Guardianship and Management of Property Act 1991 (ACT)
Guardianship and Management of Property Act 1991
A1991-62
Republication No 49
Effective: 3 November 2025
Republication date: 3 November 2025
Last amendment made by A2025‑22
(republication for amendments by A2024-24)
About this republication
The republished law
This is a republication of the Guardianship and Management of Property Act 1991 (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 3 November 2025. It also includes any commencement, amendment, repeal or expiry affecting this republished law to 3 November 2025.
The legislation history and amendment history of the republished law are set out in endnotes 3 and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at type="disc">
authorised republications to which the Legislation Act 2001 applies
unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.
This republication includes amendments made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced, the symbol U appears immediately before the provision heading. Any uncommenced amendments that affect this republished law are accessible on the ACT legislation register ( For more information, see the home page for this law on the register.
Modifications
If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see the Legislation Act 2001, section 95.
Penalties
At the republication date, the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation (see Legislation Act 2001, s 133).
Guardianship and Management of Property Act 1991
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Dictionary 2
3 Notes 2
Part 1A Important concepts and principles
4 Principles to be followed by decision-makers 3
5 When does someone have impaired decision-making ability? 4
5A What are a person’s interests? 4
6 Meaning of carer 5
6A Limits on finding impaired decision-making ability 5
Part 2 Guardians and managers
Division 2.1 Appointment and powers
7 Appointment and powers of guardians 7
7A Appointment of guardians under direction 9
7B Restriction on powers of guardians 9
8 Appointment and powers of managers 9
8AA Manager for missing person’s property 10
8AB Missing people’s property—who may apply for appointment of manager? 12
8AC Missing people’s property—powers and term of manager 13
8A Restriction on power to appoint manager outside ACT 13
8B Effect on guardian or manager of enduring power of attorney in relation to health care 14
8C May a guardian or manager be appointed for a child? 14
9 Who may be appointed 15
10 Considerations affecting appointment 15
11 Powers to be least restrictive 17
12 Recognition of interstate etc guardians and managers 17
13 Authority of guardian or manager 17
14 Restrictions on manager about property 18
15 Expenses 18
Division 2.2 Supervision
Subdivision 2.2.1 General
16 Directions by ACAT 18
17 Restrictions on ACAT’s power to give directions 19
18 Advice by ACAT 19
19 Review of guardians and managers 19
Subdivision 2.2.2 If guardians or managers do not comply with Act
19A ACAT may order compensation etc 21
19B Compensation under s 19A and later civil proceeding 22
19C Relief from personal liability by court 22
19D ACAT may refer matter to Supreme Court 22
Division 2.3 Matters relating to management
20 Access to records 23
21 Payments for maintenance etc 23
22 Receipt of amounts 23
23 Execution of instruments 24
24 Investments 24
25 Real estate 24
26 Accounts—manager other than public trustee and guardian 25
27 Examination of accounts 25
27AA Accounts—public trustee and guardian 26
27A Missing people’s property—liability of manager and third party dealings 27
Division 2.4 Cessation of guardianship or management
28 Resignation 27
29 Death of represented person 27
30 Manager may act until notified of discharge etc 28
30A Missing people’s property—ending of order 28
31 Removal by ACAT 28
32 Surviving or substitute guardians etc 29
Part 2A Consent to medical treatment without formal representation
32A Definitions—pt 2A 31
32B Who is a health attorney for a protected person? 33
32C Who is a carer for a protected person? 33
32D Health attorney may give consent 33
32E Decision-making principles apply 35
32F Decision about health attorney 35
32G Health professional must give information to health attorney 36
32H Referring matters to public trustee and guardian—refusal of consent 37
32I Referring matters to public trustee and guardian—disagreement between health attorneys 38
32J Notice to public advocate—long‑term treatment 39
32JA Notice and duration of consent—mental health treatment, care or support 39
32JB Interested person may apply to ACAT for review of health attorney’s decision 40
32K Protection of health attorney from liability 41
32L Protection of health professional from liability 41
32M Preservation of liability 41
32N Urgent medical treatment 41
32O Interested person may withdraw health attorney’s consent to low-risk research 41
32P Health attorney must not benefit from health attorney’s decision 42
Part 2B Medical research and low-risk research
33 Guardian may consent to protected person’s participation in low-risk research 43
34 Guardian may consent to protected person’s participation in medical research 43
35 Guardian must not benefit from guardian’s decision 45
36 Assessment of likelihood of principal regaining decision‑making capacity 46
37 Interested person may apply to ACAT for review of guardian’s decision 47
Part 3 Powers of attorney and ACAT
61 Definitions—pt 3 48
62 ACAT directions etc for enduring powers of attorney 48
63 Reference of power of attorney matters to Supreme Court 49
64 Request for accounts—enduring powers of attorney 50
65 Declaration about decision-making capacity 50
66 Removing attorneys 50
Part 5 Miscellaneous
67 Temporary appointments 51
68 Emergency removal of disabled persons 51
68A Emergency orders—enduring powers of attorney 53
68B ACAT’s power to revoke health direction 53
69 Capacity to consent to medical etc procedures 54
70 ACAT may consent to prescribed medical procedures 55
70A Restrictions on consent by guardian to mental health treatment, care or support 56
71 Power to adjust transactions 58
72 Injunctions to restrain dealings 59
72A Notice of hearing 59
72B Authority for medical or other examinations 60
72C Power to obtain information and documents 60
72D Medical certificate about impaired decision-making capacity 61
73 Acts and omissions of representatives 61
74 Criminal liability of executive officers 62
75 Determination of fees 63
75A Approved forms 63
77 Regulation-making power 64
Dictionary65
Endnotes
1 About the endnotes 69
2 Abbreviation key 69
3 Legislation history 70
4 Amendment history 79
5 Earlier republications 94
6 Expired transitional or validating provisions 98
Guardianship and Management of Property Act 1991
An Act to provide for guardianship, and management of the property, of certain people, and for related purposes
Part 1Preliminary
Name of Act
This Act is the Guardianship and Management of Property Act 1991.
Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act or in other legislation.
For example, the signpost definition ‘trustee company—see the Trustee Companies Act 1947, dictionary.’ means that the term ‘trustee company’ is defined in that dictionary and the definition applies to this Act.
Note 2A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).
Notes
A note included in this Act is explanatory and is not part of this Act.
NoteSee the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.
Part 1AImportant concepts and principles
Principles to be followed by decision-makers
(1)This section applies to the exercise by a person (the decision-maker) of a function under this Act in relation to a person with impaired decision-making ability (the protected person).
(2)The decision-making principles to be followed by the decision‑maker are the following:
(a)the decision-maker must provide or facilitate, as far as practicable, support necessary for the protected person to understand the decision to be made, participate in decision-making and communicate their wishes;
(b)the protected person’s wishes, as far as they can be worked out, must be given effect to, unless making the decision in accordance with the wishes is likely to significantly adversely affect the protected person’s interests;
(c)if giving effect to the protected person’s wishes is likely to significantly adversely affect the person’s interests—the decision-maker must give effect to the protected person’s wishes as far as possible without significantly adversely affecting the protected person’s interests;
(d)if the protected person’s wishes cannot be worked out or given effect to at all—the interests of the protected person must be promoted;
(e)the protected person’s life (including the person’s lifestyle) must be interfered with to the smallest extent necessary;
(f)the protected person must be encouraged to look after himself or herself as far as possible;
(g)the protected person must be encouraged to live in the general community, and take part in community activities, as far as possible.
