Guardianship and Administration Act 2000 (Qld)

Guardianship and Administration Act 2000

An Act to consolidate, amend and reform the law relating to the appointment of guardians and administrators to manage the personal and financial affairs of adults with impaired capacity, to confer jurisdiction on the Queensland Civil and Administrative Tribunal for particular purposes, to create an office of Public Advocate, and for other purposes

Chapter 1    Preliminary

1   Short title

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

2   Commencement

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

3   Definitions

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

4   Act binds all persons

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.

Chapter 2    Explanation

5   Acknowledgements

This Act acknowledges the following—

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

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

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

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

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

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

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

6   Purpose to achieve balance

This Act seeks to strike an appropriate balance between—

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

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

7   Way purpose achieved

This Act—

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

(b)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

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

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

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

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

(g)provides for the appointment of the public advocate for systemic advocacy.

7A   Relationship with Public Guardian Act 2014

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).

8   Relationship with Powers of Attorney Act 1998

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

(a)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; and

Note—

Personal matters do not include special personal matters or special health matters—schedule 2, section 2.

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

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

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

9   Range of substitute decision-makers

(1)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.

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

(a)on an informal basis by members of the adult’s existing support network; or

Note—

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.

(b)on a formal basis by 1 of the following—

(i)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;

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

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

(iv)a guardian appointed under this Act;

Note—

A guardian may only be appointed for personal matters.

(v)an administrator appointed under this Act;

Note—

An administrator may only be appointed for financial matters.

(vi)the tribunal;

(vii)the court.

10   Types of matter

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.

11   Application of presumption of capacity

(1)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.

(2)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.

(3)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.

11A   Primary focus—adults

(1)Adults with impaired capacity are the primary focus of this Act.

(2)However, chapter 5A deals with children with an impairment.

Chapter 2A    Principles

11B   General principles

(1)The principles (the general principles) set out below must be applied by a person or other entity that performs a function or exercises a power under this Act.

(2)Also, a person making a decision for an adult on an informal basis must apply the general principles in making the decision.

(3)The community is encouraged to apply and promote the general principles.

General principles

1Presumption of capacity
An adult is presumed to have capacity for a matter.

2Same human rights and fundamental freedoms

(1)An adult’s inherent dignity and worth, and equal and inalienable rights, must be recognised and taken into account.

(2)The rights of all adults to the same human rights and fundamental freedoms, regardless of a particular adult’s capacity, must be recognised and taken into account.

(3)The principles on which an adult’s human rights and fundamental freedoms are based, and that should inform the way those rights and freedoms are taken into account, include—

(a)respect for inherent dignity and worth, individual autonomy (including the freedom to make one’s own choices) and independence of persons; and

(b)non-discrimination; and

(c)full and effective participation and inclusion in society, including performing roles valued by society; and

(d)respect for difference and acceptance of persons with impaired capacity as part of human diversity and humanity; and

(e)equality of opportunity; and

(f)accessibility; and

(g)equality between all persons regardless of gender.

3Empowering adult to exercise human rights and fundamental freedoms
The importance of the following matters must be taken into account—

(a)empowering an adult to exercise the adult’s human rights and fundamental freedoms;

(b)encouraging and supporting an adult—

(i)to perform social roles valued in society; and

(ii)to live a life in the general community and to take part in activities enjoyed by the community; and

(iii)to achieve maximum physical, social, emotional and intellectual potential and to become as self-reliant as practicable;

(c)an adult’s right to participate to the greatest extent practicable in the development of policies, programs and services for people with impaired capacity for a matter.

4Maintenance of adult’s existing supportive relationships

(1)The importance of maintaining an adult’s existing supportive relationships must be taken into account.

(2)Maintaining an adult’s existing supportive relationships may, for example, involve consultation with—

(a)the adult, to find out who are the members of the adult’s support network; and

(b)any persons who have an existing supportive relationship with the adult; and

(c)any members of the adult’s support network who are making decisions for the adult on an informal basis.

(3)The role of families, carers and other significant persons in an adult’s life to support the adult to make decisions should be acknowledged and respected.

5Maintenance of adult’s cultural and linguistic environment and values

(1)The importance of maintaining an adult’s cultural and linguistic environment and set of values, including religious beliefs, must be taken into account.

(2)Without limiting subsection (1), for an adult who is an Aboriginal person or a Torres Strait Islander, the importance of maintaining the adult’s Aboriginal or Torres Strait Islander cultural and linguistic environment and set of values, including Aboriginal tradition or Island custom, must be taken into account.

6Respect for privacy

(1)An adult’s privacy must be taken into account and respected.

(2)An adult’s personal information, including health information, must be protected on the same basis as other people’s personal information is protected.

7Liberty and security

(1)An adult’s right to liberty and security on an equal basis with others must be taken into account.

(2)An adult should not be deprived of the adult’s liberty except in accordance with the law.

8Maximising an adult’s participation in decision-making

(1)An adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s life must be recognised and taken into account.

(2)An adult must be given the support and access to information necessary to enable the adult to make or participate in decisions affecting the adult’s life.

(3)An adult must be given the support necessary to enable the adult to communicate the adult’s decisions.

(4)To the greatest extent practicable, a person or other entity, in exercising power for a matter for an adult, must seek the adult’s views, wishes and preferences.

(5)An adult’s views, wishes and preferences may be expressed orally, in writing or in another way, including, for example, by conduct.

(6)An adult is not to be treated as unable to make a decision about a matter unless all practicable steps have been taken to provide the adult with the support and access to information necessary to make and communicate a decision.

9Performance of functions and exercise of powers
A person or other entity, in performing a function or exercising a power under this Act in relation to an adult, or in making a decision for an adult on an informal basis, must do so—

(a)in a way that promotes and safeguards the adult’s rights, interests and opportunities; and

(b)in the way that is least restrictive of the adult’s rights, interests and opportunities.

10Structured decision-making

(1)In applying general principle 9, a person or other entity in performing a function or exercising a power under this Act in relation to an adult, or in making a decision for an adult on an informal basis, must adopt the approach set out in subsections (2) to (5).

(2)First, the person or other entity must—

(a)recognise and preserve, to the greatest extent practicable, the adult’s right to make the adult’s own decision; and

(b)if possible, support the adult to make a decision.

(3)Second, the person or other entity must recognise and take into account any views, wishes and preferences expressed or demonstrated by the adult.

(4)Third, if the adult’s views, wishes and preferences can not be determined, the person or other entity must use the principle of substituted judgement so that if, from the adult’s views, wishes and preferences, expressed or demonstrated when the adult had capacity, it is reasonably practicable to work out what the adult’s views, wishes and preferences would be, the person or other entity must recognise and take into account what the person or other entity considers the adult’s views, wishes and preferences would be.

(5)Fourth, once the person or other entity has recognised and taken into account the matters mentioned in subsections (2) to (4), the person or other entity may perform the function, exercise the power or make the decision.

11C   Health care principles

(1)The principles (the health care principles) set out below must be applied by a person or other entity that performs a function or exercises a power under this Act for a health matter or a special health matter.

(2)Also, an entity authorised by an Act to make a decision for an adult about prescribed special health care must apply the health care principles.

(3)For subsection (2), the health care principles and the general principles apply as if a reference in the principles to performing a function or exercising a power under this Act were a reference to making a decision about prescribed special health care under the Act under which the decision is to be made.

Health care principles

1Application of general principles
A person or other entity that performs a function or exercises a power under this Act, for a health matter or a special health matter in relation to an adult, must also apply the general principles.

2Same human rights and fundamental freedoms
In applying general principle 2 to a health matter or special health matter—

(a)the principle of non-discrimination requires that all adults be offered appropriate health care, including preventative care, without regard to a particular adult’s capacity; and

(b)any consent to, or refusal of, health care for an adult must take into account the principles of respect for inherent dignity and worth, individual autonomy (including the freedom to make one’s own choices) and independence of persons.

3Performance of functions and exercise of powers
In applying general principles 9 and 10 to a health matter or special health matter, a person or other entity, in performing a function or exercising a power under this Act in relation to an adult, must take into account—

(a)information given by the adult’s health provider; and

(b)if the adult has a medical condition—

(i)the nature of the adult’s medical condition; and

(ii)the adult’s prognosis; and

(c)if particular health care is proposed, any alternative health care that is available; and

(d)the nature and degree of any significant risks associated with the proposed health care or any alternative health care; and

(e)whether the proposed health care can be postponed because a better health care option may become available within a reasonable time or the adult is likely to become capable of making the adult’s own decision about the health care; and

(f)the consequences for the adult if the proposed health care is not carried out; and

(g)a consideration of the benefits versus the burdens of the proposed health care; and

(h)the effect of the proposed health care on the adult’s dignity and autonomy.

4Substituted judgement
For applying general principle 10(4) to a health matter or special health matter, the views and wishes of an adult expressed when the adult had capacity may also be expressed—

(a)in an advance health directive; or

(b)by a consent to, or refusal of, health care given at a time when the adult had capacity to make decisions about the health care.

Chapter 3    Appointment of guardians and administrators

Part 1    Making an appointment order

12   Appointment

(1)The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied—

(a)the adult has impaired capacity for the matter; and

(b)there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and

(c)without an appointment—

(i)the adult’s needs will not be adequately met; or

(ii)the adult’s interests will not be adequately protected.

(2)The appointment may be on terms considered appropriate by the tribunal.

(3)The tribunal may make the order on its own initiative or on the application of the adult, the public guardian or an interested person.

(4)This section does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B.

Note—

Section 80ZD provides for the appointment of guardians for restrictive practice matters.

12A   Appointment—missing person

(1)The tribunal may, by order, appoint an administrator for a financial matter for an adult if the tribunal is satisfied—

(a)the adult is a missing person; and

(b)the adult usually resides in the State; and

(c)there is, or is likely to be, a need for a decision in relation to the matter; and

(d)without an appointment the adult’s interests in the matter would be adversely affected.

(2)The tribunal may be satisfied an adult is a missing person only if the tribunal is satisfied that—

(a)it is not known if the adult is alive; and

(b)reasonable efforts have been made to locate the adult; and

(c)for at least 90 days the adult has not contacted—

(i)anyone who lives at the adult’s last-known home address; or

(ii)any relative or friend of the adult with whom the adult is likely to communicate.

(3)This Act applies, with necessary changes, to an appointment under this section.

(4)The appointment may be on terms considered appropriate by the tribunal.

(5)An application for the appointment of an administrator under subsection (1) may be made by—

(a)the adult’s spouse; or

(b)a relative of the adult; or

(c)the public trustee; or

(d)an interested person for the adult.

12B   Relationship with Public Trustee Act 1978

(1)The tribunal may not appoint an administrator under section 12A for a financial matter for an adult if the public trustee is the administrator under the Public Trustee Act 1978, section 104(1) of the property to which the financial matter relates.

(2)The tribunal may appoint an administrator under section 12A for a financial matter for an adult relating to property of which the public trustee is the administrator under the Public Trustee Act 1978, section 104(2).

(3)On the making of an appointment of an administrator as mentioned in subsection (2), the public trustee ceases to be the administrator of the property under the Public Trustee Act 1978, section 104(2).

