Guardianship and Administration Act 1995

Guardianship and Administration Act 1995

This Act may be cited as the Guardianship and Administration Act 1995.

This Act commences on a day to be proclaimed.

In this Act, unless the contrary intention appears – administration order means an order of the Tribunal appointing a person as administrator; administrator means any person appointed as administrator in an administration order; adult means a person who has attained the age of 18 years; advance care directive means an advance care directive under Part 5A that is in force; appointor, in relation to an enduring guardian, means the person who appointed the enduring guardian to be the person's enduring guardian; child means a person who has not attained the age of 18 years; close family member, in relation to a person, means any of the following persons who is in a close and continuing relationship with that person:a spouse of the person; a parent of the person; a person who has one or both parents in common with the person; a child of the person; a child of, or a parent of, the spouse of the person; a grandparent of the person; an aunt or uncle of the person; an adult of Aboriginal or Torres Strait Islander descent who is related to the person according to Aboriginal kinship rules or Torres Strait Islander kinship rules (as the case requires); any other carer or close friend who provides on-going personal support to the person, whether or not the other person is biologically related to the person; close friend, in relation to a person, means another person who has a close personal relationship with the person and a personal interest in the person’s welfare; contravene includes failure to comply with;Convention on the Rights of Persons with Disabilities means the United Nations Convention on the Rights of Persons with Disabilities, done at New York on 13 December 2006, as in force for Australia; decision-making ability– see section 11; determination includes decision and order; disability includes a long-term physical, mental, intellectual or sensory impairment which, in interaction with various barriers, may hinder a person’s full and effective participation in society on an equal basis with others; enduring guardian means a person appointed as an enduring guardian under Part 5; financial matter, in relation to a person, means any matter relating to the estate of the person including the income, assets, debts, liabilities, real property, personal property and financial affairs of the person, and includes any legal matter that relates to the property or finances of the person; function includes duty and power; government department means a Government department within the meaning of the State Service Act 2000; guardian means a person named as a guardian in a guardianship order or as an enduring guardian in an instrument of appointment as such; guardianship order means an order of the Tribunal appointing a person as guardian;Guardianship stream proceedings means proceedings of the Tribunal under an Act in relation to which the functions and powers of the Tribunal are allocated, under the Tasmanian Civil and Administrative Tribunal Act 2020, to the Guardianship stream of the Tribunal established under that Act; health and medical research– see section 6; health practitioner means the following:a health practitioner within the meaning of the Health Practitioner Regulation National Law (Tasmania) (other than a student); any other professional who is prescribed as a health practitioner for the purposes of this definition; impaired decision-making ability– see section 11; information means information however stored or transmitted; intimate forensic procedure means – an external examination of the genital or anal area, the buttocks or, in the case of a female, the breasts; and an internal examination of a body cavity other than the mouth; and the taking of a sample of pubic hair; and the taking of a sample by swab or washing from the external genital or anal area, the buttocks or, in the case of a female, the breasts; and the taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks or, in the case of a female, the breasts; and the taking of a sample by swab or washing from a body cavity other than the mouth; and the taking of an X-ray of a part of the body; and the taking of a dental impression; and the taking of a photograph of, or an impression or cast from, the external genital or anal area, the buttocks or, in the case of a female, the breasts; and any other procedure prescribed by the Forensic Procedures Regulations 2010 as an intimate forensic procedure; legal matter, in relation to a person, includes – the use of legal services for the person’s benefit; and bringing or defending a legal proceeding or hearing in a court, tribunal or other body on behalf of the person, including settling a claim before or after a legal proceeding or hearing starts; medical or dental treatment or treatment means – medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by, or under, the supervision of a medical practitioner; or dental treatment (including any dental procedure, operation or examination) normally carried out by or under the supervision of a dentist; or an intimate forensic procedure and a non-intimate forensic procedure normally carried out by a person authorised to carry out the procedure under section 40 of the Forensic Procedures Act 2000; or any other act declared by the regulations to be medical or dental treatment for the purposes of this Act – but does not include – any non-intrusive examination made for diagnostic purposes (including a visual examination of the mouth, throat, nasal cavity, eyes or ears); or first-aid medical or dental treatment; or the administration of a pharmaceutical drug for the purpose, and in accordance with the dosage level, recommended