(3)Before making a decision, the decision-maker must consult with each carer of the protected person.
(4)However, the decision-maker must not consult with a carer if the consultation would, in the decision-maker’s opinion, adversely affect the protected person’s interests.
(5)Subsection (3) does not limit the consultation that the decision‑maker may carry out.
When does someone have impaired decision-making ability?
For this Act, a person has impaired decision-making ability if the person’s decision-making ability is impaired because of a physical, mental, psychological or intellectual condition or state, whether or not the condition or state is a diagnosable illness.
5AWhat are a person’s interests?
A person’s interests include the following:
(a)protection of the person from physical or mental harm;
(b)prevention of the physical or mental deterioration of the person;
(c)the ability of the person to—
(i)look after himself or herself; and
(ii)live in the general community; and
(iii)take part in community activities; and
(iv)maintain the person’s preferred lifestyle (other than any part of the person’s preferred lifestyle that is harmful to the person);
(d)promotion of the person’s financial security;
(e)prevention of the wasting of the person’s financial resources or the person becoming destitute.
Meaning of carer
In this Act:
carer—a person is a carer of someone else (the dependant) if—
(a)the dependant is dependent on the person for ongoing care and assistance; and
(b)the person cares for the dependant otherwise than because of—
(i)a commercial arrangement; or
(ii)an arrangement that is substantially commercial.
Example of a carer
Ms S suffers from a severe brain injury because of a car accident and requires constant care. Her spouse, 2 children aged 18 and 11 and a family friend share her care and would each be a ‘carer’.
6ALimits on finding impaired decision-making ability
A person must not be taken to have a physical, mental, psychological or intellectual condition relevant to section 7 (Appointment and powers of guardians), section 8 (Appointment and powers of managers) or section 32A (Definitions—pt 2A), definition of protected person only because the person—
(a)is eccentric; or
(b)does or does not express a particular political or religious opinion; or
(c)is of a particular sexual orientation or expresses a particular sexual preference; or
(d)engages or has engaged in illegal or immoral conduct; or
(e)takes or has taken drugs, including alcohol (but any effects of a drug may be taken into account).
Part 2Guardians and managers
Division 2.1 Appointment and powers
Appointment and powers of guardians
(1)This section applies if the ACAT is satisfied that—
(a)someone has impaired decision-making ability in relation to a matter relating to the person’s health or welfare; and
(b)while the person has the impaired decision-making ability—
(i)there is, or is likely to be, a need for a decision in relation to the matter; or
(ii)the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the person’s health, welfare or property; and
(c)if a guardian is not appointed—
(i)the person’s needs will not be met; or
(ii)the person’s interests will be significantly adversely affected.
Note 1See s 8C in relation to appointment of a guardian for a child.
Note 2A person’s needs may be met, or the person’s interests protected, under an enduring power of attorney (see Powers of Attorney Act 2006).
(2)In considering subsection (1) (c), the ACAT must consider—
(a)if support necessary for the protected person to make, participate in and communicate their own decisions were to be provided or facilitated—if it is reasonably likely the person’s—
(i)needs would be met; and
(ii)interests would be adequately protected; and
(b)if it is reasonably likely that the necessary support can be provided or facilitated.
(3)The ACAT may, by order, appoint a guardian for the person, with the powers that the ACAT is satisfied are necessary or desirable to make decisions for the person in accordance with the decision-making principles.
NoteThe powers that may be given to a guardian are restricted under s 7B.
(4)The powers that may be given to a person’s guardian include the following powers:
(a)to decide where, and with whom, the person is to live;
(b)to decide what education or training the person is to receive;
(c)to decide whether the person is to be allowed to work;
(d)if the person is to be allowed to work—to decide the nature of the work, the place of employment and the employer;
(e)to give, for the person, a consent required for a medical procedure or other treatment (including medical research or low-risk research but not including a prescribed medical procedure or medical treatment mentioned in paragraph (f));
NoteFor when a guardian may consent to a person participating in medical research or low-risk research, see pt 2B (Medical research and low-risk research).
(f)to give, for the person, a consent required for medical treatment involving treatment, care or support under the Mental Health Act 2015 (other than a prescribed medical procedure);
NoteFor provisions relevant to a guardian with power under this paragraph, see s 70A (Restrictions on consent by guardian to mental health treatment, care or support).
(g)to bring or continue legal proceedings for or in the name of the person.
7AAppointment of guardians under direction
If the Supreme Court gives a direction under the Crimes Act 1900, section 316 (Special hearing), the ACAT must appoint a guardian as directed.
7BRestriction on powers of guardians
The powers that may be given to a person’s guardian do not include the power to discipline the person or the power to do any of the following things for the person:
(a)vote in an election;
(b)make a will or other testamentary instrument;
(c)consent to the adoption of a child;
(d)give a consent to a marriage or civil union;
(e)give a consent required for a prescribed medical procedure for the person;
(f)request access to, revoke a request to access, or access voluntary assisted dying.
Appointment and powers of managers
(1)This section applies if the ACAT is satisfied that—
(a)someone has impaired decision-making ability in relation to the person’s financial matters or a matter affecting the person’s property; and
(b)while the person has the impaired decision-making ability—
(i)there is, or is likely to be, a need for a decision in relation to the matter; or
(ii)the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the person’s health, welfare or property; and
(c)if a manager is not appointed—
(i)the person’s needs will not be met; or
(ii)the person’s interests will be significantly adversely affected.
(2)In considering subsection (1) (c), the ACAT must consider—
(a)if support necessary for the protected person to make, participate in and communicate their own decisions were to be provided or facilitated—if it is reasonably likely the person’s—
(i)needs would be met; and
(ii)interests would be adequately protected; and
(b)if it is reasonably likely that the necessary support can be provided or facilitated.
(3)The ACAT may, by order, appoint a manager to manage all, or a stated part of, the person’s property, with the powers that the ACAT is satisfied are necessary or desirable to allow the manager to make decisions in relation to the property, in accordance with the decision-making principles.
NoteThe ACAT’s power to appoint a manager is restricted under s 8A.
(4)The powers that may be given to a person’s manager are the powers that the person would have if the person were legally competent to exercise powers in relation to the person’s property.
8AAManager for missing person’s property
(1)This section applies if the ACAT is satisfied, on application, that—
(a)someone is a missing person; and
(b)the person usually lives in the ACT; and
(c)while the person is missing, there is, or is likely to be, a need for a decision in relation to the person’s financial matters or property; and
(d)the person’s interests will be significantly adversely affected if a manager is not appointed.
(2)However, the ACAT must not consider an application under subsection (1) in relation to a person if—
(a)the public trustee and guardian has made an application to the Supreme Court to be appointed the manager of the person’s property under the Public Trustee and Guardian Act 1985, section 34 (Application for appointment as manager of property) and the application has not been finally dealt with; or
(b)the Supreme Court has appointed the public trustee and guardian manager of the person’s property under that Act, section 34 (2).
(3)The ACAT may be satisfied that a person is a missing person only if satisfied that—
(a)it is not known whether the person is alive; and
(b)reasonable efforts have been made to find the person; and
(c)for at least 90 days, the person has not contacted—
(i)anyone who lives at the person’s last-known home address; or
(ii)any relative or friend of the person with whom the person is likely to communicate.