13   Advance appointment

(1)The tribunal may, by order, make an appointment of a guardian for a personal matter, or an administrator for a financial matter, for an individual who is at least 17¹/₂ years but not 18 years if the tribunal is satisfied—

(a)there is a reasonable likelihood, when the individual turns 18, the individual will have impaired capacity for the matter; and

(b)there is a reasonable likelihood, when the individual turns 18—

(i)there will be a need to do something in relation to the matter; or

(ii)the individual is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the individual’s health, welfare or property; and

(c)there is a reasonable likelihood, without an appointment, when the individual turns 18—

(i)the individual’s needs would not be adequately met; or

(ii)the individual’s interests would not be adequately protected.

(2)This Act applies, with necessary changes, to an appointment under this section.

(3)The appointment begins when the individual turns 18.

(4)The appointment ends when the individual turns 19, unless the tribunal orders the appointment to be for a longer period.

(5)The tribunal may order the appointment for a longer period only if the tribunal considers—

(a)the need for an appointment will continue for the longer period; and

(b)the need for the tribunal to review the appointment is very limited.

(6)The longer period may be—

(a)if the administrator is the public trustee or a trustee company under the Trustee Companies Act 1968—the period decided by the tribunal; or

(b)otherwise—a period of not more than 5 years.

(7)The appointment may be on terms considered appropriate by the tribunal.

(8)The tribunal may make the order on its own initiative or on the application of the individual or an interested person.

(9)This section does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B.

13A   Advance appointment—guardian for restrictive practice matter

(1)The tribunal may, by order, make an appointment of a guardian for a restrictive practice matter under chapter 5B for an individual who is at least 17¹/₂ years but not 18 years if the tribunal is satisfied—

(a)there is a reasonable likelihood, when the individual turns 18, the individual will have impaired capacity for the matter; and

(b)the individual’s behaviour has previously resulted in harm to the individual or others; and

(c)there is a reasonable likelihood, when the individual turns 18—

(i)there will be a need for a decision about the restrictive practice matter; and

(ii)without the appointment—

(A)the individual’s behaviour is likely to cause harm to the individual or others; and

(B)the individual’s interests would not be adequately protected.

(2)This Act applies, with necessary changes, to an appointment under this section.

(3)The appointment begins when the individual turns 18.

(4)The appointment ends—

(a)on the day ordered by the tribunal, which must not be later than the day the individual turns 19; or

(b)if no day is ordered by the tribunal—when the individual turns 19.

(5)The appointment may be on terms considered appropriate by the tribunal.

(6)The tribunal may make the order on its own initiative or on the application of any of the following—

(a)the individual;

(b)an interested person for the individual;

(c)a relevant service provider;

(d)the chief executive (disability services);

(e)the public guardian;

(f)if the individual is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016—the chief psychiatrist.

14   Appointment of 1 or more eligible guardians and administrators

(1)The tribunal may appoint a person as guardian or administrator for a matter only if—

(a)for appointment as a guardian, the person is—

(i)a person who is at least 18 years and not a paid carer, or health provider, for the adult; or

(ii)the public guardian; and

(b)for appointment as an administrator, the person is—

(i)a person who is at least 18 years, not a paid carer, or health provider, for the adult and not bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or

(ii)the public trustee or a trustee company under the Trustee Companies Act 1968; and

(c)having regard to the matters mentioned in section 15(1), the tribunal considers the person appropriate for appointment.

(2)Despite subsection (1)(a)(ii), the tribunal may appoint the public guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter.

(3)Subject to section 74, no-one may be appointed as a guardian for a special personal matter or special health matter.

Note—

The tribunal may consent to particular special health care—see section 68 (Special health care).

(4)The tribunal may appoint a person as guardian or administrator for a matter for an adult on the application of the adult’s parent only if the tribunal has informed the parent of the tribunal’s power under subsection (6)(e) to appoint successive appointees for the matter.

(5)A failure by the tribunal to comply with subsection (4) does not affect an appointment made by the tribunal.

(6)The tribunal may appoint 1 or more of the following—

(a)a single appointee for a matter or all matters;

(b)different appointees for different matters;

(c)a person to act as appointee for a matter or all matters in a stated circumstance;

(d)alternative appointees for a matter or all matters so power is given to a particular appointee only in stated circumstances;

(e)successive appointees for a matter or all matters so power is given to a particular appointee only when power given to a previous appointee ends;

(f)joint or several, or joint and several, appointees for a matter or all matters;

(g)2 or more joint appointees for a matter or all matters, being a number less than the total number of appointees for the matter or all matters.

(7)If the tribunal makes an appointment because an adult has impaired capacity for a matter and the tribunal does not consider the impaired capacity is permanent, the tribunal must state in its order when it considers it appropriate for the appointment to be reviewed.

Note—

Otherwise periodic reviews happen under section 28.

15   Appropriateness considerations

(1)In deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the tribunal must consider the following matters (appropriateness considerations)—

(a)the general principles and whether the person is likely to apply them;

(b)if the appointment is for a health matter—the health care principles and whether the person is likely to apply the principles;

(c)the extent to which the adult’s and person’s interests are likely to conflict;

(d)whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult;

(e)if more than 1 person is to be appointed—whether the persons are compatible;

(f)whether the person would be available and accessible to the adult;

(g)the person’s appropriateness and competence to perform functions and exercise powers under an appointment order, including whether the person has ever been a paid carer for the adult.

(2)The fact a person is a relation of the adult does not, of itself, mean the adult’s and person’s interests are likely to conflict.

(3)Also, the fact a person may be a beneficiary of the adult’s estate on the adult’s death does not, of itself, mean the adult’s and person’s interests are likely to conflict.

(4)In considering the person’s appropriateness and competence, the tribunal must have regard to the following—

(a)the nature and circumstances of any criminal history, whether in Queensland or elsewhere, of the person including the likelihood the commission of any offence in the criminal history may adversely affect the adult;

(b)the nature and circumstances of any refusal of, or removal from, appointment, whether in Queensland or elsewhere, as a guardian, administrator, attorney or other person making a decision for someone else;

(c)if the proposed appointment is of an administrator and the person is an individual—

(i)the nature and circumstances of the person having been a bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; and

(ii)the nature and circumstances of a proposed, current or previous arrangement with the person’s creditors under the Bankruptcy Act 1966 (Cwlth), part 10 or a similar law of a foreign jurisdiction; and

(iii)the nature and circumstances of a proposed, current or previous external administration of a corporation, partnership or other entity of which the person is or was a director, secretary or partner or in whose management, direction or control the person is or was involved.

(5)In this section—

attorney means—

(a)an attorney under a power of attorney; or

(b)an attorney under an advance health directive or similar document under the law of another jurisdiction.

power of attorney means—

(a)a general power of attorney made under the Powers of Attorney Act 1998; or

(b)an enduring power of attorney; or

(c)a power of attorney made otherwise than under the Powers of Attorney Act 1998, whether before or after its commencement; or

(d)a similar document under the law of another jurisdiction.

16   Advice from proposed appointee about appropriateness and competence

(1)An individual who has agreed to a proposed appointment (a proposed appointee) must advise the tribunal before the tribunal makes an order appointing the proposed appointee whether he or she—

(a)is under 18 years; or

(b)is, or has ever been, a paid carer for the adult; or

(c)is a health provider for the adult; or

(d)has any criminal history, whether in Queensland or elsewhere; or

(e)has been, whether in Queensland or elsewhere, refused, or removed from, appointment as a guardian, administrator, attorney or other person making a decision for someone else; or

(f)for a proposed appointment as administrator—

(i)is bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or

(ii)has ever been bankrupt or taken advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or

(iii)is proposing to make, or has ever made, an arrangement with his or her creditors under the Bankruptcy Act 1966 (Cwlth), part 10 or a similar law of a foreign jurisdiction; or

(iv)is or was a director, secretary or partner, or is or was involved in the management, direction or control of a corporation, partnership or other entity that is proposing to be, is or has been, under external administration.

Maximum penalty—40 penalty units.

(2)The proposed appointee must also advise the tribunal of any likely conflict between—

(a)the duty of the proposed appointee if appointed as guardian or administrator towards the adult; and

(b)either—

(i)the interests of the proposed appointee or a person in a close personal or business relationship with the proposed appointee; or

(ii)another duty of the proposed appointee as guardian or administrator for another person.

Maximum penalty—40 penalty units.

(3)The proposed appointee must give the advice by statutory declaration or on oath or affirmation if required by the tribunal.

Maximum penalty—40 penalty units.

(4)In this section—

attorney means—

(a)an attorney under a power of attorney; or

(b)an attorney under an advance health directive or similar document under the law of another jurisdiction.

power of attorney means—

(a)a general power of attorney made under the Powers of Attorney Act 1998; or

(b)an enduring power of attorney; or

(c)a power of attorney made otherwise than under the Powers of Attorney Act 1998, whether before or after its commencement; or

(d)a similar document under the law of another jurisdiction.

17   Guardian or administrator to update advice about appropriateness and competence

(1)After appointment, a guardian or administrator is under a continuing duty to advise the tribunal of anything of which the guardian or administrator—

(a)has not previously advised the tribunal; and

(b)would be required to advise the tribunal under section 16 if the tribunal were considering whether to appoint the guardian or administrator.

Maximum penalty—40 penalty units.

(2)The guardian or administrator must give the advice by statutory declaration or on oath or affirmation if required by the tribunal.

Maximum penalty—40 penalty units.

18   Inquiries about appropriateness and competence

(1)The tribunal, or the registrar acting either at the direction of the tribunal or on the registrar’s own initiative, may make inquiries about the appropriateness and competence to perform functions and exercise powers under an appointment order of a person who has agreed to a proposed appointment or who is a guardian or administrator.

(2)If asked by the tribunal or registrar, the commissioner of the police service must give the tribunal or registrar a written report about the criminal history of—

(a)a person who has agreed to a proposed appointment; or

(b)a person who is a guardian or administrator; or

(c)if the person mentioned in paragraph (a) or (b) is a corporation—a director, secretary or person involved in the management, direction or control of the corporation.

(3)If the registrar makes the inquiries, the registrar must advise the tribunal of the results of the inquiries before the tribunal makes an appointment order.

19   Comply with other tribunal requirement

(1)The tribunal may impose a requirement, including a requirement about giving security, on a guardian or administrator or a person who is to become a guardian or administrator.

(2)A guardian or administrator or person who is to become a guardian or administrator must comply with the requirement.

Maximum penalty—200 penalty units.

20   Financial management plan

(1)Unless the tribunal orders otherwise, a person who agrees to a proposed appointment as an administrator must give a financial management plan to the tribunal, or its appropriately qualified nominee, for approval.

(2)The tribunal, or its appropriately qualified nominee, may approve a financial management plan.

(3)In this section—

appropriately qualified, for a nominee in relation to a financial management plan, means having the qualifications or experience appropriate to approve the plan.

21   Advice to registrar of titles if appointment concerns land

(1)If the tribunal appoints an administrator for a matter involving an interest in land, the tribunal and the administrator must each, within 3 months of the appointment, advise the registrar of titles.

(2)If the registrar of titles receives an advice, the registrar of titles must keep the information contained in the advice in a way that ensures a search of the relevant title reveals the order making the appointment has been made.

(3)The administrator must pay the titles registry fee for giving the advice.

Editor’s note—

Note section 47 (Payment of expenses).