in the manufacturer's instructions (if the drug is one for which a prescription is not required and which is normally self-administered); or any other kind of treatment that is declared by the regulations not to be medical or dental treatment for the purposes of this Act; non-intimate forensic procedure means – the taking of a sample of blood; and the taking of a sample of saliva; and the taking of a sample by buccal swab; and an external examination of a part of the body, other than the external genital or anal area, the buttocks or, in the case of a female, the breasts, that requires the touching of the body or the removal of clothing; and an internal examination of the mouth; and the taking of a sample of hair other than pubic hair; and the taking of a sample from a nail or under a nail; and the taking of a sample by swab or washing from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts; and the taking of a sample by vacuum suction, by scraping or by lifting by tape from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts; and the taking of a handprint, fingerprint, footprint or toeprint; and the taking of a photograph of a person or an external part of a person other than the external genital or anal area, the buttocks or, in the case of a female, the breasts; and the taking of an impression or cast from a part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts; and any other procedure prescribed by the Forensic Procedures Regulations 2010 as a non-intimate forensic procedure – but does not include an intrusion into any body cavity of a person other than the mouth; non-regenerative tissue means tissue that, after injury or removal, is not replaced in the body of a living person by natural processes of growth or repair; parent means a person who has parental responsibility and includes a guardian and a person acting in loco parentis; personal matter, in relation to a person, means a matter relating to the personal affairs or lifestyle of the person, including, but not limited to, the following matters:where and with whom the person lives, whether permanently or temporarily; who may contact (whether by post, telephone, or electronic or other means) or visit the person, including – restrictions on contact with the person or visits to the person that are necessary to promote the personal and social well-being of the person; and the prohibition on contact with, or visits to, the person by any person if that contact or those visits would have an adverse effect on the person; the provision of care services to the person; what education, training or work the person undertakes; except as provided under Parts 5A and 6, consenting to or refusing or withdrawing consent to the provision of health care or medical or dental treatment to the person; except as provided under Part 6A, consenting to or refusing or withdrawing consent to the conduct of health and medical research in relation to the person; any legal matter that relates to the personal affairs of the person; person responsible has the meaning given by section 4; pharmaceutical drug includes any substance specified in the Poisons List, within the meaning of the Poisons Act 1971; President has the same meaning as in the Tasmanian Civil and Administrative Tribunal Act 2020;Public Guardian means the person appointed as the Public Guardian under section 14; registered health practitioner means a person who is registered under the Health Practitioner Regulation National Law (Tasmania) to practise a health profession (other than as a student); registered practitioner means a person who is a medical practitioner or a person registered under the Health Practitioner Regulation National Law (Tasmania) in the dental profession as a dentist; registrar means the Registrar, within the meaning of the Tasmanian Civil and Administrative Tribunal Act 2020; regulations means regulations made and in force under this Act; represented person means a person – in respect of whom – a guardianship order is in force; or an administration order is in force; or both a guardianship order and an administration order are in force; or who appoints an enduring guardian and who, by reason of impaired decision-making ability, becomes unable to make decisions in relation to personal matters; service provider includes a financial institution or person with whom a proposed represented person has deposited money or on whose account money has been deposited; special treatment means – any treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out; or termination of pregnancy; or any removal of non-regenerative tissue for the purposes of transplantation; or any other medical or dental treatment that is declared by the regulations to be special treatment for the purposes of this Act; spouse, in relation to a person, includes the person who is in a significant relationship, within the meaning of the Relationships Act 2003, with that person;State authority means a body or authority, whether incorporated or not, which is established or constituted by or under an Act or under the Royal Prerogative, where the body or authority or its governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another such body or authority; support, in relation to the making of a decision by a person, includes, but is not limited to, the following:the use of information or formats tailored to the particular needs of the person making the decision; assistance to communicate the decision of the person making the decision; the giving of additional time to the person making the decision; the use of technology to alleviate the effects of any disability of the person making the decision; tissue includes an organ or part of a human body or substance extracted from, or from a part of, the human body;Tribunal means the Tasmanian Civil and Administrative Tribunal.