Examples of contact
1 telephone call
2 physical sighting of the person
(4)The ACAT may, by order, appoint a manager to manage all, or a stated part, of the missing person’s property, with the powers that the ACAT is satisfied are necessary or desirable to allow the manager to make decisions in relation to the property in accordance with the decision-making principles as if the missing person were a protected person.
NoteThe ACAT’s power to appoint a manager is restricted under s 8A.
(5)An application under subsection (1), or an appointment under subsection (4), does not prevent the public trustee and guardian making an application under the Public Trustee and Guardian Act 1985, section 34 in relation to the property to which the application or appointment relates.
(6)The Legislation Act, part 19.3 (Appointments) does not apply to an appointment under subsection (4).
8ABMissing people’s property—who may apply for appointment of manager?
An application for the appointment of a manager for a person under section 8AA may be made by any of the following:
(a)a domestic partner of the person;
(b)a relative of the person;
(c)a carer of the person;
(d)the Attorney-General;
(e)the public trustee and guardian;
(f)anyone else who has an interest in the property of the person.
8ACMissing people’s property—powers and term of manager
(1)The powers that may be given to the manager under section 8AA (4) (Manager for missing person’s property) are the powers the missing person would have if the person were able to exercise them.
(2)However, an order under section 8AA (4) must state the kind of decisions the manager may make and the property in relation to which the power may be exercised.
(3)An order under section 8AA (4) must also state the term of the appointment.
(4)An appointment under section 8AA (4) must be for not longer than 2 years, but the ACAT may, on application by the manager or a person mentioned in section 8AB, extend the term for up to 2 more years.
8ARestriction on power to appoint manager outside ACT
(1)The ACAT may appoint a manager for property in the ACT of someone (the protected person) who lives outside the ACT only if—
(a)the ACAT is satisfied that it is impracticable for a manager for the property to be appointed in the jurisdiction (the other jurisdiction) where the protected person lives; or
(b)an order appointing a manager for the property under the law of the other jurisdiction cannot be registered under section 12 (Recognition of interstate etc guardians and managers).
(2)For this section:
jurisdiction means a State, another Territory or a foreign country.
8BEffect on guardian or manager of enduring power of attorney in relation to health care
(1)This section applies if—
(a)a person (the principal) has made an enduring power of attorney giving power in relation to health care matters or medical research matters; and
(b)the principal has become a person with impaired decision‑making capacity; and
(c)the ACAT appoints a guardian for the principal after the making of the power of attorney; and
(d)the ACAT revokes or suspends the enduring power of attorney, or part of it.
NoteThe ACAT may revoke the enduring power of attorney, or part of it, under s 62 (2) (c), or suspend the enduring power of attorney, or part of it, under s 62 (2) (d).
(2)If the guardian has power to consent to medical treatment, medical research or low-risk research for the person, the guardian must consider the terms of the enduring power of attorney before the enduring power of attorney, or part of it, was revoked or suspended.
(3)In this section:
health care matter, for a principal—see the Powers of Attorney Act 2006, section 12.
medical research matter, for a principal—see the Powers of Attorney Act 2006, section 12A.
8CMay a guardian or manager be appointed for a child?
(1)The ACAT may appoint a guardian or manager for a person who is a child.
(2)However, the order appointing the guardian or manager does not take effect until the person becomes an adult.
Who may be appointed
(1)The public trustee and guardian or an individual may be appointed as a guardian.
(2)The public trustee and guardian, a trustee company or an individual may be appointed as a manager.
(3)A person may be appointed both guardian and manager, and people may be appointed jointly as guardians or managers, or both.
(4)The public trustee and guardian must not be appointed as a person’s guardian if an individual who is otherwise suitable has consented to be appointed.
(5)The public trustee and guardian or a trustee company must not be appointed as a manager of a person’s property if an individual who is otherwise suitable has consented to be appointed.
Considerations affecting appointment
(1)A person must not be appointed as a guardian or manager unless the person consents in writing to the appointment.
(2)A person (except the public trustee and guardian or a trustee company) must not be appointed as a guardian or manager unless the person is an adult and has informed the ACAT whether the person—
(a)has been convicted or found guilty of an offence involving violence, fraud or dishonesty; or
(b)has been, either in the ACT or elsewhere, refused appointment as a guardian or manager, or removed from office as a guardian or manager; or
(c)is bankrupt or personally insolvent (and, if so, has given particulars to the ACAT).
NoteBankrupt or personally insolvent—see the Legislation Act, dictionary, pt 1.
(3)For subsection (2), a person may inform the ACAT on oath or by statutory declaration.
(4)Someone (other than the public trustee and guardian) may be appointed as a guardian or manager only if the ACAT is satisfied that the person will follow the decision-making principles and is otherwise suitable for appointment.
(5)For subsection (4), the matters the ACAT must take into account include—
(a)the views and wishes of the person (the protected person) for whom a guardian or manager is to be appointed; and
(b)the desirability of preserving existing relationships with family and any other carers; and
(c)whether the proposed guardian or manager is compatible with the protected person; and
(d)whether the proposed guardian or manager lives in the ACT; and
(e)whether the proposed guardian or manager will be available and accessible to the protected person; and
(f)the nature of the functions to be exercised under the order and whether the proposed guardian or manager is competent to exercise them; and
(g)whether the interests and duties of the proposed guardian or manager are likely to conflict with the protected person’s interests to the detriment of the protected person’s interests.
(6)The interests and duties of the domestic partner or a relative of a person must not be taken to be likely to conflict with the interests of the person only because of the fact of being the domestic partner or relative.
Powers to be least restrictive
The powers given to a person’s guardian or on a manager of a person’s property are to be no more restrictive of the person’s freedom of decision and action than is necessary to achieve the purpose of the order.
NoteAlso, the guardian or manager should exercise the powers in accordance with the decision-making principles (see s 4).
Recognition of interstate etc guardians and managers
(1)The ACAT must, on application, register the appointment of a person who is, under a corresponding law—
(a)a guardian for another person who lives outside the ACT; or
(b)a manager of property of another person who lives outside the ACT.
(2)On registration, the person is taken to be a guardian, or manager of the property, of the other person, as the case requires, as if the appointment had been made by the ACAT.
(3)The ACAT must not register an appointment unless the instrument of appointment, or a copy of it, has been lodged with the ACAT.
(4)In this section:
corresponding law means a law of a State or of another Territory, or a law of a prescribed country, that corresponds, or substantially corresponds, to this Act.
Authority of guardian or manager
An act or omission of a guardian or manager under this Act has effect as if it were an act or omission of the represented person and that person had the legal capacity for the act or omission.
Restrictions on manager about property
(1)Unless the ACAT, on application, orders otherwise—
(a)a manager of a person’s property must not enter into a transaction in relation to the property if the interests of the manager are in conflict, or may conflict, with the interests of the person; and
(b)a manager of a person’s property must keep the manager’s property separate from the person’s property.
(2)Subsection (1) (b) does not apply to property owned jointly by the manager and person.
Expenses
(1)A person who acts as a guardian or manager is entitled to reimbursement of the reasonable expenses incurred in acting as guardian or manager.
(2)Amounts payable under this section are payable out of, and are a charge on, the relevant person’s property or, if the manager concerned is manager of part only of the relevant person’s property, that part.
Division 2.2 Supervision
Subdivision 2.2.1 General
Directions by ACAT
(1)The ACAT may, on application, give a direction to a guardian or manager about the exercise of his or her functions or powers.
