1Short title
This Act may be cited as the Guardianship and Administration Act 1990.
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Explanatory material and speeches for the bills of later Acts that amended this Act, newest first. They explain the amendment, not necessarily the provision you are reading.
This Act may be cited as the Guardianship and Administration Act 1990.
The provisions of this Act shall come into operation on such day as is, or days as are respectively, fixed by proclamation.
In this Act, unless the contrary intention appears —
administration order means an order made under section 64 and includes an order so made which is amended, continued or replaced under any other provision of this Act;
administrator means —
the person appointed as an administrator under section 64 or the Public Advocate acting under section 99; and
2 or more persons appointed as joint administrators under section 64;
advance health directive means —
an advance health directive made under Part 9B; or
an instrument recognised as such under section 110ZA;
application means an application to the State Administrative Tribunal under this Act;
corporate trustee means the Public Trustee or any trustee company under the Trustee Companies Act 1987;
Deputy President means a Deputy President of the State Administrative Tribunal;
determination, in relation to the State Administrative Tribunal, means —
a grant or refusal of leave under section 87; or
the making of, or refusal to make, an order under section 43 or 64; or
the refusal to issue a warrant under section 49; or
the making of, or refusal to make, an order on a review under section 84, 85 or 86; or
the giving of a direction under section 47 or 74; or
the giving or refusal of consent under section 63; or
the making of or refusal to make a declaration under section 111 or the revocation of or refusal to revoke such a declaration; or
the making of, or refusal to make, an order under section 66, 104A(2), 106, 109 or 112(4); or
a decision made under Part 9E Division 5;
electroconvulsive therapy has the meaning given in the Mental Health Act 2014 section 192;
enduring guardian means —
the person who is the enduring guardian under an enduring power of guardianship; or
the persons who are the joint enduring guardians under an enduring power of guardianship,
and includes a substitute enduring guardian while he or she is the enduring guardian or a joint enduring guardian under an enduring power of guardianship;
enduring power of guardianship means —
an enduring power of guardianship made under Part 9A; or
an instrument recognised as such under section 110O;
executive officer has the meaning given to that term in the State Administrative Tribunal Act 2004 section 3;
Full Tribunal means the State Administrative Tribunal constituted so as to consist of —
the President; or
a Deputy President,
and 2 other members;
guardian means —
a person appointed as a guardian (including an alternate guardian) under section 43;
2 or more persons appointed as joint guardians under that section; and
the Public Advocate acting under section 99;
guardianship order means an order made under section 43, and includes an order so made which is amended, continued or replaced under any other provision of this Act;
life sustaining measure means a medical, surgical or nursing procedure directed at supplanting or maintaining a vital bodily function that is temporarily or permanently incapable of independent operation, and includes assisted ventilation and cardiopulmonary resuscitation;
medical research has the meaning given in section 3AA;
member means a member of the State Administrative Tribunal;
mental disability includes an intellectual disability, a psychiatric condition, an acquired brain injury and dementia;
nearest relative in relation to a person means the first in order of priority of the following persons, who has attained the age of 18 years and is reasonably available at the relevant time —
a spouse or de facto partner;
a child;
a step child;
a parent;
a foster parent;
a brother or sister;
a grandparent;
an uncle or aunt;
a nephew or niece,
and for the purposes of this definition —
[(h) deleted]
a brother or sister of a person includes a brother or sister of the half‑blood, and a person who was adopted by one or both of the parents of the first‑mentioned person; and
the elder or eldest of 2 or more relatives described in a paragraph of this definition shall be preferred to the other or any other of those relatives regardless of sex, and no distinction shall be made between relatives of the same age;
palliative care means a medical, surgical or nursing procedure directed at relieving a person’s pain, discomfort or distress, but does not include a life sustaining measure;
party in relation to an application under this Act means the applicant, the represented person or person in respect of whom an application is made, a person to whom notice of an application is required by this Act to be given, or to whom such notice is given, and any person who is heard by the State Administrative Tribunal under clause 13(2)(a) of Schedule 1;