Part 2    Relationship between appointment and enduring document

22   Attorney’s power subject to tribunal authorisation

(1)This section applies if—

(a)an adult’s enduring document gives power for a matter to an attorney; and

(b)after the enduring document is made, the tribunal, with knowledge of the existence of the enduring document, gives the power to a guardian or an administrator.

(2)The attorney may exercise power only to the extent authorised by the tribunal.

(3)Subsection (2) does not apply for power for a health matter.

Note—

For health matters, see section 66 (Adult with impaired capacity—order of priority in dealing with health matter).

23   Appointment without knowledge of enduring document

(1)This section applies if—

(a)the tribunal gives power for a matter for an adult to a guardian or an administrator without knowledge of the existence of an enduring document giving power for the matter to an attorney for the adult; and

(b)the guardian or administrator becomes aware of the existence or purported existence of the enduring document.

(2)If the guardian or administrator becomes aware of the existence or purported existence of the enduring document, the guardian’s or administrator’s power for the matter is suspended pending review of the appointment of the guardian or administrator.

Editor’s note—

Note section 56 (Protection if unaware of change of appointee’s power).

(3)The guardian or administrator must advise the tribunal in writing of the existence or purported existence of the enduring document as soon as practicable.

Maximum penalty—40 penalty units.

(4)If the tribunal receives an advice under subsection (3), the tribunal must review the appointment of the guardian or administrator.

(5)Part 3, division 2 applies to the review.

24   Protection if unaware of appointment

(1)An attorney who, without knowing power has been given by the tribunal to a guardian or administrator, purports to exercise the power does not incur any liability, either to the adult or anyone else, because of the appointment of the guardian or administrator.

(2)A transaction between—

(a)an attorney who purports to exercise power for a matter; and

(b)a person who does not know power for the matter has been given to a guardian or administrator;

      is, in favour of the person, as valid as if the power had not been given to the guardian or administrator.

(3)In this section—

attorney means an attorney under an enduring document or a statutory health attorney.

know, power has been given by the tribunal, includes have reason to believe power has been given by the tribunal.

25   Protection if unaware power already exercised by advance health directive

(1)This section applies if—

(a)an adult’s advance health directive includes a direction about a matter; and

(b)after the advance health directive is made, but without reference to it, the tribunal gives power for the matter to a guardian.

(2)The guardian who, without knowing a direction about the matter is included in an advance health directive, purports to exercise power for the matter does not incur any liability, either to the adult or anyone else, because of the direction being included in the advance health directive.

(3)If—

(a)the guardian purports to exercise power for a matter; and

(b)without knowing a direction about the matter is included in an advance health directive, a person acts in reliance on the purported exercise of power;

      the person does not incur any liability, either to the adult or anyone else, because of the direction being included in the advance health directive.

(4)In this section—

know, a direction about a matter is included in an advance health directive, includes have reason to believe the matter is dealt with by an advance health directive.

Part 3    Changing or revoking an appointment order

Division 1 Revocation by appointee

26   Automatic revocation

(1)An appointment as a guardian or administrator for an adult for a matter ends if—

(a)the guardian or administrator becomes a paid carer, or health provider, for the adult; or

(b)the guardian or administrator becomes the service provider for a residential service where the adult is a resident; or

(c)if the guardian or administrator and the adult are married when the appointment is made—the marriage is dissolved; or

(d)if the guardian or administrator and the adult are in a civil partnership when the appointment is made—the civil partnership is terminated under the Civil Partnerships Act 2011, part 2, division 4; or

(e)the guardian or administrator dies; or

(f)the adult dies; or

(g)for a guardian for a restrictive practice matter under chapter 5B—the tribunal gives a containment or seclusion approval under chapter 5B in relation to the adult.

(2)Also, an appointment as an administrator ends if—

(a)the administrator becomes bankrupt or insolvent; or

(b)for an appointment made under section 12A for an adult—

(i)a coroner makes a finding under the Coroners Act 2003 that the adult has died; or

(ii)the court makes a declaration of death for the adult or grants a person leave to swear the death of the adult; or

(iii)the adult’s death is registered under the Births, Deaths and Marriages Registration Act 2023.

(2A)If more than 1 event mentioned in subsection (2)(b) applies for the adult, the appointment ends on the happening of the earliest event for the adult.

(3)If an appointment as a guardian or administrator ends under subsection (1)(a), (b), (c), (d) or (f) or subsection (2), the former guardian or administrator must advise the tribunal in writing of the ending of the appointment.

(4)If an appointment as a guardian or administrator for a matter ends under subsection (1) or (2) and the guardian or administrator was a joint guardian or administrator for the matter—

(a)if, of the joint guardians or administrators, there is 1 remaining guardian or administrator, the remaining guardian or administrator may exercise power for the matter; and

(b)if, of the joint guardians or administrators, there are 2 or more remaining guardians or administrators, the remaining guardians or administrators may exercise power for the matter and, if exercising power, must exercise power jointly.

(5)In this section—

resident has the meaning given by the Residential Services (Accreditation) Act 2002.

residential service has the meaning given by the Residential Services (Accreditation) Act 2002.

service provider has the meaning given by the Residential Services (Accreditation) Act 2002.

27   Withdrawal with tribunal’s leave

(1)An appointment as a guardian or administrator for an adult for a matter ends if, with the tribunal’s leave, the guardian or administrator withdraws as guardian or administrator for the matter.

(2)If the tribunal gives leave for a guardian or administrator to withdraw for a matter—

(a)the tribunal may appoint someone else to replace the withdrawing person as guardian or administrator for the matter; and

(b)for a withdrawing administrator notice of whose appointment was given to the registrar of titles under section 21, the registrar of the tribunal must take reasonable steps to advise the registrar of titles of the withdrawal.

(3)If the registrar of titles receives an advice of withdrawal, the registrar of titles must keep the information contained in the advice in a way that ensures a search of the relevant title reveals the withdrawal of the administrator.

(4)The withdrawing administrator must pay the titles registry fee for giving the advice, unless the tribunal orders otherwise.

Division 1A Provisions about appointment for adult who is missing person

27A   Obligation to notify tribunal of particular circumstances

(1)This section applies to an administrator appointed for an adult under section 12A if, during the term of the appointment, the administrator becomes aware—

(a)the adult is alive; or

(b)the adult has died.

(2)The administrator must, as soon as practicable after becoming aware a circumstance mentioned in subsection (1)(a) or (b) exists, notify the tribunal in writing of the circumstance.

27B   Tribunal must revoke order making appointment

(1)This section applies in relation to an order appointing an administrator for an adult under section 12A.

(2)The tribunal must revoke the order if the tribunal is satisfied—

(a)the adult is alive; or

(b)the adult has died; or

(c)the adult may be presumed to be dead.

(3)The order may be revoked by the tribunal on its own initiative or on the application of the administrator or an interested person.

Division 2 Change or revocation at tribunal review of appointment

28   Periodic review of appointment

(1)The tribunal must review an appointment of a guardian or administrator (other than the public trustee or a trustee company under the Trustee Companies Act 1968)—

(a)for an appointment made because an adult has impaired capacity for a matter but the tribunal does not consider the impaired capacity is permanent—in accordance with an order of the tribunal, but at least every 5 years; or

(b)otherwise—at least every 5 years.

(2)This section does not apply for a guardian for a restrictive practice matter under chapter 5B.

29   Other review of appointment

(1)The tribunal may review an appointment of a guardian or administrator for an adult at any time—

(a)on its own initiative; or

(b)for a guardian (other than a guardian for a restrictive practice matter under chapter 5B) or an administrator—on the application of any of the following—

(i)the adult;

(ii)an interested person for the adult;

(iii)the public trustee;

(iv)a trustee company under the Trustee Companies Act 1968; or

(c)for a guardian for a restrictive practice matter under chapter 5B—on the application of any of the following—

(i)the adult;

(ii)an interested person for the adult;

(iii)a relevant service provider providing disability services to the adult;

(iv)the chief executive (disability services);

(v)the public guardian;

(vi)if the adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016—the chief psychiatrist;

(vii)if the adult is a forensic disability client—the director of forensic disability.

(2)However, the tribunal must review the appointment of a guardian for a restrictive practice matter under chapter 5B at least once before the term of the appointment ends.

30   Guardian or administrator to update advice about appropriateness and competence

(1)For a review of an appointment, the tribunal may require the guardian or administrator to advise the tribunal of anything of which the guardian or administrator—

(a)has not previously advised the tribunal; and

(b)would be required to advise the tribunal under section 16 if the tribunal were considering whether to appoint the guardian or administrator.

(2)The guardian or administrator must give the advice by statutory declaration or on oath or affirmation if required by the tribunal.

Maximum penalty—40 penalty units.

31   Appointment review process

(1)The tribunal may conduct a review of an appointment of a guardian or administrator (an appointee) for an adult in the way it considers appropriate.

(2)At the end of the review, the tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.

(3)If the tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either—

(a)continue its order making the appointment; or

(b)change its order making the appointment, including, for example, by—

(i)changing the terms of the appointment; or

(ii)removing an appointee; or

(iii)making a new appointment.

(4)However, the tribunal may make an order removing an appointee, other than the public guardian, only if the tribunal considers—

(a)the appointee is no longer competent; or

(b)another person is more appropriate for appointment.

(5)An appointee is no longer competent if, for example—

(a)a relevant interest of the adult has not been, or is not being, adequately protected; or

(b)the appointee has neglected the appointee’s duties or abused the appointee’s powers, whether generally or in relation to a specific power; or

(c)the appointee is an administrator appointed for a matter involving an interest in land and the appointee fails to advise the registrar of titles of the appointment as required under section 21(1); or

(d)the appointee has otherwise contravened this Act.

(6)The tribunal may make an order removing the public guardian as an appointee if there is an appropriate person mentioned in section 14(1) available for appointment.

(7)The tribunal may include in its order changing or revoking the appointment of an administrator a provision as to who must pay the titles registry fee for giving or withdrawing the advice of the change or revocation.

32   Tribunal to advise of change, revocation or ending of appointment

(1)This section applies if—

(a)the tribunal changes or revokes the appointment for an adult of a guardian or administrator; or

(b)the tribunal is given advice of the ending of an appointment under section 26 or 57.

(2)The registrar of the tribunal must take reasonable steps to advise the adult and any remaining guardians and administrators of the change, revocation or ending of the appointment.

32A   Additional requirements if change, revocation or ending of appointment and interest in land involved

(1)This section applies if—

(a)an administrator was appointed for a matter involving an interest in land; and

(b)either—

(i)the tribunal changes or revokes the appointment; or

(ii)the tribunal is given advice of the ending of the appointment under section 26 or 57.

(2)The registrar of the tribunal and any remaining administrator appointed for a matter involving an interest in land must, within 3 months of the change, revocation or ending of the appointment, advise the registrar of titles of the change, revocation or ending of the appointment.

(3)If the registrar of titles receives an advice, the registrar of titles must keep the information contained in the advice in a way that ensures a search of the relevant title reveals the order changing or revoking the appointment has been made or the advice mentioned in subsection (1)(b)(ii) has been given.

Division 3 Directions

32B   Directions to former guardian or administrator

(1)This section applies if an appointment as a guardian or administrator ends under section 26, 27 or 31.