(2)A guardian or manager must not, without reasonable excuse, contravene a direction.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
Restrictions on ACAT’s power to give directions
(1)This section applies to an order that affects a person—
(a)who has a guardian; or
(b)for whom a manager is appointed.
(2)The ACAT must not give a direction that is inconsistent with the order.
Advice by ACAT
(1)The ACAT may, on application by a guardian or manager, give an opinion or advice about the exercise of functions or powers by the guardian or manager.
(2)A guardian or manager who acts in accordance with such an opinion or advice is taken to have acted properly and in accordance with this Act unless, in obtaining the opinion or advice, the guardian or manager acted fraudulently or wilfully misrepresented or concealed a material fact.
Review of guardians and managers
(1)The ACAT may at any time, on application or on its own initiative, hold a hearing to consider—
(a)whether an order appointing a guardian or manager should be—
(i)varied; or
(ii)revoked on the ground that the need for guardianship or management no longer exists; or
(b)whether a guardian or manager should be removed under section 31.
(2)The ACAT must review an order appointing a guardian or manager at least once every 3 years.
(3)The ACAT must review an order appointing a guardian for a person if—
(a)the guardian tells the ACAT under section 70A (6) that a consent to treatment is not to be renewed; or
(b)an advance consent direction made by the person is given to the ACAT under the Mental Health Act 2015, section 27 (5).
(4)The ACAT must consider the suitability of a person as a replacement guardian or manager as soon as practicable after the person becomes a replacement guardian or manager.
(5)For this section:
(a)order includes an order registered under section 12 (Recognition of interstate etc guardians and managers); and
(b)an order registered under section 12 is taken to have been made when the order is registered.
(6)In this section:
replacement guardian or manager means a person who becomes a guardian or manager when—
(a)a previous guardian or manager dies; and
(b)the previous guardian or manager’s appointment provides for the person to become the guardian or manager.
Subdivision 2.2.2 If guardians or managers do not comply with Act
19AACAT may order compensation etc
(1)The ACAT may order the guardian or manager for a person (the protected person) to pay an amount to the protected person or, if the protected person has died, the protected person’s estate—
(a)to compensate for a loss caused by the failure of the guardian or manager to comply with this Act in the exercise, or purported exercise, of a power; or
(b)to account for any profits the guardian or manager has accrued as a result of their failure to comply with this Act in the exercise, or purported exercise, of a power.
(2)However, the ACAT must not order the guardian or manager to make a payment under both subsection (1) (a) and (b) in relation to the same exercise, or purported exercise, of power.
(3)Subsection (1) applies whether or not the guardian or manager is convicted of an offence in relation to the failure.
(4)The ACAT may make an order under subsection (1)—
(a)on its own initiative; or
(b)on application by an interested person in relation to the protected person.
(5)If the protected person or the guardian or manager has died, any application under subsection (4) (b) must be made—
(a)within 6 months after the day of the death; and
(b)if both the protected person and the guardian or manager have died—within 6 months after the day of the first death.
19BCompensation under s 19A and later civil proceeding
(1)This section applies if—
(a)compensation for the failure of a guardian or manager to comply with this Act is paid in accordance with an order under section 19A; and
(b)a later civil proceeding is brought in relation to the same failure.
(2)The payment of compensation must be taken into account in assessing damages in the civil proceeding.
19CRelief from personal liability by court
(1)This section applies if a court considers that—
(a)a guardian or manager is, or may be, personally liable for a contravention of this Act; and
(b)the guardian or manager has acted honestly and reasonably and ought fairly to be excused for the contravention.
(2)The court may relieve the guardian or manager from all or part of the guardian’s or manager’s personal liability for the contravention.
(3)In deciding whether the guardian or manager should be relieved of liability, the court must consider the extent to which the guardian or manager has acted consistently with the decision-making principles.
19DACAT may refer matter to Supreme Court
The ACAT may refer an application under section 19A (4) (b) to the Supreme Court.
NoteSee the ACT Civil and Administrative Tribunal Act 2008, s 83 and s 84 for when an application to the ACAT may be referred to the Supreme Court.
Division 2.3 Matters relating to management
Access to records
Unless the ACAT otherwise orders, a manager of a person’s property is entitled to inspect a will or other testamentary instrument made by the person and to inspect any other document relating to the property.
Payments for maintenance etc
(1)The manager of a person’s property may, out of the property, pay reasonable amounts for the maintenance, advancement or education, or otherwise for the benefit, of the person and of the person’s dependants (if any).
(2)The payments may be made to or on behalf of the person and, if the person has a guardian, to the guardian.
(3)The payments may be made out of income or capital.
(4)In deciding whether to make a payment, the matters that the manager must take into account include—
(a)the person’s views and wishes; and
(b)the amount and nature of the property; and
(c)the amount and nature of any other of the person’s property; and
(d)the present and likely future needs of the person and any dependants.
Receipt of amounts
(1)Unless the ACAT otherwise orders, the manager of a person’s property becomes the manager of the following amounts received by the manager:
(a)interest or income in relation to the property;
(b)the proceeds of the realisation of the property.
(2)Unless the ACAT otherwise orders, if there is an accretion to property in relation to which a manager has been appointed, the manager becomes manager of the extra property.
Execution of instruments
An instrument executed by a manager of a person’s property acting as manager has the same effect as if it had been executed by the person.
Investments
(1)A manager must not invest amounts held in the capacity as manager except—
(a)in investments in which trust money may, in accordance with the Trustee Act 1925, be invested; or
(b)as the ACAT, by order, allows.
(2)Subsection (1) has effect despite the Public Trustee and Guardian Act 1985.
Real estate
If the property for which a manager is appointed includes land held under the Land Titles Act 1925, the manager must—
(a)within 14 days after being appointed, lodge a copy of the order of appointment; or
(b)within 14 days after being registered as manager under section 12, lodge a copy of the relevant order of appointment together with evidence of the registration;
with the registrar-general.
Accounts—manager other than public trustee and guardian
(1)A manager other than the public trustee and guardian must, in accordance with the regulations, file with the public trustee and guardian the accounts and other documents relating to the management of the relevant property that are prescribed.
(2)A person must not, without reasonable excuse, contravene subsection (1).
Maximum penalty: 20 penalty units.
(3)The ACAT may, on application, by order—
(a)give a manager directions in relation to the filing of the prescribed accounts and documents; and
(b)direct a manager to have the accounts and documents audited by a specified auditor.
(4)A manager must not, without reasonable excuse, contravene a direction.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
Examination of accounts
(1)The public trustee and guardian must examine the accounts and documents mentioned in section 26 (1) and may apply to the ACAT for the disallowance of any item in the accounts.
(2)The ACAT must not make an order disallowing an item if the ACAT is satisfied that the manager acted in good faith and with reasonable care in the exercise of powers given to the manager.
(3)If an item is disallowed by the ACAT, the manager concerned—
(a)is not entitled to payment under section 15 of the amount of the item disallowed; and
(b)must pay to the Territory the amount of the costs reasonably incurred by the public trustee and guardian in making the application to the ACAT.
(4)If the public trustee and guardian examines the accounts and other documents in relation to the management of property by the manager, the manager must pay to the Territory the fee determined under section 75 (Determination of fees) for the examination.
(5)An amount payable to the Territory under subsection (3) (b) or (4) is payable on the 28th day after written notice specifying the amount of the debt is given to the debtor by the public trustee and guardian.