personal information has the meaning given in the Freedom of Information Act 1992 Glossary clause 1;
placebo means a substance not containing an active agent under study administered to some individuals to compare the effects of the active agent administered to other individuals;
President means the President of the State Administrative Tribunal;
Public Advocate means the person for the time being holding or acting in the office of Public Advocate created by section 91(1);
Public Trustee means the Public Trustee appointed under the Public Trustee Act 1941;
represented person means any person in respect of whom —
a guardianship order is in force;
an administration order is in force; or
both a guardianship order and an administration order are in force;
research candidate means an individual —
whose participation is sought in medical research; or
in respect of whom medical research is conducted under Part 9E;
research decision, in relation to a research candidate, means a decision to consent or refuse consent to the candidate’s participation in medical research;
research decision‑maker, for a research candidate, has the meaning given in section 110ZP;
substitute enduring guardian means a person appointed as a substitute enduring guardian under section 110C(1);
treatment —
means —
medical or surgical treatment, including a life sustaining measure or palliative care; or
dental treatment; or
other health care;
and
in Parts 9B and 9E — includes medical research; and
if paragraph (b) does not apply — does not include medical research;
treatment decision, in relation to a person —
means a decision to consent or refuse consent to the commencement or continuation of any treatment of the person; and
in Part 9B — includes a decision to consent or refuse consent to the commencement or continuation of the person’s participation in medical research.
In this Act, a reference to the performance of an abortion on a person —
is a reference to the provision of treatment to the person, including treatment referred to in the Public Health Act 2016 section 202MB(2), with the intention of causing the termination of the pregnancy of the person; and
does not include a reference to the provision of treatment to the person without that intention even if the treatment results or may result in the termination of the pregnancy of the person.
A reference in a written law to the committee of the person of a person is to be read as a reference to the guardian of that person.
[Section 3 amended: No. 16 of 1992 s. 4 and 17; No. 7 of 1996 s. 4; No. 69 of 1996 s. 33; No. 70 of 2000 s. 4; No. 3 of 2002 s. 68; No. 65 of 2003 s. 40(2); No. 55 of 2004 s. 418 and 466(1); No. 21 of 2008 s. 667(2); No. 25 of 2008 s. 5; No. 8 of 2009 s. 68; No. 19 of 2010 s. 18(2); No. 25 of 2014 s. 20; No. 14 of 2020 s. 4; No. 9 of 2022 s. 424; No. 20 of 2023 s. 26.]
For the purposes of this Act, 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), medical research includes the following —
the administration of pharmaceuticals 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; or
a sample of tissue or fluid from the body, including the mouth, throat, nasal cavity, eyes or ears;
any non‑intrusive examination, including —
a visual examination of the mouth, throat, nasal cavity, eyes or ears; or
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;
considering or evaluating samples or information taken under an activity listed in this subsection;
any other activity prescribed by the regulations to be medical research.
Despite subsections (1) and (2), medical research does not include —
research conducted 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;
and
any other activity prescribed by the regulations not to be medical research.
[Section 3AA inserted: No. 14 of 2020 s. 5.]
Nothing in this Act affects the inherent jurisdiction of the Supreme Court.
[Section 3A inserted: No. 55 of 2004 s. 419.]
Nothing in this Act authorises the making of a treatment decision, whether in an advance health directive or otherwise, in relation to voluntary assisted dying as defined in the Voluntary Assisted Dying Act 2019 section 5.
[Section 3B inserted: No. 27 of 2019 s. 170.]
In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
Every person shall be presumed to be capable of —
looking after his own health and safety;
making reasonable judgments in respect of matters relating to his person;
managing his own affairs; and
making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person’s freedom of decision and action.
A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person’s freedom of decision and action.
In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person’s previous actions.
[Section 4 amended: No. 7 of 1996 s. 5; No. 55 of 2004 s. 420 and 466(1); No. 5 of 2008 s. 57(3); No. 19 of 2010 s. 51.]