(2)The tribunal may give directions to the former guardian or administrator that the tribunal considers necessary because of the ending of the appointment.

(3)The tribunal may give the directions to the former guardian or administrator—

(a)if the appointment ends under section 27—when the tribunal gives leave to withdraw as guardian or administrator for a matter; or

(b)if the appointment ends under section 31—when the tribunal revokes the order that made the appointment or makes an order removing the guardian or administrator; or

(c)in all cases—at any hearing of a proceeding relating to the adult for whom the person was formerly a guardian or administrator.

(4)However, the directions may relate only to a matter for which the former guardian or administrator was appointed immediately before the appointment ends.

Chapter 4    Functions and powers of guardians and administrators

Part 1    General functions and powers of guardian or administrator

33   Power of guardian or administrator

(1)Unless the tribunal orders otherwise, a guardian is authorised to do, in accordance with the terms of the guardian’s appointment, anything in relation to a personal matter that the adult could have done if the adult had capacity for the matter when the power is exercised.

(2)Unless the tribunal orders otherwise, an administrator is authorised to do, in accordance with the terms of the administrator’s appointment, anything in relation to a financial matter that the adult could have done if the adult had capacity for the matter when the power is exercised.

(3)For a guardian for a restrictive practice matter under chapter 5B, this section applies subject to sections 80ZE and 80ZF.

34   Apply principles

(1)A guardian or administrator must apply the general principles.

Note—

See section 11B.

(2)However, an administrator appointed under section 12A is not required to apply general principles 1, 3, 4, 7, 8 and 10(1) to (3) and (5).

(3)In making a health care decision, a guardian must also apply the health care principles.

35   Act honestly and with reasonable diligence

A guardian or administrator who may exercise power for an adult must exercise the power honestly and with reasonable diligence to protect the adult’s interests.

Maximum penalty—200 penalty units.

36   Act as required by terms of tribunal order

A guardian or administrator who may exercise power for an adult must, when exercising the power, exercise it as required by the terms of any order of the tribunal.

Maximum penalty—200 penalty units.

37   Avoid conflict transaction

(1)An administrator for an adult may enter into a conflict transaction only if the tribunal has authorised the transaction, conflict transactions of that type or conflict transactions generally.

Note—

See section 152 for the authorisation of conflict transactions by the tribunal.

(2)A conflict transaction is a transaction in which there may be conflict, or which results in conflict, between—

(a)the duty of an administrator towards the adult; and

(b)either—

(i)the interests of the administrator or a person in a close personal or business relationship with the administrator; or

(ii)another duty of the administrator.

Examples—

1A conflict transaction happens if an adult’s administrator buys the adult’s car.

2A conflict transaction happens if an adult’s administrator lends the adult’s money to a close friend of the administrator.

3A conflict transaction happens if an adult’s administrator rents the adult’s residential property to the administrator or a relative of the administrator.

4A conflict transaction happens if an adult’s administrator uses the adult’s money to pay the personal expenses of the administrator, including, for example, the administrator’s personal travel expenses.

5A conflict transaction happens if an adult’s administrator buys the adult’s house.

6A conflict transaction does not happen if an adult’s administrator is acting under section 55 to maintain the adult’s dependants.

(3)However, a transaction is not a conflict transaction merely because—

(a)the administrator is related to the adult; or

(b)the administrator may be a beneficiary of the adult’s estate on the adult’s death; or

(c)by the transaction the administrator in the administrator’s own right and on behalf of the adult—

(i)deals with an interest in property jointly held; or

(ii)acquires a joint interest in property; or

(iii)obtains a loan or gives a guarantee or indemnity in relation to a transaction mentioned in subparagraph (i) or (ii).

(4)Also, to remove any doubt, it is declared that the making of a gift or donation under section 54 is not a conflict transaction.

(5)A conflict transaction between an administrator and a person who does not know, or have reason to believe, the transaction is a conflict transaction is, in favour of the person, as valid as if the transaction were not a conflict transaction.

(6)In this section—

joint interest includes an interest as a joint tenant or tenant in common.

38   Multiple guardians or administrators are joint if not otherwise stated

Two or more guardians or administrators for a matter are appointed as joint guardians or joint administrators for the matter if the tribunal does not order otherwise.

39   Act together with joint guardians or administrators

(1)Guardians or administrators for an adult who may exercise power for a matter jointly must exercise the power unanimously.

(2)If it is impracticable or impossible to exercise the power unanimously, 1 or more of the guardians or administrators, or another interested person for the adult, may apply for directions to the tribunal.

40   Consult with adult’s other appointees or attorneys

(1)If there are 2 or more persons who are guardian, administrator or attorney for an adult, the persons must consult with one another on a regular basis to ensure the adult’s interests are not prejudiced by a breakdown in communication between them.

(2)However, failure to comply with subsection (1) does not affect the validity of an exercise of power by a guardian, administrator or attorney.

(3)In this section—

attorney means an attorney under an enduring document or a statutory health attorney.

41   Disagreement about matter other than health matter

(1)If—

(a)a guardian, administrator or attorney for an adult disagrees with another person who is a guardian, administrator or attorney for the adult about the way power for a matter, other than a health matter, should be exercised; and

(b)the disagreement can not be resolved by mediation by the public guardian;

the public guardian or any person mentioned in paragraph (a) may apply for directions to the tribunal.

(2)In this section—

attorney means an attorney under an enduring document.

42   Disagreement about health matter

(1)If there is a disagreement about a health matter for an adult and the disagreement can not be resolved by mediation by the public guardian, the public guardian may exercise power for the health matter.

(2)If the public guardian exercises power under subsection (1), the public guardian must advise the tribunal in writing of the following details—

(a)the name of the adult;

(b)an outline of the disagreement;

(c)the name of each guardian, attorney or eligible statutory health attorney involved in the disagreement;

(d)the decision made by the public guardian.

(3)In this section—

attorney means an attorney under an enduring document or a statutory health attorney.

disagreement about a health matter means—

(a)a disagreement between a guardian or attorney for an adult and another person who is a guardian or attorney for the adult about the way power for the health matter should be exercised; or

(b)a disagreement between or among 2 or more eligible statutory health attorneys for an adult about which of them should be the adult’s statutory health attorney or how power for the health matter should be exercised.

eligible statutory health attorneys are persons eligible to be an adult’s statutory health attorney under the Powers of Attorney Act 1998, section 63(1)(a), (b) or (c).

43   Acting contrary to general principles or health care principles

(1)If a guardian or attorney for a health matter for an adult—

(a)refuses to make a decision about the health matter for the adult and the refusal is contrary to the general principles or the health care principles; or

(b)makes a decision about the health matter for the adult and the decision is contrary to the general principles or the health care principles;

the public guardian may exercise power for the health matter.

(2)If the public guardian exercises power under this section, the public guardian must advise the tribunal in writing of the following details—

(a)the name of the adult;

(b)the name of the guardian or attorney;

(c)a statement as to why the refusal or decision is contrary to the general principles or the health care principles;

(d)the decision made by the public guardian.

(3)In this section—

attorney means an attorney under an enduring document or a statutory health attorney.

44   Right of guardian or administrator to information

(1)A guardian or administrator who has power for a matter for an adult has a right to all the information the adult would have been entitled to if the adult had capacity and which is necessary to make an informed exercise of the power.

(2)At the guardian’s or administrator’s request, a person who has custody or control of the information must give the information to the guardian or administrator, unless the person has a reasonable excuse.

(3)If a person who has custody or control of the information does not comply with a request by a guardian or administrator to give information, the tribunal may, on application by the guardian or administrator, order the person to give the information to the guardian or administrator.

(4)If the tribunal orders a person to give information to the guardian or administrator, the person must comply with the order, unless the person has a reasonable excuse.

(5)It is a reasonable excuse for a person to fail to give information because giving the information might tend to incriminate the person.

(6)Subject to subsection (5), this section overrides—

(a)any restriction, in an Act or the common law, about the disclosure or confidentiality of information; and

(b)any claim of confidentiality or privilege, including a claim based on legal professional privilege.

45   Execution of instrument etc.

(1)If necessary or convenient for the exercise of power given to a guardian or administrator (the appointee), the appointee may—

(a)execute an instrument with the appointee’s own signature or, if sealing is required or used, with the appointee’s own seal; and

(b)do any other thing in the appointee’s own name.

(2)An instrument executed by an appointee must be executed in a way showing the appointee executes it as guardian or administrator for the adult.

(3)An instrument executed, or thing done, in the way mentioned in this section is as effective as if executed or done by the adult—

(a)with the adult’s signature; or

(b)with the adult’s signature and seal; or

(c)in the adult’s name.

(4)This section applies subject to the Property Law Act 2023, section 52.

46   Implied power to execute a deed

If a tribunal order gives a guardian or administrator power to do a thing, the guardian or administrator is given power to execute a deed to do the thing.

47   Payment of expenses

A guardian or administrator for an adult is entitled to reimbursement from the adult of the reasonable expenses incurred in acting as guardian or administrator.

48   Remuneration of professional administrators

(1)An administrator for an adult is entitled to remuneration from the adult if the tribunal makes an order that the administrator is to be remunerated by the adult.

(2)The tribunal may make an order under subsection (1) only if the administrator carries on a business providing professional services.

(3)The remuneration may not be more than the amount the tribunal considers fair and reasonable, having regard to—

(a)the nature and complexity of the service; and

(b)the care, skill and specialised knowledge required to provide the service; and

(c)the responsibility displayed in providing the service; and

(d)the time within which the service was provided; and

(e)the place where, and the circumstances in which, the service was provided.

(4)Nothing in this section affects the right of the public trustee or a trustee company to remuneration or commission under another Act or the Corporations Act.

Part 2    Particular functions and powers of administrators

49   Keep records

(1)An administrator for an adult must—

(a)keep records that are reasonable in the circumstances; and

(b)if required by the tribunal—produce records of dealings and transactions involving the adult’s property that are reasonable for inspection at the time the tribunal decides.

Maximum penalty—100 penalty units.

(2)An administrator must also, if required by the tribunal—

(a)keep the records the tribunal decides; and

(b)produce the records for inspection at the time and in the way the tribunal decides.

Maximum penalty—100 penalty units.

50   Keep property separate

(1)An administrator for an adult must keep the administrator’s property separate from the adult’s property.

Maximum penalty—300 penalty units.

(2)Subsection (1) does not apply to property owned jointly by the adult and administrator.

(3)Subsection (1) does not affect another obligation imposed by law.

51   Power to invest and continue investments

(1)This section applies if an administrator for an adult has power to invest.

(2)The administrator may invest only in authorised investments.

(3)However, if, when the administrator is appointed, the adult had investments that were not authorised investments, the administrator may continue the investments, including by taking up rights to issues of new shares, or options for new shares, to which the adult becomes entitled by the adult’s existing shareholding.

52   [Repealed]

53   [Repealed]

54   Gifts and donations

(1)Unless the tribunal orders otherwise, an administrator for an adult may give away or donate the adult’s property only if—

(a)the gift or donation is—

(i)a gift or donation of the nature the adult made when the adult had capacity; or

(ii)a gift or donation of the nature the adult might reasonably be expected to make; and

(b)the value of the gift or donation is not more than what is reasonable having regard to all the circumstances and, in particular, the adult’s financial circumstances.