(6)The public trustee and guardian may waive payment of all or part of an amount payable to the Territory under subsection (3) (b) or (4) if the public trustee and guardian is satisfied that payment of the amount would impose hardship on a person or that other circumstances justify waiving payment of the amount.
27AAAccounts—public trustee and guardian
(1)This section applies if the public trustee and guardian is appointed as the manager of a person’s property under this part.
(2)The public trustee and guardian must, as soon as practicable after the end of each financial year, provide a statement to—
(a)the person; or
(b)if a guardian has been appointed for the person—the person’s guardian.
(3)The statement must contain the accounts relating to the management of the property during the year.
27AMissing people’s property—liability of manager and third party dealings
(1)A manager does not incur any liability, either to a missing person or anyone else, because of conduct done honestly during the manager’s appointment under section 8AA (4) (Manager for missing person’s property) in relation to a missing person’s property if the conduct was for the exercise of a function under the appointment or of a function that the manager believed, on reasonable grounds, was a function under the appointment.
(2)A person (the third party) who deals with a manager in relation to property that is under the manager’s control because of the manager’s appointment under section 8AA (4), does not incur any liability because of the dealing if it was done in the honest belief that the dealing was for the exercise of a function under the appointment.
(3)In this section:
conduct—see the Criminal Code, section 13.
Division 2.4 Cessation of guardianship or management
Resignation
A guardian or manager may resign by writing given to the ACAT.
Death of represented person
Subject to section 30, a person’s guardian, or a manager of a person’s property, ceases to be guardian or manager when the person dies.
Manager may act until notified of discharge etc
An order appointing a guardian or manager continues in force, so far as an act or thing done under it in good faith is concerned, until the guardian or manager receives notice of the death of the represented person, notice of the revocation of the order or notice of his or her removal from office under section 31.
30AMissing people’s property—ending of order
An order appointing a manager to manage a missing person’s property under section 8AA (Manager for missing person’s property) ends if the Supreme Court appoints the public trustee and guardian manager of the property under the Public Trustee and Guardian Act 1985, section 34.
Removal by ACAT
(1)The ACAT may, by order, remove a person appointed as a guardian or manager if it is satisfied that—
(a)the person is no longer suitable to be a guardian or manager; or
(b)the person is no longer competent to exercise the functions or powers of a guardian or manager; or
(c)the person has failed to exercise the functions or powers of a guardian or manager; or
(d)the person has contravened a provision of this Act.
(2)The ACAT may, by order, remove a manager of a missing person’s property if satisfied, on application by the person or anyone else, that—
(a)the person is alive; or
(b)the person is dead; or
(c)the person may be presumed to be dead.
Surviving or substitute guardians etc
(1)If a person ceases to be a joint guardian (whether by death or otherwise)—
(a)the surviving guardian becomes the sole guardian; or
(b)if there are 2 or more surviving guardians—the survivors become joint guardians.
(2)If a person ceases to be a joint manager of property (whether by death or otherwise)—
(a)the surviving manager becomes the sole manager of the property; or
(b)if there are 2 or more surviving managers—the survivors become joint managers of the property.
(3)If the public trustee and guardian becomes aware that there is no longer a guardian for a person, but not because of—
(a)the revocation by the ACAT of the order appointing the person as guardian; or
(b)the removal by the ACAT of the person as guardian;
the public trustee and guardian must give the ACAT written notice of the fact.
(4)If the notice indicates that the public trustee and guardian or a person stated by the public trustee and guardian will act as guardian, the notice is taken to be an application for the appointment of the public trustee and guardian or person as the guardian.
(5)If the public trustee and guardian becomes aware that there is no longer a manager of a person’s property, but not because of—
(a)the revocation by the ACAT of the order appointing the person as manager; or
(b)the removal by the ACAT of the person as manager;
the public trustee and guardian must give the ACAT written notice of the fact.
(6)If the notice indicates that the public trustee and guardian or a person stated by the public trustee and guardian has consented to act as manager, the notice is taken to be an application for the appointment of the public trustee and guardian or person as the manager.
Part 2AConsent to medical treatment without formal representation
32ADefinitions—pt 2A
In this part:
carer, for a protected person—see section 32C.
close relative or close friend, of a person, means a relative or someone else in a close personal relationship with the person who has frequent contact with the person and a personal interest in the person’s welfare but does not receive remuneration or reward for the contact.
domestic partner, of a person, means a domestic partner who is in a close and continuing relationship with the person.
NoteFor the meaning of domestic partner, see the Legislation Act, s 169. Domestic partner includes a spouse, civil union partner or civil partner.
health attorney, for a protected person—see section 32B (1).
health professional means—
(a)in relation to medical treatment involving treatment, care or support under the Mental Health Act 2015—a mental health professional under that Act; and
(b)in any other case—a doctor or dentist.
medical treatment—
(a)includes—
(i)a medical procedure or treatment; and
(ii)dental treatment; and
(iii)a series of procedures or courses of treatment; and
(iv)medical treatment involving treatment, care or support under the Mental Health Act 2015; but
(b)does not include—
(i)a prescribed medical procedure; or
(ii)medical research; or
(iii)low-risk research.
priority order, for health attorneys for a protected person—see section 32B (3).
protected person means an adult—
(a)who has impaired decision-making ability for the giving of consent to medical treatment; and
(b)who has not appointed an attorney with authority to give consent for medical treatment by an enduring power of attorney under—
(i)the Powers of Attorney Act 2006; or
(ii)a law of a State or of another Territory, or a law of a prescribed country, that corresponds, or substantially corresponds, to the Powers of Attorney Act 2006; and
(c)for whom the ACAT has not appointed a guardian under this Act with authority to—
(i)give consent to medical treatment not involving consent for treatment, care or support under the Mental Health Act 2015; or
(ii)give consent for medical treatment involving treatment, care or support under the Mental Health Act 2015.
remuneration or reward does not include a carer’s pension.
32BWho is a health attorney for a protected person?
(1)Each of the following people is a health attorney for a protected person:
(a)the protected person’s domestic partner;
(b)a carer for the protected person;
(c)a close relative or close friend of the protected person.
(2)However, a person is not a health attorney if the person—
(a)is a child; or
(b)has impaired decision-making ability.
(3)The order of health attorneys in subsection (1) is the priority order for the health attorneys.
32CWho is a carer for a protected person?
(1)A person is a carer for a protected person if he or she—
(a)is a carer of the person for this Act generally; and
(b)gives, or arranges for the giving of, care and support to the person in a domestic context but does not receive remuneration or reward for giving, or arranging for the giving of, the care and support.
(2)If the protected person lives in a hospital, nursing home, group home, boarding-house, hostel or similar place, a person giving, or arranging for the giving of, care and assistance to the protected person at that place is not, only because of that fact, a carer for the protected person.
32DHealth attorney may give consent
(1)This section applies if a health professional believes on reasonable grounds that—
(a)a person is a protected person; and
(b)while the person is a protected person, the person—
(i)needs, or is likely to need, medical treatment; or
(ii)would, or is likely to, benefit from participating in low‑risk research; and
(c)the person does not have an advance consent direction under the Mental Health Act 2015 authorising the treatment.
(2)The health professional may ask the health attorney who the health professional believes on reasonable grounds is best able to represent the views of the protected person to give a consent required for the medical treatment or low-risk research.