For the purposes of this Act, the State Administrative Tribunal has —
jurisdiction to consider applications for guardianship and administration orders; and
jurisdiction to make orders appointing, and as to the functions of, and for giving directions to, guardians and administrators; and
jurisdiction to make orders declaring the capacity of a represented person to vote at parliamentary elections; and
jurisdiction to review guardianship and administration orders and to make orders consequential thereon; and
jurisdiction to give or withhold consent to the sterilisation of persons in respect of whom guardianship orders are in force; and
jurisdiction to consent or refuse consent to the performance of abortion on persons who are unable to make reasonable judgments in respect of whether abortions should be performed on them; and
certain jurisdiction in relation to powers of attorney that operate after the donor has ceased to have legal capacity; and
any other jurisdiction vested in it by this Act or any other Act in relation to matters of guardianship and administration; and
jurisdiction otherwise conferred on the Tribunal under this Act.
[Section 13 amended: No. 7 of 1996 s. 10; No. 55 of 2004 s. 425; No. 14 of 2020 s. 6; No. 20 of 2023 s. 27.]
[14‑15A. Deleted: No. 55 of 2004 s. 426.]
[(1) deleted]
Where a person gives evidence or information —
at the instigation of the State Administrative Tribunal; or
at the instigation of a party and the State Administrative Tribunal considers that the circumstances are exceptional,
the Tribunal may approve payment to him of such amount as it thinks fit in or towards defraying any costs and expenses incurred by him in doing so, and an amount so approved shall be paid from moneys appropriated by Parliament for that purpose.
[(3) deleted]
The State Administrative Tribunal may, if it is satisfied that a party to proceedings commenced under this Act has acted in the best interests of the represented person or a person in respect of whom an application is made, order that such costs relative to those proceedings as the State Administrative Tribunal thinks fit be paid to that party by, or out of the assets of, that person.
Nothing in this section limits any other power of the State Administrative Tribunal under the State Administrative Tribunal Act 2004.
[Section 16 amended: No. 16 of 1992 s. 18; No. 55 of 2004 s. 427 and 466.]
The provisions of Schedule 1 have effect with respect to proceedings of the State Administrative Tribunal commenced under this Act.
Those provisions operate in addition to the provisions of the State Administrative Tribunal Act 2004.
[Section 17 amended: No. 55 of 2004 s. 428; No. 19 of 2010 s. 18(2).]
Where the State Administrative Tribunal consisting of one member makes any determination, a party who is aggrieved by the determination may request the President to arrange for a Full Tribunal to review the determination, and the President shall comply with any such request.
A request under subsection (1) is to be made within 28 days of the date of the determination or, if the Full Tribunal considers there is good reason for making the request outside that time, such further time as the Full Tribunal allows.
[Section 17A inserted: No. 16 of 1992 s. 8; amended: No. 7 of 1996 s. 37; No. 70 of 2000 s. 7; No. 55 of 2004 s. 429 and 466.]
The executive officer shall, at least 7 days before the day on which a review commenced under this Division is to be heard, cause notice in writing of the hearing to be given to —
the applicant;
the represented person;
the nearest relative of the represented person;
the guardian (if any) of the represented person;
the administrator (if any) of the estate of the represented person;
the Public Advocate;
any other person who in the opinion of the executive officer has a sufficient interest in the proceedings.
A notice under subsection (1) shall include —
particulars of the review and the time and place of the hearing; and
in the case of the notice given to the applicant or the represented person, a summary of the provisions of section 16 and clause 13 of Schedule 1 of this Act and sections 39, 87 and 88 of the State Administrative Tribunal Act 2004 as they affect that person.
The State Administrative Tribunal may where it considers that exceptional circumstances so require —
shorten the time for giving notice to all or any of the persons referred to in subsection (1); and
dispense with the requirements for notice to be given to all or any of the persons referred to in that subsection other than the represented person and the Public Advocate.
[Section 17B inserted: No. 16 of 1992 s. 8; amended: No. 7 of 1996 s. 36; No. 55 of 2004 s. 430 and 466(1); No. 19 of 2010 s. 18(2).]
[17C, 17D. Deleted: No. 55 of 2004 s. 431.]
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