(2)The administrator or a charity with which the administrator has a connection is not precluded from receiving a gift or donation under subsection (1).

55   Maintain adult’s dependants

(1)An administrator for an adult may provide from the adult’s estate for the needs of a dependant of the adult.

(2)However, unless the tribunal orders otherwise, what is provided must not be more than what is reasonable having regard to all the circumstances and, in particular, the adult’s financial circumstances.

Part 3    Other provisions applying to guardians and administrators

56   Protection if unaware of change of appointee’s power

(1)This section applies if—

(a)the tribunal gives power for a matter to a guardian or administrator; and

(b)the power is changed.

(2)The guardian or administrator who, without knowing of the change, purports to exercise power for the matter does not incur any liability, either to the adult or anyone else, because of the change.

(3)A transaction between—

(a)the guardian or administrator who purports to exercise power for the matter; and

(b)a person who does not know of the change;

is, in favour of the person, as valid as if the power had not been changed.

(4)In this section—

change, of power for a matter, includes—

(a)suspension of power for the matter; and

(b)removal as guardian or administrator for the matter.

know, of a change of a power, includes—

(a)know of the happening of an event that changes the power; and

Note—

For an example of an event, an appointment ends if a guardian or administrator for an adult becomes a paid carer, or health provider, for the adult—see section 26 (Automatic revocation).

(b)have reason to believe the change has happened.

57   Advice of change of successive appointee

(1)This section applies if the tribunal appoints successive guardians or administrators so power is given to a particular appointee only when the power of a previous appointee ends.

(2)If the power of a previous appointee ends—

(a)the previous appointee must advise the next successive appointee of the ending of the previous appointment; and

(b)the next successive appointee must advise the tribunal in writing of the change as soon as practicable.

58   Relief from personal liability

(1)This section applies if the court considers—

(a)a guardian or administrator is, or may be, personally liable for a contravention of this Act; and

(b)the guardian or administrator has acted honestly and reasonably and ought fairly to be excused for the contravention.

(2)The court may relieve the guardian or administrator of all or part of the guardian’s or administrator’s personal liability for the contravention.

59   Compensation and accounting for profits for failure to comply

(1)The tribunal or a court may order a guardian or administrator for an adult (an appointee) to pay an amount to the adult or, if the adult has died, the adult’s estate—

(a)to compensate for a loss caused by the appointee’s failure to comply with this Act in the exercise of a power; or

(b)to account for any profits the appointee has accrued as a result of the appointee’s failure to comply with this Act in the exercise of a power.

(2)However, the tribunal or court may not order the appointee to make a payment under both subsection (1)(a) and (b) in relation to the same exercise of power.

(3)Subsection (1) applies even if the appointee is convicted of an offence in relation to the appointee’s failure.

(4)Also, subsection (1) applies even if the appointee’s appointment has ended.

(5)If the adult or appointee has died, an application for an order under subsection (1) must be made to the tribunal or a court within 6 months after the death.

(6)If the adult and appointee have died, an application for an order under subsection (1) must be made to the tribunal or a court within 6 months after the first death.

(7)The tribunal or a court may extend the application time.

(8)If security has been given under section 19 and the tribunal or a court makes an order under subsection (1), the tribunal or court may also order that the security be applied in satisfaction of the order.

(9)An amount paid under a tribunal or court order under subsection (1) must be taken into account in assessing damages in a later civil proceeding in relation to the appointee’s exercise of the power.

(10)In this section—

court means any court.

60   Power to apply to court for compensation for loss of benefit in estate

(1)This section applies if a person’s benefit in an adult’s estate under the adult’s will, on intestacy, or by another disposition taking effect on the adult’s death, is lost because of a sale or other dealing with the adult’s property by an administrator of the adult.

(2)This section applies even if the person whose benefit is lost is the administrator by whose dealing the benefit is lost.

(3)The person, or the person’s personal representative, may apply to the court for compensation out of the adult’s estate.

Editor’s note—

Court means the Supreme Court—see schedule 4 (Dictionary).

(4)The court may order that the person, or the person’s estate, be compensated out of the adult’s estate as the court considers appropriate, but the compensation must not be more than the value of the lost benefit.

(5)The Succession Act 1981, sections 41(2) to (8), (10) and (11) and 44 apply to an application and an order made on it as if the application were an application under part 4 of that Act by a person entitled to make an application.

60A   Effect on beneficiary’s interest if property dealt with by administrator

(1)This section applies to a person who is a beneficiary (the beneficiary) under a deceased adult’s will.

(2)The beneficiary has the same interest in any surplus money or other property (the proceeds) arising from a sale, mortgage, charge, disposition of, or other dealing with, property under the powers given to an administrator as the beneficiary would have had in the property sold, mortgaged, charged, disposed of or otherwise dealt with, if the sale, mortgage, charge, disposition or other dealing had not happened.

(3)The beneficiary is also entitled to—

(a)any money or other property that is able to be traced as income generated by the proceeds; and

(b)any capital gain that is generated from the proceeds.

(4)This section applies even if the beneficiary is the administrator who sold, mortgaged, charged, disposed of or otherwise dealt with the property.

(5)This section applies subject to any order made by the court under section 60C(1).

60B   Administrator not required to keep proceeds and property separate

Section 60A does not require an administrator for an adult who has sold, mortgaged, charged, disposed of, or otherwise dealt with, the adult’s property under the powers given to the administrator, to keep any surplus money or other property arising from the sale, mortgage, charge, disposition or other dealing separate from other property of the adult.

60C   Application to court to confirm or vary operation of s 60A

(1)An application may be made to the court for—

(a)an order, including an order to direct a conveyance, deed or other thing to be executed or done, to give effect to section 60A; or

(b)an order to ensure a beneficiary under the adult’s will does not gain an unjust and disproportionate advantage or suffer an unjust and disproportionate disadvantage of a kind not contemplated by the will because of the operation of section 60A.

(2)An application may be made by—

(a)a beneficiary under the adult’s will; or

(b)the personal representative of a deceased beneficiary under the adult’s will; or

(c)the personal representative of the adult.

(3)An order made under subsection (1)(b)—

(a)has effect as if it had been made as a codicil to the adult’s will executed immediately before the adult’s death; and

(b)applies despite any contrary operation of section 60A.

(4)An application under this section must be made to the court within 6 months after the adult’s death.

(5)The court may extend the application time.

(6)The Succession Act 1981, section 44(1) to (4) applies to an application and an order made on it as if the application were an application under part 4 of that Act by a person entitled to make an application.

Chapter 5    Health matters and special health matters

Part 1    Philosophy and purpose

61   Purpose to achieve balance for health care

This chapter seeks to strike a balance between—

(a)ensuring an adult is not deprived of necessary health care only because the adult has impaired capacity for a health matter or special health matter; and

(b)ensuring health care is given to the adult only if it is appropriate in all the circumstances.

Note—

See also the general principles and health care principles set out in sections 11B and 11C.

Part 2    Scheme for health care and special health care

Division 1 Health care—no consent

62   Division’s scope

This division deals with when health care, other than special health care, may be carried out without consent.

63   Urgent health care

(1)Health care, other than special health care, of an adult may be carried out without consent if the adult’s health provider reasonably considers—

(a)the adult has impaired capacity for the health matter concerned; and

(b)either—

(i)the health care should be carried out urgently to meet imminent risk to the adult’s life or health; or

(ii)the health care should be carried out urgently to prevent significant pain or distress to the adult and it is not reasonably practicable to get consent from a person who may give it under this Act or the Powers of Attorney Act 1998.

(2)However, the health care mentioned in subsection (1)(b)(i) may not be carried out without consent if the health provider knows the adult objects to the health care in an advance health directive.

(3)However, the health care mentioned in subsection (1)(b)(ii) may not be carried out without consent if the health provider knows the adult objects to the health care unless—

(a)the adult has minimal or no understanding of 1 or both of the following—

(i)what the health care involves;

(ii)why the health care is required; and

(b)the health care is likely to cause the adult—

(i)no distress; or

(ii)temporary distress that is outweighed by the benefit to the adult of the health care.

(4)The health provider must certify in the adult’s clinical records as to the various things enabling the health care to be carried out because of this section.

(5)In this section—

health care, of an adult, does not include withholding or withdrawal of a life-sustaining measure for the adult.

63A   Life-sustaining measure in an acute emergency

(1)A life-sustaining measure may be withheld or withdrawn for an adult without consent if the adult’s health provider reasonably considers—

(a)the adult has impaired capacity for the health matter concerned; and

(b)the commencement or continuation of the measure for the adult would be inconsistent with good medical practice; and

(c)consistent with good medical practice, the decision to withhold or withdraw the measure must be taken immediately.

(2)However, the measure may not be withheld or withdrawn without consent if the health provider knows the adult objects to the withholding or withdrawal.

Editor’s note—

Object is defined in schedule 4 (Dictionary).

(3)The health provider must certify in the adult’s clinical records as to the various things enabling the measure to be withheld or withdrawn because of this section.

(4)For this section, artificial nutrition and hydration is not a life-sustaining measure.

64   Minor, uncontroversial health care

(1)Health care, other than special health care, of an adult may be carried out without consent if the adult’s health provider—

(a)reasonably considers the adult has impaired capacity for the health matter concerned; and

(b)reasonably considers the health care is—

(i)necessary to promote the adult’s health and wellbeing; and

(ii)of the type that will best promote the adult’s health and wellbeing; and

(iii)minor and uncontroversial; and

(c)does not know, and can not reasonably be expected to know, of—

(i)a decision about the health care made by a person who is able to make the decision under this Act or the Powers of Attorney Act 1998; or

(ii)any dispute among persons the health provider reasonably considers have a sufficient and continuing interest in the adult about—

(A)the carrying out of the health care; or

(B)the capacity of the adult for the health matter.

Examples of minor and uncontroversial health care mentioned in paragraph (b)(iii)—

•the administration of an antibiotic requiring a prescription

•the administration of a tetanus injection

(2)However, the health care may not be carried out without consent if the health provider knows, or could reasonably be expected to know, the adult objects to the health care.

(3)The health provider must certify in the adult’s clinical records as to the various things enabling the health care to be carried out because of this section.

Division 2 Health care and special health care—consent

65   Adult with impaired capacity—order of priority in dealing with special health matter

(1)If an adult has impaired capacity for a special health matter, the matter may only be dealt with under the first of the following subsections to apply.

(2)If the adult has made an advance health directive giving a direction about the matter, the matter may only be dealt with under the direction.

(3)If subsection (2) does not apply and an entity other than the tribunal is authorised to deal with the matter, the matter may only be dealt with by the entity.

(4)If subsections (2) and (3) do not apply and the tribunal has made an order about the matter, the matter may only be dealt with under the order.

Note—

However, the tribunal may not consent to electroconvulsive therapy or a non-ablative neurosurgical procedure—see section 68(1).

66   Adult with impaired capacity—order of priority in dealing with health matter

(1)If an adult has impaired capacity for a health matter, the matter may only be dealt with under the first of the following subsections to apply.

(2)If the adult has made an advance health directive giving a direction about the matter, the matter may only be dealt with under the direction.

(3)If subsection (2) does not apply and the tribunal has appointed 1 or more guardians for the matter or made an order about the matter, the matter may only be dealt with by the guardian or guardians or under the order.