Note 1If a form is approved under s 75A for a consent, the form must be used.
Note 2A health attorney’s power to consent to medical treatment for a protected person, or to the protected person participating in low-risk research, must be exercised in a way that is consistent with any existing health direction made by the protected person, unless it is not reasonable to do so (see Medical Treatment (Health Directions) Act 2006, s 18).
(3)A health attorney may consent to the protected person participating in low-risk research only if the research is approved.
(4)If, after receiving the information and access to an independent doctor mentioned in section 32G, the health attorney gives consent for the medical treatment or low-risk research, the health professional need not obtain any other consent for the medical treatment or low-risk research.
(5)However, for medical treatment involving consent for treatment, care or support under the Mental Health Act 2015, the health professional may rely on the consent to provide the treatment care or support only for the period allowed under section 32JA.
NoteSpecial requirements apply for notifying the ACAT if the consent involved mental health treatment, care or support (see s 32JA).
32EDecision-making principles apply
(1)In making a decision under this part a health professional must follow the decision-making principles.
NoteDecision-making principles—see s 4 (2).
(2)In considering whether to consent to medical treatment or low-risk research a health attorney must follow the decision-making principles.
(3)If the protected person was participating in low-risk research before the protected person became a person with impaired decision‑making capacity, it is presumed the protected person’s wishes include to continue participating in the research.
NoteUnder the decision-making principles, the protected person’s wishes, as far as they can be worked out, must be given effect to (see s 4 (2)).
32FDecision about health attorney
(1)For section 32D (2), in considering who is best able to represent the views of the protected person, a health professional—
(a)must consider the health attorneys for the protected person in the priority order; and
(b)may take into account any circumstance that the health professional believes on reasonable grounds is relevant and in particular how readily available is a particular health attorney.
NoteThe health professional must also follow the decision-making principles (see s 32E).
(2)The health professional need not consider a health attorney if the health professional believes on reasonable grounds that the health attorney is not a suitable person to consent to medical treatment for the protected person or to the protected person participating in low-risk research.
(3)If subsection (2) applies, a health professional must make a record of the reasons for the belief.
Examples—s (2)
1 Rosa is a protected person and needs a hip replacement operation to ensure her continued mobility and the ability to live in her garden unit which is attached to her son’s house. The health professional is made aware that Rosa’s son Lorenzo has rented out the garden unit to a friend. As the health professional is aware of a conflict of interests Lorenzo may reasonably be seen as not suitable to consent to the medical treatment.
2 Craig is seriously injured in a motorcycle accident and receives emergency medical treatment that saves his life. A week after the accident he has not regained consciousness. Craig’s mother, Clarissa, has been visiting regularly sometimes accompanied by her partner Joel (who is not Craig’s father). Joel strongly believes that the use of blood products and blood transfusions is unacceptable because of the risk of transfer of blood infections. Joel has been heard in the hospital demanding that Clarissa refuse any medical treatment that involves the use of blood products. The health professional is made aware of Joel’s conversations with Clarissa on the issue. Consent is required to undertake extensive skin grafts involving the use of blood products and possibly a blood transfusion. Clarissa may not be a suitable person to consent to the medical treatment given what may be undue influence exerted by Joel on this issue.
32GHealth professional must give information to health attorney
(1)If a health professional asks a health attorney to consent to medical treatment for a protected person, or to the protected person participating in low-risk research, the health professional must give the health attorney information about the following:
(a)the reasons why the person is a protected person;
(b)the condition of the protected person;
(c)the medical treatment or low-risk research for which consent is sought;
(d)any alternative medical treatment or low-risk research that is available;
(e)the nature and likely effect of the medical treatment for which consent is sought and any alternative medical treatment;
(f)the nature and degree of any significant risks involved with the medical treatment or low-risk research for which consent is sought and any alternative medical treatment;
(g)the likely effect of not providing the medical treatment or low-risk research for which consent is sought;
(h)the decision-making principles;
(i)any other matter that the health professional believes on reasonable grounds is relevant to the provision of consent for the medical treatment or low-risk research.
NoteIf a form is approved under s 75A for this provision, the form must be used.
(2)Also, if a health professional asks a health attorney to consent to a protected person participating in low‑risk research that is part of a clinical trial, the health professional must give the health attorney access to an independent doctor to provide further information and answer any questions the health attorney has about the clinical trial.
(3)In this section:
independent doctor, in relation to low‑risk research that is part of a clinical trial, means a doctor who is not involved in, or connected to, the research, other than in having a professional interest in the area of the research.
32HReferring matters to public trustee and guardian—refusal of consent
(1)This section applies if—
(a)a health professional has requested a health attorney for a protected person to give consent to medical treatment for the protected person or to the protected person participating in low-risk research; and
(b)the health professional believes the refusal is inconsistent with a health direction under the Medical Treatment (Health Directions) Act 2006.
(2)The health professional must refer the matter to the public trustee and guardian.
(3)On referral of a matter, the public trustee and guardian must—
(a)if the public trustee and guardian considers the refusal reasonable—take no further action; or
(b)apply to the ACAT to be appointed as guardian for the protected person.
32IReferring matters to public trustee and guardian—disagreement between health attorneys
(1)This section applies if—
(a)before obtaining the consent to medical treatment for a protected person from the health attorney that the health professional believes is best able to represent the views of the protected person, the health professional becomes aware that 1 or more of the other health attorneys for the protected person objects to the giving of consent; and
(b)the health professional is not aware of any health direction under the Medical Treatment (Health Directions) Act 2006 that is relevant to the issue of whether consent to the medical treatment should be given or not.
(2)The health professional must refer the matter to the public trustee and guardian.
(3)On referral of a matter, the public trustee and guardian may do either or both of the following:
(a)try to help the available health attorneys reach agreement about consent;
(b)apply to the ACAT to be appointed as guardian for the protected person.
(4)To remove any doubt, a health professional is not required to seek the views of other health attorneys for a protected person before obtaining the consent of the health attorney that the health professional believes on reasonable grounds is best able to represent the views of the protected person.
32JNotice to public advocate—long‑term treatment
(1)This section applies if—
(a)consent to medical treatment for a protected person, or to the protected person participating in low-risk research, has been given under this part (other than medical treatment involving treatment, care or support under the Mental Health (Treatment and Care) Act 1994); and
(b)the protected person continues to be given medical treatment, or continues to participate in the research, in accordance with the consent 6 months after the consent was given.
(2)The health professional who is giving the medical treatment, or carrying out the research, must tell the public advocate of the matters mentioned in subsection (1).
32JANotice and duration of consent—mental health treatment, care or support
(1)This section applies if consent has been given under this part for medical treatment for a protected person that involves treatment, care or support under the Mental Health Act 2015.
(2)A health professional who is giving the treatment, care or support must within 7 days after the consent is given—
(a)tell the public advocate in writing that treatment, care or support is being given to the protected person in accordance with the consent; and
(b)give the public advocate a copy of the plan for the proposed treatment, care or support.
(3)The health professional may rely on the consent for 21 days after it is given (the initial consent period).
(4)If treatment, care or support in accordance with the consent is likely to be required for longer than the initial consent period, the health professional must, before the end of that period—
(a)apply to the ACAT for approval to continue providing treatment, care or support in accordance with the consent; and
(b)unless the health professional believes on reasonable grounds that someone else has applied to the ACAT for an order appointing a guardian for the person—apply to the ACAT under part 2 for an order appointing a guardian for the person.