Where 2 or more guardians of a person have been appointed under section 20(4), references to a guardian in this Act are taken as references to the guardian exercising the relevant function.

In this Act, a reference to an enduring guardian making or entering into a transaction is to be taken to be a reference to the enduring guardian making a decision, taking an action, giving a consent or doing an act.

In this Act, person responsible for another person means – where the other person is under the age of 18 years and has a spouse, the spouse; or where the other person is under the age of 18 years and has no spouse, his or her parent; or where the other person is of or over the age of 18 years, one of the following persons, in order of priority:the other person's guardian, if the order or instrument appointing the guardian provides authority for the guardian to make the relevant decision; the other person’s spouse; the person having the care of the other person; a close family member of the other person; or in relation to an intimate forensic procedure, or a non-intimate forensic procedure, in respect of the other person, to which a request under subsection (1A) relates, the Public Guardian.

A police officer or registered practitioner may, by notice to the Public Guardian, request the Public Guardian to become the person responsible for a person in relation to an intimate forensic procedure or a non-intimate forensic procedure in respect of the person if – the person is a person to whom Part 6 applies; and the police officer or registered practitioner reasonably believes that the carrying out of the procedure on the person, by a person authorised to carry out the procedure under section 40 of the Forensic Procedures Act 2000, is necessary in the circumstances; and the police officer or registered practitioner is satisfied as to the relevant matters in relation to the person.

For the purposes of subsection (1A)(c), the relevant matters in relation to a person are that – another person, who is not the Public Guardian and who is the person responsible for the person – has refused to consent to the carrying out of the intimate forensic procedure or non-intimate forensic procedure on the person; or is unavailable or inaccessible and his or her consent cannot be sought within a reasonable time; or there is no person responsible for the person who is not the Public Guardian; or it is not appropriate in the circumstances for the consent, of a person who is not the Public Guardian and who is a person responsible for the person, to be sought.

If a person is under the guardianship of the Secretary of the department administering the Children, Young Persons and Their Families Act 1997 pursuant to a care and protection order made under that Act, the Secretary of that department is, notwithstanding subsection (1), taken to be the person responsible for him or her.

The circumstances in which a person is to be regarded as having the care of another person include, but are not limited to, the case where the person, otherwise than for remuneration (whether from the other person or any other source), regularly – provides domestic services and support to the other person; or arranges for the other person to be provided with domestic services and support.

A person who resides in a hospital, nursing home, group home, boarding-house or hostel or any other similar facility at which he or she is cared for by some other person is not, by reason only of that fact, taken to be in the care of that other person and is taken to remain in the care of the person in whose care he or she was immediately before residing in the facility.

For the purposes of this section – a reference to a spouse is to be read as a reference to a spouse who is not under guardianship and with whom the relevant person has a close and continuing relationship; and a person is taken to be a close family member of another person if the person maintains both a close personal relationship with the other person through frequent personal contact and a personal interest in the other person's welfare; and where more than one person would qualify as a spouse, spouse means only the last person to so qualify; and a person is taken not to be a close family member if the person is receiving remuneration (whether from the person or some other source) for any services that he or she performs for the other person in relation to the person's care; and a reference to remuneration is to be read as not including a reference to a carer's pension; and the President may issue guidelines, not inconsistent with this section, specifying the circumstances in which a person is to be regarded as a close family member of another person.