Note—

If, when appointing the guardian or guardians, the tribunal was unaware of the existence of an enduring document giving power for the matter to an attorney, see section 23 (Appointment without knowledge of enduring document), particularly subsection (2).

(4)If subsections (2) and (3) do not apply and the adult has made 1 or more enduring documents appointing 1 or more attorneys for the matter, the matter may only be dealt with by the attorney or attorneys for the matter appointed by the most recent enduring document.

(5)If subsections (2) to (4) do not apply, the matter may only be dealt with by the statutory health attorney.

(6)This section does not apply to a health matter relating to health care that may be carried out without consent under division 1.

66A   When consent to withholding or withdrawal of life-sustaining measure may operate

(1)This section applies if a matter concerning the withholding or withdrawal of a life-sustaining measure is to be dealt with under section 66(3), (4) or (5).

Note—

If a matter concerning the withholding or withdrawal of a life-sustaining measure is to be dealt with under section 66(2), see the Powers of Attorney Act 1998, section 36(2) (Operation of advance health directive) as to when a direction to withhold or withdraw a life-sustaining measure can operate.

(2)A consent to the withholding or withdrawal of a life-sustaining measure for the adult can not operate unless the adult’s health provider reasonably considers the commencement or continuation of the measure for the adult would be inconsistent with good medical practice.

66B   Certificate in clinical records if life-sustaining measure withheld or withdrawn

(1)This section applies if a life-sustaining measure is withheld or withdrawn for an adult other than because of section 63A.

(2)The adult’s health provider must certify in the adult’s medical records as to the various things enabling the measure to be withheld or withdrawn because of—

(a)for a withholding or withdrawal under a direction in the adult’s advance health directive—section 66(2) and the Powers of Attorney Act 1998, section 36; or

(b)for a withholding or withdrawal by consent—section 66(3), (4) or (5) and section 66A.

67   Effect of adult’s objection to health care

(1)Generally, the exercise of power for a health matter or special health matter is ineffective to give consent to health care of an adult if the health provider knows, or ought reasonably to know, the adult objects to the health care.

Note—

Object is defined in schedule 4 (Dictionary). Note also the Powers of Attorney Act 1998, section 35(2)(a) (Advance health directives) provides that ‘by an advance health directive [a] principal may give a direction—

(a)consenting, in the circumstances specified, to particular future health care of the principal when necessary and despite objection by the principal when the health care is provided’.

(2)However, the exercise of power for a health matter or special health matter is effective to give consent to the health care despite an objection by the adult to the health care if—

(a)the adult has minimal or no understanding of 1 of the following—

(i)what the health care involves;

(ii)why the health care is required; and

(b)the health care is likely to cause the adult—

The chief executive may approve forms for use under this Act.

252   Regulation-making power

The Governor in Council may make regulations under this Act.

Chapter 12    Transitional provisions and repeal

Part 1    Transitional provisions for adult guardian

253   Definition for pt 1

In this part—

repealed chapter means the Powers of Attorney Act 1998, chapter 7.

254   Appointment of adult guardian continues

From the repeal of the repealed chapter, the person holding office as adult guardian immediately before the repeal of the repealed chapter continues in office for the balance of the person’s term as the adult guardian appointed under section 199.

255   Particular things continued

From the repeal of the repealed chapter, a thing done under a provision of the repealed chapter mentioned in column 1 and in force immediately before the repeal of the repealed chapter continues to have effect after the repeal as a thing done under the corresponding provision of this Act mentioned in column 2.

Column 1—provisions of the repealed chapter	Column 2—corresponding provision in this Act
section 130	section 177
section 131	section 178
section 132	section 179
section 134	section 180
section 135	section 182
section 136	section 183
section 137	sections 184 and 185
section 138	section 189
section 142	section 193
section 143	section 194
section 144	sections 195 and 196
section 145	sections 148 and 197
section 146	section 149
section 149	section 151
section 154	section 204

Example—

A notice given by the adult guardian under the Powers of Attorney Act 1998, section 144 suspending operation of an attorney’s power and that is in force immediately before the repeal of the repealed chapter continues to have effect after the repeal for the remainder of the suspension period as a suspension under section 195 of this Act. Section 196 of this Act applies during the suspension.

Part 2    Transitional provisions for committee

256   Power to apply to court for compensation for loss of benefit in estate because of committee

(1)If a person’s benefit in an adult’s estate under the adult’s will, on intestacy, or by another disposition taking effect on the adult’s death, is lost because of a sale or other dealing with the adult’s property by a committee of the adult, section 60 applies as if references in the section to an administrator were references to the committee.

(2)Subsection (1) applies whether the sale or other dealing happens before or after the commencement of this section.

257   Tribunal’s power if committee

If a committee for a person continues after the commencement of this section, the tribunal may make an order setting aside the committee and may make any other appropriate order.

Part 3    Transitional provisions for, and repeal of, Intellectually Disabled Citizens Act 1985

258   Definition for pt 3

In this part—

repealed Act means the Intellectually Disabled Citizens Act 1985.

259   Adult guardian assumes legal friend responsibilities

(1)If, immediately before the repeal of the repealed Act, the legal friend is authorised to act, or is acting, under section 26 of the repealed Act for a person—

(a)the adult guardian is taken to have been authorised to act for the person under section 26 of the repealed Act; and

(b)the repealed Act applies to the adult guardian as if references to the legal friend were references to the adult guardian and the repealed Act had not been repealed.

(2)The adult guardian’s authority under subsection (1) ends if the adult guardian receives a written request from the person’s administrator that the adult guardian no longer act under the authority.

260   Management by public trustee

(1)If, immediately before the repeal of the repealed Act, the public trustee manages a person’s estate under section 32(1) and (2) of the repealed Act, then, on the repeal of the repealed Act the public trustee is taken to be appointed by the tribunal as the person’s administrator for all financial matters.

(2)If, immediately before the repeal of the repealed Act, the public trustee manages a person’s estate under section 32(1A) and (2) of the repealed Act, then, on the repeal of the repealed Act, the public trustee is taken to be appointed by the tribunal as the person’s administrator for all financial matters.

261   Council records to be given to tribunal

The records of the Intellectually Disabled Citizens Council of Queensland constituted under the repealed Act are to become the records of the tribunal.

262   Repeal

The Intellectually Disabled Citizens Act 1985 is repealed.

Part 4    Transitional provision for Guardianship and Administration and Powers of Attorney Amendment Act 2001

262A   Protection for health provider

(1)This section applies if—

(a)an adult’s health provider withheld or withdrew a life-sustaining measure for the adult on or after 1 July 2000 and before the commencement of this section; and

(b)at the time the measure was withheld or withdrawn the health provider reasonably considered—

(i)the adult had impaired capacity for the health matter concerned; and

(ii)the commencement or continuation of the measure for the adult would have been inconsistent with good medical practice.

(2)The withholding or withdrawal of the measure is taken—

(a)for section 79—to have been health care for which consent was properly given under this Act; and

(b)for section 80—to have been health care authorised by this Act.

Part 5    Transitional provision for Discrimination Law Amendment Act 2002

262B   Application of amendments made by Discrimination Law Amendment Act 2002

(1)This section applies for the reference to a community visitor’s spouse in section 231(7) if—

(a)the community visitor was appointed before the commencement of the Acts Interpretation Act 1954, section 32DA (section 32DA); and

(b)the spouse was, immediately before the commencement, a de facto partner of the person as defined under section 32DA.

(2)While the spouse continues to be a de facto partner of the person, section 231(7) does not apply for the spouse.

(3)However, subsection (2) applies only for the person’s term of holding office as a community visitor that was current at the commencement of section 32DA.

Part 6    Transitional provisions for Guardianship and Administration and Other Acts Amendment Act 2003

262C   Application of amended s 29 to reviews of existing appointments

Section 29, as in force after the commencement of this section (the commencement), applies in relation to an appointment of a guardian or administrator made before the commencement.

262D   Effect of contravention of repealed ss 52 and 53

(1)This section applies if, before the commencement of this section (the commencement), an administrator contravened section 52 or 53 as in force before the commencement.

(2)For the purposes of deciding whether the administrator is no longer competent, the contravention may be taken into account as a contravention of the Act as if the Guardianship and Administration Act and Other Acts Amendment Act 2003, section 12 had not been enacted.

Note—

For examples of when an administrator is not competent, see section 31(5)(d) (Appointment review process), 155(2)(c) (Suspension of guardianship order or administration order) or 195(2)(c) (Suspension of attorney’s power).

262E   Person given notice of hearing able to become active party

(1)This section applies if before the commencement of this section (the commencement)—

(a)a person is given a notice under section 118 as in force immediately before the commencement; and

(b)the person had not, under section 120 as in force immediately before the commencement (the repealed section), given the tribunal a notice as permitted under the repealed section.

(2)After the commencement—

(a)the repealed section continues to apply in relation to the person as if it had not been repealed; and

(b)if the person gives the tribunal a notice as permitted under the repealed section, the person is taken to be an active party in the proceeding.

262F   Interim orders

(1)This section applies in relation to an interim order made before the commencement of this section (the commencement) under section 129.

(2)Section 129, as in force immediately before the commencement, continues to apply in relation to the order as if the Guardianship and Administration Act and Other Acts Amendment Act 2003, section 27 had not been enacted.

Part 7    Transitional provisions for Justice and Other Legislation Amendment Act 2007

263   Directions to former guardian or administrator

Section 32B also applies if an appointment mentioned in section 32B(1) ended before the commencement of this section.

264   Interim orders

An interim order made under section 129 before the commencement of this section continues to have effect for the period specified in the order.

Part 8    Transitional provisions for Disability Services and Other Legislation Amendment Act 2008

265   Powers of guardians—use of restrictive practices

(1)This section applies to a guardian for an adult to whom chapter 5B applies if the guardian was—

(a)appointed before the commencement; and

(b)immediately before the commencement, authorised in accordance with the terms of the guardian’s appointment to make decisions for the adult about the use of a restrictive practice in relation to the adult.

(2)Despite chapter 5B, the guardian may continue to make decisions for the adult about use of the restrictive practice in relation to the adult.

(3)This section stops applying on the earlier of—

(a)the guardian’s appointment being reviewed by the tribunal; or

(b)the first day after the transitional period ends.

(4)In this section—

commencement means the commencement of this section.

restrictive practice see section 80U.

transitional period means the period starting on the commencement and ending 27 months after the commencement.

266   Short term approvals not to be given during transitional period

(1)Chapter 5B, part 4 does not apply during the transitional period.

(2)In this section—

transitional period means the period starting on 1 July 2008 and ending on the date of assent of the Criminal History Screening Legislation Amendment Act 2010.

Part 9    Transitional provision for Guardianship and Administration and Other Acts Amendment Act 2008

267   Directions to former attorney

Section 138AA also applies in relation to a person whose appointment as attorney for a matter ended before the commencement of this section.

Part 10    Transitional provision for Fair Work (Commonwealth Powers) and Other Provisions Act 2009

268   Remuneration of professional administrators

(1)This section applies if the tribunal orders, before the commencement, that an administrator for an adult as mentioned in section 48(1) is entitled to remuneration from the adult.