(5)The ACAT may give approval for the health professional to continue to provide treatment, care or support in accordance with the consent for a stated period of not longer than 8 weeks after the end of the initial consent period.
(6)The ACAT must tell the public advocate of any approval given under subsection (5).
32JBInterested person may apply to ACAT for review of health attorney’s decision
An interested person for a protected person may apply to the ACAT for review of the decision of the health attorney to consent, or refuse to consent, to the protected person participating in low-risk research under section 32D.
32KProtection of health attorney from liability
No action or proceeding, civil or criminal, lies against a health attorney for a protected person in relation to consent given, or not given, in good faith as a health attorney for the protected person.
32LProtection of health professional from liability
No action or proceeding, civil or criminal, lies against a health professional in relation to reliance by the health professional, in good faith, on consent given by—
(a)a health attorney for a protected person; or
(b)a person the health professional believes on reasonable grounds is a health attorney for a protected person.
32MPreservation of liability
Nothing in this part relieves a health professional from liability in relation to the provision of medical treatment, or the carrying out of low-risk research, if the health professional would have been subject to the liability—
(a)had the protected person not had impaired decision-making ability; and
(b)had the treatment been provided or research been carried out with the protected person’s consent.
32NUrgent medical treatment
This part does not affect any common law right of a health professional to provide urgent medical treatment without consent.
32OInterested person may withdraw health attorney’s consent to low-risk research
(1)This section applies if a health attorney consents to a protected person participating in low-risk research under section 32D.
(2)An interested person for the protected person may withdraw the health attorney’s consent.
(3)If the interested person withdraws the consent, any data or bodily tissue collected from the protected person while the person was participating in the research must be removed from the research, unless the interested person agrees, in writing, that the data or bodily tissue may be kept.
(4)In this section:
interested person, for a protected person, means each of the following:
(a)if, despite section 32A, definition of protected person, paragraph (b), the protected person has appointed an attorney under an enduring power of attorney—the attorney;
(b)if, despite section 32A, definition of protected person, paragraph (c), the ACAT has appointed a guardian for the person—the guardian;
(c)the protected person.
32PHealth attorney must not benefit from health attorney’s decision
(1)A health attorney must not—
(a)accept a fee or other benefit for consenting, or refusing to consent, to a protected person participating in low-risk research; or
(b)be involved in, or connected to, the research.
(2)To remove any doubt, subsection (1) does not apply to any personal benefit to the health attorney because of an improvement in the protected person’s health as a result of participating in the research.
Part 2BMedical research and low-risk research
Guardian may consent to protected person’s participation in low-risk research
(1)This section applies if—
(a)a guardian is appointed for a person (a protected person); and
(b)the guardian is given the power to give, for the protected person, a consent required for a medical procedure or other treatment under section 7 (4) (e); and
(c)the guardian is considering whether to consent to the protected person participating in low-risk research.
(2)A guardian may consent to the protected person participating in low-risk research only if the research is approved.
NoteA guardian’s power to consent to a protected person participating in low-risk research must be exercised in a way that is consistent with any existing health direction made by the protected person (see Medical Treatment (Health Directions) Act 2006, s 18).
(3)If a guardian makes an application, the ACAT must give an opinion or advice to assist the guardian to decide whether to give consent under subsection (2).
Guardian may consent to protected person’s participation in medical research
(1)This section applies if—
(a)a guardian is appointed for a person (a protected person); and
(b)the guardian is given the power to give, for the protected person, a consent required for a medical procedure or other treatment under section 7 (4) (e); and
(c)the guardian is considering whether to consent to the protected person participating in medical research.
(2)The guardian may consent to the protected person participating in medical research only if—
(a)the research is approved; and
(b)the protected person is not likely to regain decision-making capacity before the latest time that the protected person may meaningfully participate in the research; and
NoteAn independent doctor must assess the likelihood of the principal regaining decision-making capacity within the time mentioned (see s 36).
(c)the guardian is satisfied on reasonable grounds that—
(i)the research relates to the diagnosis, maintenance or treatment of a condition that the protected person has or has had or to which the protected person has a significant risk of being exposed; and
(ii)the research may result in benefit to the protected person or others with the condition; and
(iii)the potential benefit to the protected person, or others with the condition, of participating in the research outweighs any potential risk or inconvenience to the protected person, or any potential adverse impact on the protected person’s quality of life; and
(iv)participating in the research will not unduly interfere with the protected person’s privacy.
Note 1A guardian’s power to consent to a protected person participating in medical research must be exercised in a way that is consistent with any existing health direction made by the protected person (see Medical Treatment (Health Directions) Act 2006, s 18).
Note 2In considering whether to consent to a protected person participating in medical research, a guardian must follow the decision-making principles (see s 4).
(3)If the protected person was participating in medical research before the protected person became a person with impaired decision‑making capacity, it is presumed the protected person’s wishes include to continue participating in the research.
NoteUnder the decision-making principles, the protected person’s wishes, as far as they can be worked out, must be given effect to (see s 4 (2)).
(4)If a guardian makes an application, the ACAT must give an opinion or advice to assist the guardian to decide whether to give consent under subsection (2).
Guardian must not benefit from guardian’s decision
(1)A guardian must not—
(a)accept a fee or other benefit for consenting, or refusing to consent, to a protected person participating in low-risk research under section 33 or medical research under section 34; or
(b)be involved in, or connected to, the research.
(2)To remove any doubt, subsection (1) does not apply to any personal benefit to the guardian because of an improvement in the protected person’s health as a result of participating in the research.
Assessment of likelihood of principal regaining decision‑making capacity
(1)The likelihood of a principal regaining decision-making capacity within the period mentioned in section 34 (2) (b) must be assessed by an independent doctor, taking into account—
(a)the protected person’s medical, mental and physical condition; and
(b)the severity of the protected person’s condition and the prognosis for the protected person; and
(c)the current stage of treatment and care required for the protected person; and
(d)any other circumstances relevant to the protected person; and
(e)the nature of the medical research, including the type of treatment or care provided by the research and the timeframe for the research.
(2)The independent doctor must state, in writing, the doctor’s belief whether the protected person is likely to regain decision-making capacity within the period mentioned in subsection (1), and the reasons for the belief.
Note 1An independent doctor must always give a statement under s (2), regardless of whether the ACAT has made a declaration about the decision‑making capacity of a principal for an enduring power of attorney under s 65.
Note 2In a proceeding, a certificate by an independent doctor under s (2) stating whether a protected person is likely to regain decision-making capacity within the required period is evidence of that fact (see s 72D).
(3)In this section:
independent doctor, in relation to medical research, means a doctor who is not involved in, nor connected to, the research, other than a professional interest in the area of the research.
Interested person may apply to ACAT for review of guardian’s decision
An interested person for a protected person may apply to the ACAT for review of the decision of the guardian to consent, or refuse to consent, to the protected person participating in low-risk research under section 33 or medical research under section 34.
Part 3Powers of attorney and ACAT
Definitions—pt 3
In this part:
decision-making capacity—see the Powers of Attorney Act 2006, dictionary.
interested person—see the Powers of Attorney Act 2006, dictionary.
power of attorney—see the Powers of Attorney Act 2006, dictionary.
principal—see the Powers of Attorney Act 2006, dictionary.
ACAT directions etc for enduring powers of attorney
(1)This section applies in relation to an enduring power of attorney.
