Act; or

an enduring power of attorney; or

a power of attorney made otherwise than under the Powers of Attorney Act, whether before or after its commencement; or

a similar document under the law of another jurisdiction.