(2)Repealed section 48(2) continues to apply, despite its repeal, in relation to the remuneration, until the tribunal makes a further order about the administrator’s remuneration.

(3)In this section—

commencement means the commencement of this section.

repealed section 48(2) means section 48(2) as it existed before its repeal by the Fair Work (Commonwealth Powers) and Other Provisions Act 2009.

Part 11    Transitional provision for State Penalties Enforcement and Other Legislation Amendment Act 2009

269   Declaration and validation concerning particular reviews under s 29

(1)During the transitional period, section 29 is taken always to have applied in relation to a review of an appointment of an administrator for an adult as if the amendment of that section by the State Penalties Enforcement and Other Legislation Amendment Act 2009, section 216 had commenced on 1 July 2008.

(2)In this section—

transitional period means the period starting at the beginning of 1 July 2008 and ending at the end of the day before the commencement of the amendment.

Part 12    Transitional and validation provisions for Guardianship and Administration and Other Legislation Amendment Act 2019

270   Definition for part

In this part—

amendment Act means the Guardianship and Administration and Other Legislation Amendment Act 2019.

271   Obligation of registrar of titles

Sections 21(2), 27(3) and 32A(3), as amended by the amendment Act, apply only in relation to an advice received by the registrar after the commencement.

272   Application of ss 60A–60C

Sections 60A to 60C apply—

(a)in relation to the will of an adult who dies after the commencement; and

(b)regardless of whether the sale, mortgage, charge, disposition of, or other dealing with, property by the administrator happened before or after the commencement.

273   Validation of delegation

(1)This section applies to a delegation by the public trustee of a power of a type described in, and to a person mentioned in, section 250A before the commencement.

(2)The delegation is taken to be, and always to have been, as valid and effective as it would have been if it were made after the commencement of section 250A.

274   Existing proceedings

(1)This section applies if, immediately before the commencement, a proceeding under this Act had been started but not finished.

(2)The proceeding is to continue as if the amendment Act had not been enacted.

Part 13    [Expired]

275   [Expired]

Schedule 1 [Repealed]

Part 1    [Repealed]

1   

2   

3   

4   

5   

6   

7   

8   

9   

10   

11   

Part 2    [Repealed]

12   

Schedule 2 Types of matters

schedule 4

Part 1    Financial matter

1   Financial matter

A financial matter, for an adult, is a matter relating to the adult’s financial or property matters, including, for example, a matter relating to 1 or more of the following—

(a)paying maintenance and accommodation expenses for the adult and the adult’s dependants, including, for example, purchasing an interest in, or making another contribution to, an establishment that will maintain or accommodate the adult or a dependant of the adult;

(b)paying the adult’s debts, including any fees and expenses to which an administrator is entitled under a document made by the adult or under a law;

(c)receiving and recovering money payable to the adult;

(d)carrying on a trade or business of the adult;

(e)performing contracts entered into by the adult;

(f)discharging a mortgage over the adult’s property;

(g)paying rates, taxes, insurance premiums or other outgoings for the adult’s property;

(h)insuring the adult or the adult’s property;

(i)otherwise preserving or improving the adult’s estate;

(j)investing for the adult in authorised investments;

(k)continuing investments of the adult, including taking up rights to issues of new shares, or options for new shares, to which the adult becomes entitled by the adult’s existing shareholding;

(l)undertaking a real estate transaction for the adult;

(m)dealing with land for the adult under the Land Act 1994 or Land Title Act 1994;

(n)undertaking a transaction for the adult involving the use of the adult’s property as security (for example, for a loan or by way of a guarantee) for an obligation the performance of which is beneficial to the adult;

(o)a legal matter relating to the adult’s financial or property matters;

(p)withdrawing money from, or depositing money into, the adult’s account with a financial institution.

Part 2    Personal matter

2   Personal matter

A personal matter, for an adult, is a matter, other than a special personal matter or special health matter, relating to the adult’s care, including the adult’s health care, or welfare, including, for example, a matter relating to 1 or more of the following—

(a)where the adult lives;

(b)with whom the adult lives;

(ba)services provided to the adult;

(c)whether the adult works and, if so, the kind and place of work and the employer;

(d)what education or training the adult undertakes;

(e)whether the adult applies for a licence or permit;

(f)day-to-day issues, including, for example, diet and dress;

(g)health care of the adult;

(h)whether to consent to a forensic examination of the adult;

Note—

See also section 248A (Protection for person carrying out forensic examination with consent).

(i)a legal matter not relating to the adult’s financial or property matter;

(j)a restrictive practice matter under chapter 5B;

(k)seeking help and making representations about the use of restrictive practices for an adult who is the subject of a containment or seclusion approval under chapter 5B;

(l)who may have access visits to, or other contact with, the adult;

(m)advocacy relating to the care and welfare of the adult.

3   Special personal matter

A special personal matter, for an adult, is a matter relating to 1 or more of the following—

(a)making or revoking the adult’s will;

(b)making or revoking a power of attorney, enduring power of attorney or advance health directive of the adult;

(c)exercising the adult’s right to vote in a Commonwealth, State or local government election or referendum;

(d)consenting to adoption of a child of the adult under 18 years;

(e)consenting to marriage of the adult;

(f)consenting to the adult entering into a civil partnership;

(g)consenting to the adult terminating a civil partnership;

(h)entering into, or agreeing to enter into, a surrogacy arrangement under the Surrogacy Act 2010;

(i)consenting to the making or discharge of a parentage order under the Surrogacy Act 2010;

(j)entering a plea on a criminal charge for the adult;

(k)applying, or consenting to an application, for a cultural recognition order or applying for a discharge order under the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020;

(l)applying to alter the record of sex of the adult in the relevant child register under the Births, Deaths and Marriages Registration Act 2023;

(m)applying to alter the record of sex of a child of the adult in the relevant child register under the Births, Deaths and Marriages Registration Act 2023;

(n)applying for a recognised details certificate for the adult under the Births, Deaths and Marriages Registration Act 2023;

(o)applying for a recognised details certificate for a child of the adult under the Births, Deaths and Marriages Registration Act 2023.

Note—

An attorney under an enduring document or a guardian may not be given power for a special personal matter.

4   Health matter

A health matter, for an adult, is a matter relating to health care, other than special health care, of the adult.

5   Health care

(1)Health care, of an adult, is care or treatment of, or a service or a procedure for, the adult—

(a)to diagnose, maintain, or treat the adult’s physical or mental condition; and

(b)carried out by, or under the direction or supervision of, a health provider.

(2)Health care, of an adult, includes withholding or withdrawal of a life-sustaining measure for the adult if the commencement or continuation of the measure for the adult would be inconsistent with good medical practice.

(3)Health care, of an adult, does not include—

(a)first aid treatment; or

(b)a non-intrusive examination made for diagnostic purposes; or

(c)the administration of a pharmaceutical drug if—

(i)a prescription is not needed to obtain the drug; and

(ii)the drug is normally self-administered; and

(iii)the administration is for a recommended purpose and at a recommended dosage level; or

(d)psychosurgery for the adult.

Example of paragraph (b)—

a visual examination of an adult’s mouth, throat, nasal cavity, eyes or ears

5A   Life-sustaining measure

(1)A life-sustaining measure is health care intended to sustain or prolong life and that supplants or maintains the operation of vital bodily functions that are temporarily or permanently incapable of independent operation.

(2)Without limiting subsection (1), each of the following is a life-sustaining measure—

(a)cardiopulmonary resuscitation;

(b)assisted ventilation;

(c)artificial nutrition and hydration.

(3)A blood transfusion is not a life-sustaining measure.

5B   Good medical practice

Good medical practice is good medical practice for the medical profession in Australia having regard to—

(a)the recognised medical standards, practices and procedures of the medical profession in Australia; and

(b)the recognised ethical standards of the medical profession in Australia.

6   Special health matter

A special health matter, for an adult, is a matter relating to special health care of the adult.

Note—

An attorney under an enduring document or a guardian may not be given power for a special health matter.

However, an adult may give a direction about a special health matter in an advance health directive. Alternatively, in particular circumstances the tribunal may consent to particular special health care—see section 68.

7   Special health care

Special health care, of an adult, is health care of the following types—

(a)removal of tissue from the adult while alive for donation to someone else;

Note—

For the situation after the adult has died, see the Transplantation and Anatomy Act 1979, particularly section 22.

(b)sterilisation of the adult;

(c)termination of a pregnancy of the adult;

(d)participation by the adult in special medical research or experimental health care;

(e)electroconvulsive therapy or a non-ablative neurosurgical procedure for the adult;

(f)prescribed special health care of the adult.

8   Removal of tissue for donation

(1)For an adult, removal of tissue for donation to someone else includes removal of tissue from the adult so laboratory reagents, or reference and control materials, derived completely or partly from pooled human plasma may be given to the other person.

(2)Tissue is—

(a)an organ, blood or part of a human body; or

(b)a substance that may be extracted from an organ, blood or part of a human body.

9   Sterilisation

(1)Sterilisation is health care of an adult who is, or is reasonably likely to be, fertile that is intended, or reasonably likely, to make the adult, or ensure the adult is, permanently infertile.

Examples of sterilisation—

endometrial oblation, hysterectomy, tubal ligation and vasectomy

(2)Sterilisation does not include health care primarily to treat organic malfunction or disease of the adult.

10   Termination

Termination, of a pregnancy of an adult, does not include health care primarily to treat organic malfunction or disease of the adult.

11   Primary reason for treatment

Health care primarily to treat organic malfunction or disease, of an adult, is health care without which an organic malfunction or disease of the adult is likely to cause serious or irreversible damage to the adult’s physical health.

Examples—

1Health care involving sterilisation may be primarily to treat organic malfunction or disease if the adult has cancer affecting the reproductive system or cryptorchidism.

2A procedure involving termination of a pregnancy may be primarily to treat organic malfunction if the adult is a pregnant woman requiring abdominal surgery for injuries sustained in an accident.

12   Special medical research or experimental health care

(1)Special medical research or experimental health care, for an adult, means—

(a)medical research or experimental health care relating to a condition the adult has or to which the adult has a significant risk of being exposed; or

(b)medical research or experimental health care intended to gain knowledge that can be used in the diagnosis, maintenance or treatment of a condition the adult has or has had.

(2)Special medical research or experimental health care does not include—

(a)psychological research; or

(b)approved clinical research.

13   [Repealed]

14   Electroconvulsive therapy

Electroconvulsive therapy is the application of electric current to specific areas of the head to produce a generalised seizure that is modified by general anaesthesia and the administration of a muscle relaxing agent.

15   Psychosurgery

Psychosurgery is a procedure on the brain, that involves deliberate damage to or removal of brain tissue, for the treatment of a mental illness.

15A   Non-ablative neurosurgical procedure

A non-ablative neurosurgical procedure is a procedure on the brain, that does not involve deliberate damage to or removal of brain tissue, for the treatment of a mental illness.

16   [Repealed]

17   Prescribed special health care

Prescribed special health care means health care prescribed under a regulation for this section.

Part 3    Legal matter

18   Legal matter

A legal matter, for an adult, includes a matter relating to—

(a)use of legal services to obtain information about the adult’s legal rights; and

(b)use of legal services to undertake a transaction; and

(c)use of legal services to bring or defend a proceeding before a court, tribunal or other entity, including an application under the Succession Act 1981, part 4 or an application for compensation arising from a compulsory acquisition; and

Note—

The Succession Act 1981, part 4 enables the Supreme Court to make provision for a dependant of a deceased person from the deceased person’s estate if adequate provision is not made from the estate for the dependant’s proper maintenance and support.