For the purposes of this Act, and without limiting the ways in which this may occur, the personal and social well-being of a person is promoted by –

respecting the inherent dignity of the person and the person’s individual autonomy, including the freedom to make their own choices and their right to independence; and respecting and promoting the person’s own decision-making ability; and ensuring that the person is free from neglect, abuse, exploitation and other forms of harm; and the importance of preserving the dignity of risk of a person with impaired decision-making ability in respect of decisions is to be recognised and to inform those decisions; and respecting the right of the person to be treated without discrimination; and respecting the person's individuality, including personal or lifestyle activities that provide pleasure, purpose and fulfilment to the person; and having regard to the person's existing supportive relationships, religion, values, gender identity, gender expression, sexual orientation and cultural and linguistic environment; and respecting the right of Aboriginal and Torres Strait Islander people to enjoy their culture, including with other people who share that culture; and respecting the person's right to privacy and to have contact with and correspond privately with others; and recognising the importance of, and facilitating access to, the provision of supports that enable the person to exercise the person's autonomy; and recognising the importance to the person of any companion animal that the person has and having regard to the benefits that may be obtained from the person having a companion animal.

Subject to subsection (3), in this Act, health and medical research – means research conducted with or about individuals, or their data or tissue, in the field of medicine or health; and includes an activity undertaken for the purposes of that research.

Without limiting subsection (1), health and medical research includes the following:the administration of pharmaceutical drugs, biologicals or placebos; the use of equipment or a device; providing health care that has not yet gained the support of a substantial number of practitioners in that field of health care; providing health care to which paragraph (c) does not apply to carry out a comparative assessment referred to in paragraph (e); carrying out a comparative assessment of the health care provided under paragraphs (c) and (d); taking samples from an individual, including – a blood sample; and a sample of tissue or fluid from the body, including the mouth, nose, nasal cavity, eyes and ears; conducting medical imaging of an individual, including the use of computed tomography, magnetic resonance imaging, x-ray and ultrasound; taking photographs, films or audio or visual recordings of an individual; any non-intrusive examination, including – a visual examination of the mouth, throat, nasal cavity, eyes or ears; and the measuring of an individual's height, weight or vision; observing an individual; undertaking a survey, interview or focus group; collecting, using or disclosing information, including personal information in accordance with the provisions of the Personal Information Protection Act 2004; considering or evaluating samples or information taken under an activity listed in this subsection; any other activity prescribed to be health and medical research for the purposes of this Act.

In this Act, health and medical research does not include any of the following:research conducted with or about individuals, or their data or tissue, in the field of medicine or health that – only involves analysing data about the individuals; and does not result in the disclosure or publication of personal information; special treatment; any treatment or procedure that would otherwise require the consent of the Tribunal or any other person or body under law; any other activity prescribed not to be health and medical research for the purposes of this Act.

In this section – biological has the same meaning as in section 32A of the Therapeutic Goods Act 1989 of the Commonwealth.

The objects of this Act are to protect and promote the rights and dignity of persons who have impaired decision-making ability by – applying the principles of the Convention on the Rights of Persons with Disabilities, including recognising the need to support persons with impaired decision-making ability to make, participate in and implement decisions that affect their lives; and enabling the making of guardianship orders and administration orders; and recognising the giving of advance care directives; and making provision for the authorisation and approval of medical and dental treatment for persons with impaired decision-making ability; and providing for arrangements for the conduct of health and medical research involving persons with impaired decision-making ability; and setting out principles and procedures to be observed by persons when performing a function under the Act, including making decisions for or on behalf of a represented person; and ensuring that persons with impaired decision-making ability and their families are informed of, and make use of, the provisions of this Act.

A person performing a function under this Act is to observe the following principles:a person’s decision-making ability is to be respected and promoted; a person who requires support in decision making is to be provided with access to the support necessary to enable the person, as far as is practicable in the circumstances – to make and participate in decisions affecting the person; and to express the person’s will and preferences; and to develop the person’s decision-making ability; the views, wishes and preferences of a person with impaired decision-making ability in respect of decisions are to be respected and used to inform those decisions; the role of close family members, carers and other significant persons in the life of a person with impaired decision-making ability in respect of decisions is to be recognised; the importance of preserving the cultural and linguistic environment of the person is to be recognised; the personal and social well-being of a person with impaired decision-making ability in respect of decisions is to be promoted; the means which is the least restrictive of a person’s freedom of decision and action as possible in the circumstances is to be adopted.

