Guardianship and Administration Amendment Act 2013 (TAS)

Guardianship and Administration Amendment Act 2013

An Act to amend the Guardianship and Administration Act 1995

[Royal Assent 21 October 2013]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1Short titleThis Act may be cited as the Guardianship and Administration Amendment Act 2013 . 2CommencementThis Act commences on the day on which this Act receives the Royal Assent. 3Principal ActIn this Act, the Guardianship and Administration Act 1995 is referred to as the Principal Act. 4Section 3 amended (Interpretation) Section 3 of the Principal Act is amended as follows: (a) by inserting the following definition after the definition of administrator in subsection (1) : appointor, in relation to an enduring guardian, means the person who appointed the enduring guardian to be the person’s enduring guardian; (b) by inserting the following subsection after subsection (2) : (3)  In this Act, a reference to an enduring guardian making or entering into a transaction is to be taken to be a reference to the enduring guardian making a decision, taking an action, giving a consent or doing an act. 5Sections 32B , 32C and 32D insertedAfter section 32A of the Principal Act , the following sections are inserted in Part 5: 32BRight of enduring guardian to information (1)  An enduring guardian has a right – (a) to all the information to which the appointor is entitled; and (b) if the appointor is unable by reason of a disability to make reasoned judgments in respect of matters relating to his or her personal circumstances, to all information to which the appointor would have been entitled but for the disability – if the information is reasonably required for the purpose of exercising a power, or determining whether to exercise a power, of the enduring guardian. (2)  An enduring guardian has, if the appointor is unable by reason of a disability to make reasoned judgments in respect of matters relating to his or her personal circumstances, a right to obtain, from a person who has possession of a will of the appointor, a copy, of the will, that is certified by the person. (3)  A person who has custody or control of information, or a will, to which an enduring guardian has a right under subsection (1) or (2) , must, at the request of the enduring guardian, disclose the information to the enduring guardian or provide to the enduring guardian a copy, of the will, that is certified by the person. (4)  Subsections (1) , (2) and (3) are subject to any condition or contrary intention, or express limitation, in the instrument of appointment of the enduring guardian. 32CTransactions that may involve conflict of duty (1)  An enduring guardian may only enter into a transaction that results, or may result, in a conflict of interest, if – (a) the instrument of appointment of the enduring guardian specifies that the transaction may, even though it will or may result in a conflict of interest, be entered into by the enduring guardian; or (b) the transaction is a member of a class of transactions that the instrument of appointment of the enduring guardian specifies may, even though the transactions will or may result in a conflict of interest, be entered into by the enduring guardian; or (c) the instrument of appointment of the enduring guardian specifies that, even though such a transaction will or may result in a conflict of interest, any transaction may be entered into by the enduring guardian. (2)  For the purposes of subsection (1) , a conflict of interest is a conflict between – (a) the duties of an enduring guardian in respect of the appointor; and (b) either – (i) the interests of the enduring guardian, or a relative, business associate or close friend of the enduring guardian; or (ii) another duty of the enduring guardian. 32DKeeping of records, &c. (1)  An enduring guardian must keep an accurate record of all dealings and transactions made by the person as the enduring guardian.

Penalty:  Fine not exceeding 20 penalty units.

(2)  A person who has ceased to be an enduring guardian must – (a) retain, for at least 7 years after so ceasing, an accurate record of all dealings and transactions made as the enduring guardian; or (b) provide to the Board an accurate record of all dealings and transactions made as the enduring guardian.

Penalty:  Fine not exceeding 20 penalty units.

(3)  A person with a proper interest in the matter may, in writing, request the Board to exercise its power under subsection (4) in relation to a person who is or was an enduring guardian. (4)  The Board, after receiving under subsection (3) a request in relation to – (a) a person who is an enduring guardian; or (b) a person who was, within the previous 7 years, an enduring guardian and who has not provided an accurate record to the Board in accordance with subsection (2)(b)  – may, by notice in writing to the person, require the person to provide to the Board, within the period of not less than 14 days specified in the notice, a document setting out an accurate record of all dealings and transactions made by the person as an enduring guardian. (5)  A person who receives a notice under subsection (4) must provide to the Board, before the end of the period specified in the notice, a document setting out an accurate record of all dealings and transactions made by the person as the enduring guardian.

Penalty:  Fine not exceeding 20 penalty units.

(6)  A document provided to the Board by a person in accordance with a notice under subsection (4)  – (a) is to be in a form approved by the Board; and (b) is to be verified by a statutory declaration that is signed by the person; and (c) is to be accompanied by other evidence, if any, that the Board specifies in the notice is required to accompany the document. 6Section 34 amended (Revocation or amendment of appointment by Board) Section 34(1A) of the Principal Act is amended as follows: (a) by omitting from paragraph (a) "donor" and substituting "appointor"; (b) by omitting from paragraph (c) "donor" and substituting "appointor". 7Section 90B insertedAfter section 90A of the Principal Act , the following section is inserted in Division 6: 90BTransitional provisions consequent on Guardianship and Administration Amendment Act 2013 (1)  Section 32C applies to, and in relation to, an enduring guardianship created before that section commences, but only to, or in relation to, the taking of an action, or an action taken, after that section commences. (2)  Section 32D applies to, and in relation to, an enduring guardianship created before that section commences, but only in relation to a dealing or transaction made after the section commences. (3)  Nothing in this section is to be taken to limit the application of sections 32C and 32D to an enduring guardianship created after section 32C or 32D , respectively, commences. 8Repeal of ActThis Act is repealed on the three hundredth and sixty fifth day from the day on which all of the provisions on this Act commence.

[Second reading presentation speech made in:

House of Assembly on 19 SEPTEMBER 2013

Legislative Council on 25 SEPTEMBER 2013]