(d)bringing or defending a proceeding, including settling a claim, whether before or after the start of a proceeding.

Schedule 4 Dictionary

section 3

abuse, for power, includes contravene this Act in relation to the power.

active party—

(a)for chapter 5A, see section 80K; or

(b)for chapter 5B, see section 80U; or

(c)otherwise, see section 119.

administrator means an administrator appointed under this Act.

adult, for chapter 7 provisions applied under section 80E, means a child with an impairment.

adult evidence order see section 106.

adult guardian ...

adult guardian’s delegate for an investigation ...

adult with an intellectual or cognitive disability, for chapter 5B, see section 80U.

advance health directive means an advance health directive under the Powers of Attorney Act 1998.

alternative forms of health care, for chapter 5A, see section 80A.

approved clinical research see section 74B.

approved form means a form approved under section 251.

assessment, for chapter 5B, see section 80U.

Australian lawyer has the meaning given by the Legal Profession Act 2007.

authorised investment means—

(a)an investment which, if the investment were of trust funds by a trustee, would be an investment by the trustee exercising a power of investment under the Trusts Act 1973, part 3; or

(b)an investment approved by the tribunal.

authorised psychiatrist, for chapter 5B, see section 80U.

authorised real estate transaction ...

authorised security transaction ...

capacity, for a person for a matter, means the person is capable of—

(a)understanding the nature and effect of decisions about the matter; and

(b)freely and voluntarily making decisions about the matter; and

(c)communicating the decisions in some way.

Note—

Under section 146(3) in deciding whether an individual is capable of communicating decisions in some way the tribunal must investigate the use of all reasonable ways of facilitating communication, which may include symbol boards or signing.

chapter 5A application, for chapter 5A, see section 80A.

chemical restraint, for chapter 5B, see section 80U.

chemical restraint (fixed dose), for chapter 5B, see section 80U.

chief executive (disability services) means the chief executive of the department in which the Disability Services Act 2006 is administered.

chief psychiatrist see the Mental Health Act 2016, schedule 3.

child representative, for chapter 5A, see section 80L.

clinical research see section 74A.

close friend, of a person, means another person who has a close personal relationship with the first person and a personal interest in the first person’s welfare.

closure order see section 107.

community access services, for chapter 5B, see section 80U.

community visitor ...

complaint, for chapter 10, see section 222.

confidential information—

(a)for chapter 9, part 1, see section 207A; or

(b)for chapter 11, part 4, see section 246.

confidentiality order see section 109.

conflict transaction see section 37(2).

consultant, for chapter 11, part 4, see section 246.

consumer, for chapter 10, see section 222.

contain, for chapter 5B, see section 80U.

containment or seclusion approval, for chapter 5B, see section 80U.

court means the Supreme Court.

criminal history, of a person, means—

(a)the person’s criminal record within the meaning of the Criminal Law (Rehabilitation of Offenders) Act 1986; and

(b)despite the Criminal Law (Rehabilitation of Offenders) Act 1986, section 6, any conviction of the person to which that section applies; and

(c)charges made against the person for an offence committed in Queensland or elsewhere and results of those charges; and

(d)a finding of guilt against the person, or the acceptance of a plea of guilty by the person, by a court.

dependant, of an adult, means a person who is completely or mainly dependent on the adult.

deputy president means a deputy president of the tribunal.

director of forensic disability see section 80U.

director of mental health ...

disability services, for chapter 5B, see section 80U.

dispute resolution ...

document, for chapter 7, part 1, see section 99.

DSA ...

electroconvulsive therapy see schedule 2, section 14.

enduring document means an enduring power of attorney or an advance health directive.

enduring power of attorney means an enduring power of attorney under the Powers of Attorney Act 1998.

ethics committee means—

(a)a Human Research Ethics Committee registered by the Australian Health Ethics Committee established under the National Health and Medical Research Council Act 1992 (Cwlth); or

(b)if there is no committee mentioned in paragraph (a)—

(i)an ethics committee established by a public sector hospital within the meaning of the Hospital and Health Boards Act 2011; or

(ii)an ethics committee established by a university and concerned, wholly or partly, with medical research; or

(iii)an ethics committee established by the National Health and Medical Research Council.

financial management plan means—

(a)for an administrator—a document stating how the administrator plans to manage the administration; and

(b)for an attorney who may exercise power for a financial matter—a document stating how the attorney plans to manage exercising the power.

financial matter see schedule 2, section 1.

forensic disability client see section 80U.

forensic disability service see section 80U.

forensic examination of an adult means a medical or dental procedure for the adult that is carried out for forensic purposes, other than because the adult is suspected of having committed a criminal offence.

Note—

For procedures in relation to an adult suspected of having committed an indictable offence, see the Police Powers and Responsibilities Act 2000, chapter 17 (Forensic procedures), part 3 (Forensic procedure orders).

general principles see section 11B.

good medical practice see schedule 2, section 5B.

guardian means a guardian appointed under this Act.

guardianship proceeding—

(a)means—

(i)a proceeding under this Act before the tribunal; or

(ii)a hearing, conference or interlocutory matter before the tribunal taken in connection with or incidental to a proceeding before the tribunal; or

(iii)a proceeding in which the court is exercising concurrent jurisdiction with the tribunal; but

(b)does not include a proceeding in which the court is exercising the powers of the tribunal under section 245.

harm, for chapter 5B, see section 80U.

health care—

(a)for chapter 5A, see section 80A; or

(b)otherwise, see schedule 2, section 5.

health care primarily to treat organic malfunction or disease see schedule 2, section 11.

health care principle ...

health care principles see section 11C.

health information, for chapter 7, part 1, see section 99.

health matter see schedule 2, section 4.

health provider means a person who provides health care, or special health care, in the practice of a profession or the ordinary course of business.

Example—

dentist

impaired capacity, for a person for a matter, means the person does not have capacity for the matter.

impairment, for chapter 5A, see section 80A.

informal decision-maker, for chapter 5B, see section 80U.

information, for chapter 9, part 1, see section 207A.

insolvent includes external administration, for example, liquidation, receivership or compromise entered into with creditors, under the Corporations Act or a similar law of a foreign jurisdiction.

interested person, for another person, means a person who has a sufficient and genuine concern for the rights and interests of the other person.

least restrictive, for chapter 5B, see section 80U.

legal matter see schedule 2, section 18.

legal member means a legally qualified member of the tribunal under the QCAT Act.

life-sustaining measure see schedule 2, section 5A.

limitation order see section 100.

matter includes a type of matter.

mechanical restraint ...

member, of the tribunal, means a member of the tribunal under the QCAT Act.

non-ablative neurosurgical procedure see schedule 2, section 15A.

non-publication order see section 108.

normal hours, for chapter 10, see section 222.

object, by an adult, to health care means—

(a)the adult indicates the adult does not wish to have the health care; or

(b)the adult previously indicated, in similar circumstances, the adult did not then wish to have the health care and since then the adult has not indicated otherwise.

Example—

An indication may be given in an enduring power of attorney or advance health directive or in another way, including, for example, orally or by conduct.

ordinary member, of the tribunal, means an ordinary member of the tribunal under the QCAT Act.

paid carer, for an adult, means someone who—

(a)performs services for the adult’s care; and

(b)receives remuneration from any source for the services, other than—

(i)a carer payment or other benefit received from the Commonwealth or a State for providing home care for the adult; or

(ii)remuneration attributable to the principle that damages may be awarded by a court for voluntary services performed for the adult’s care.

personal experience member ...

personal matter see schedule 2, section 2.

physical restraint ...

positive behaviour support plan, for chapter 5B, see section 80U.

power, for a matter, means power to make all decisions about the matter and otherwise exercise the power.

power of attorney means—

(a)a general power of attorney made under the Powers of Attorney Act 1998; or

(b)an enduring power of attorney; or

(c)a power of attorney made otherwise than under the Powers of Attorney Act 1998, whether before or after its commencement.

prescribed non-contentious matter ...

prescribed special health care see schedule 2, section 17.

president means the president of the tribunal.

presidential directions ...

presiding member, for a proceeding, means the member presiding at the proceeding as provided for under the QCAT Act.

primary carer, for a person, means a person who is primarily responsible for providing support or care to the other person.

private dwelling house, for chapter 10, see section 222.

professional member ...

psychosurgery see schedule 2, section 15.

public advocate means the public advocate appointed under section 213.

public guardian means the public guardian under the Public Guardian Act 2014.

public guardian’s delegate for an investigation, for chapter 11, part 4, see section 246.

real estate transaction means a transaction involving the sale or purchase of real property.

reasonably considers means considers on grounds that are reasonable in the circumstances.

recognised provision, for chapter 7, part 9, see section 166.

record of proceedings includes—

(a)a written transcript of the proceedings; and

(b)the documents in the court file for the proceedings.

registrable order, for chapter 7, part 9, see section 166.

registrar ...

registrar of titles means the registrar of titles under the Land Title Act 1994.

registrar or registrar of the tribunal means the principal registrar of the tribunal under the QCAT Act.

relevant person, for chapter 11, part 4, see section 246.

relevant service provider see the Disability Services Act 2006, section 140(3).

relevant tribunal person, for chapter 11, part 4, see section 246.

removal of tissue for donation see schedule 2, section 8(1).

repealed Act, for chapter 12, part 3, see section 258.

repealed chapter, for chapter 12, part 1, see section 253.

respite/community access plan, for chapter 5B, see section 80U.

respite services, for chapter 5B, see section 80U.

restrictive practice, for chapter 5B, see section 80U.

restrictive practice (general) matter, for chapter 5B, see section 80U.

restrictive practice matter, for chapter 5B, see section 80U.

restrictive practice (respite) matter, for chapter 5B, see section 80U.

seclude, for chapter 5B, see section 80U.

security transaction ...

senior member, of the tribunal, means a senior member of the tribunal under the QCAT Act.

senior practitioner, for chapter 5B, see section 80U.

short term plan ...

significant health detriment, for chapter 7, part 1, see section 99.

special health care see schedule 2, section 7.

special health matter see schedule 2, section 6.

special life-sustaining measures ...

special medical research or experimental health care see schedule 2, section 12.

special personal matter see schedule 2, section 3.

statutory health attorney see Powers of Attorney Act 1998, section 63.

sterilisation—

(a)for chapter 5A, see section 80B; or

(b)otherwise, see schedule 2, section 9.

support network, for an adult, consists of the following people—

(a)members of the adult’s family;

(b)close friends of the adult;

(c)other people the tribunal decides provide support to the adult.

term includes condition, limitation and instruction.

termination see schedule 2, section 10.

tissue see schedule 2, section 8(2).

titles registry fee, for a matter mentioned in a provision of this Act, means the fee payable for the matter under the Land Title Act 1994, section 198B.

tribunal means QCAT.

tribunal expert, for chapter 11, part 4, see section 246.

tribunal rules ...

use, for chapter 11, part 4, see section 246.

visitable site, for chapter 10, see section 222.

visitable site document, for chapter 10, see section 222.