In addition to the principles set out in subsection (1), if a function is to be performed under this Act by a person in relation to a child, that function is to be performed so that – as far as is practicable the best interests of the child are paramount; and full consideration is given to the following needs:to protect the child from harm; to promote the child’s development; to strengthen, preserve and promote positive relationships between the child and the child’s parents, family members and other people who are significant in the life of the child.

Persons providing assistance on an informal basis to a person with impaired decision-making ability in respect of a decision are encouraged to apply and promote the principles in this section in providing that assistance.

In this section – serious harm, to a person, means any harm that has a significant impact on the health, welfare, property or financial situation of the person, including as a consequence of abuse, exploitation, neglect or self-neglect; substitute decision-maker means a person with authority under this Act to make decisions for or on behalf of a person with impaired decision-making ability.

A substitute decision-maker is to have regard to the following in determining whether to make a decision for or on behalf of a person with impaired decision-making ability in respect of that decision:whether the person has made an advance care directive in respect of that decision; whether the person is likely to regain decision-making ability in respect of that decision and, if so, whether the decision can be postponed without the delay causing harm.

If a substitute decision-maker is satisfied that there is a need to make a decision for or on behalf of another person, the substitute decision-maker – is to give effect, as far as practicable, to the views, wishes and preferences of the person with impaired decision-making ability, if known (including those expressed in an advance care directive); and if the substitute decision-maker is not able to determine the views, wishes and preferences of the person with impaired decision-making ability, is to – give effect as far as practicable to what the substitute decision-maker reasonably believes those views, wishes and preferences are, based on all the information available; and act in a manner that promotes the personal and social well-being of the person with impaired decision-making ability and is the least restrictive of the person's human rights.

For the purposes of subsection (3)(b)(i), information available includes information obtained by consulting with close family members, carers and other significant people in the life of the person with impaired decision-making ability whom the substitute decision-maker reasonably believes the person with impaired decision-making ability would want to be consulted.

The views, wishes and preferences of the person with impaired decision-making ability should only be overridden by a substitute-decision maker for that person to the extent that – it is necessary to prevent serious harm, or the risk of serious harm, to the person or another person; or the implementation of the decision would be unlawful; or the implementation of the decision would be inconsistent with the terms of any determinations made by the Tribunal under this Act.

If a substitute decision-maker overrides the views, wishes and preferences of a person with impaired decision-making ability, the substitute decision-maker is to, as far as is reasonably practicable, provide the person with information as to why they have overridden the person’s views, wishes and preferences in a way that is appropriate to the person’s circumstances.

In this Part – information, relevant to a decision, includes information on the consequences of – making the decision one way or the other; and deferring the making of the decision; and failing to make the decision.

For the purposes of this Act, an adult is taken to have decision-making ability in respect of a decision unless a person or body responsible for assessing that decision-making ability under this Act is satisfied that the adult has impaired decision-making ability in respect of that decision.

For the purposes of this Act, an adult has impaired decision-making ability in respect of a decision if the adult is unable, even with the provision of access to practicable and appropriate support, to – understand information relevant to the decision; or retain information relevant to the decision for a sufficient time to make and consistently communicate the decision; or use or weigh information relevant to the decision; or communicate the decision (whether by speech, gesture or other means).

For the purposes of this Act, a child is taken to have impaired decision-making ability in respect of a decision unless a registered health practitioner is satisfied that the child has decision-making ability in respect of that decision.

For the purposes of this Act, a child has decision-making ability in respect of a decision if the child – is sufficiently mature to make the decision; and is able to – understand information relevant to the decision; and retain information relevant to the decision for a sufficient time to make and consistently communicate the decision; and use or weigh information relevant to the decision; and communicate the decision (whether by speech, gesture or other means), including with the provision of support.

For the purposes of this Act – a person may be taken to understand information relevant to a decision if it reasonably appears, to the person assessing that person’s decision-making ability, that the person is able to understand an explanation, of the nature and consequences of the decision, given in a way that is appropriate to the person’s circumstances (whether by words, signs or other means); and a person may fluctuate between having impaired decision-making ability and decision-making ability in respect of a decision.