(2)On application, or on its own initiative on hearing a matter under this Act, the ACAT may, by order—
(a)give a direction, not inconsistent with the Powers of Attorney Act 2006 or the power of attorney, that the attorney do or not do a stated act; or
(b)direct the attorney to produce stated books, accounts or other records of transactions carried out by the attorney for the principal; or
(c)revoke the enduring power of attorney, or part of it; or
(d)suspend the enduring power of attorney, or part of it; or
(e)make a declaration about the interpretation or effect of the enduring power of attorney.
(3)An application under subsection (2) may be made by an interested person or, with leave of the ACAT, someone else.
(4)If the ACAT revokes an enduring power of attorney and the person who was the principal for the power has impaired decision‑making capacity, the ACAT may appoint a guardian or manager for the person.
(5)If the ACAT suspends an enduring power of attorney and the person who was the principal for the power has impaired decision‑making capacity, the ACAT may appoint a guardian or manager for the person for the period of the suspension.
Reference of power of attorney matters to Supreme Court
(1)This section applies in relation to an application to the ACAT under section 62.
(2)The ACAT may refer the matter, or part of the matter, to the Supreme Court.
(3)In deciding whether to refer a matter to the Supreme Court, the ACAT—
(a)must take into consideration the following matters:
(i)whether the matter relates to the effect of the enduring power of attorney on people other than the attorney or principal;
(ii)whether the matter is likely to raise for consideration complex or novel legal issues that the Supreme Court is better suited to decide; and
(b)may take into consideration anything else the ACAT considers relevant.
Request for accounts—enduring powers of attorney
The public advocate or the public trustee and guardian (the requestor) may, by written notice given to a person who is or has been an attorney under an enduring power of attorney, require the person to give the requestor stated books, accounts or other records of transactions carried out by the person for the principal under the power of attorney.
Declaration about decision-making capacity
(1)The ACAT may, on application, declare that a person who is the principal for an enduring power of attorney has decision‑making capacity or impaired decision-making capacity.
(2)The declaration may be general or relate only to a property matter, personal care matter, health care matter or medical research matter.
(3)In this section:
health care matter, for a principal—see the Powers of Attorney Act 2006, section 12.
medical research matter, for a principal—see the Powers of Attorney Act 2006, section 12A.
personal care matter, for a principal—see the Powers of Attorney Act 2006, section 11.
property matter, for a principal—see the Powers of Attorney Act 2006, section 10.
Removing attorneys
(1)This section applies in relation to an enduring power of attorney if the principal has impaired decision-making capacity.
(2)The ACAT may, by order, remove an attorney under the enduring power of attorney if satisfied that it is in the interests of the principal to remove the attorney.
Part 5Miscellaneous
Temporary appointments
(1)The ACAT may make an emergency order without holding a hearing if satisfied that there are special circumstances of urgency that make it proper to do so.
(2)The emergency order has effect for the period, not longer than 10 days, stated in the order.
(3)In this section:
emergency order means an order appointing the public trustee and guardian to be—
(a)the guardian for a person under section 7; or
(b)a manager of a person’s property under section 8 or section 8AA.
Emergency removal of disabled persons
(1)If—
(a)the president of the ACAT or a judicial officer is satisfied that—
(i)a guardian has been appointed for a person; or
(ii)grounds exist for the appointment of a guardian for a person; and
(b)the person is—
(i)because of a physical, mental, psychological or intellectual condition, likely to suffer serious damage to his or her physical, mental or emotional health if not removed from a particular place; or
(ii)being unlawfully detained in a particular place;
the president of the ACAT or judicial officer may, on application by the public trustee and guardian, issue a warrant authorising the public trustee and guardian, with the police officers that may be required, and using the force that is necessary and reasonable, to enter that place and remove that person.
(2)A warrant must specify—
(a)the purpose for which it is issued; and
(b)the person whose removal it authorises; and
(c)the place from which that removal is authorised; and
(d)particular hours during which the removal is authorised or that removal is authorised at any time of the day or night; and
(e)the date (not later than 14 days after the issue of the warrant) when it ceases to have effect.
(3)Subject to subsection (5), the application must be in writing accompanied by a statement setting out the information in support of the application.
(4)All information, whether oral or in writing, given in support of the application must be given on oath or by statutory declaration.
(5)If it is impracticable to apply in accordance with subsection (3), an application may be made by telephone or other appropriate means.
(6)If subsection (5) applies—
(a)the president of the ACAT or the judicial officer must prepare and sign the warrant and tell the public trustee and guardian its terms; and
(b)the public trustee and guardian must prepare an instrument in the same terms as the warrant and write on it—
(i)the time and date when the warrant was signed; and
(ii)the name of the person who signed the warrant; and
(c)the public trustee and guardian must give the person who signed the warrant, not later than 24 hours after it was signed, the statement mentioned in subsection (3) and the instrument mentioned in paragraph (b); and
(d)while the warrant remains in force, the instrument may be used instead of the warrant; and
(e)a court must not find that the premises were entered in accordance with the warrant unless the warrant signed by the president of the ACAT or judicial officer is admitted in evidence.
(7)As soon as practicable after the person is removed, the ACAT must hold a hearing and, if there is no guardian available, the public trustee and guardian must apply to be appointed as the person’s guardian.
68AEmergency orders—enduring powers of attorney
(1)This section applies if the ACAT is satisfied that there are special circumstances of urgency that make it proper to make an order under this section.
(2)The ACAT may make an order under section 62 (ACAT directions etc for enduring powers of attorney) in relation to an enduring power of attorney without holding a hearing.
68BACAT’s power to revoke health direction
(1)This section applies if—
(a)a person has made a health direction under the Medical Treatment (Health Directions) Act 2006; and
(b)the person becomes a person with impaired decision-making capacity; and
(c)the ACAT appoints a guardian for the principal after the making of the health direction.
(2)The ACAT may revoke the health direction, or part of it, if the ACAT considers appropriate.
Capacity to consent to medical etc procedures
(1)If—
(a)the guardian for a person has the power to give for the person a consent required for a medical procedure or other treatment under section 7 (4) (e); or
(b)a declaration that a person is not competent to give a consent required for a prescribed medical procedure is in force under subsection (2);
the person is not competent to give such a consent for the procedure or treatment.
(2)If a guardian is appointed for a person, the ACAT may, by order, declare that the person is not competent to give a consent required for a prescribed medical procedure.
(3)If a person, who is not competent to do so, purports to consent to the performance of a medical procedure or the provision of other treatment for the person by a doctor, no action or proceeding, civil or criminal, lies against the doctor only because of the performance of the procedure or the provision of the treatment without the person’s consent if—
(a)the doctor did not know, or could not reasonably be expected to know, that the person was not competent to give the consent required; and
(b)the doctor otherwise acted in good faith in performing the procedure or providing the treatment.
Amendment history
Name of Act
s 1sub A2001‑78 amdt 1.1
Dictionary
s 2orig s 2 om A2001‑44 amdt 1.992
(prev 2A) ins A2001‑78 amdt 1.2
sub A2002‑30 amdt 3.398
Notes
s 3orig s 3 am A2000‑2 sch
(prev s 6) also renum as s 3 A2001‑78 amdt 1.9
both s 3 om A2002‑30 amdt 3.399
ins A2002‑30 amdt 3.400
Important concepts and principles
pt 1A hdgins A2001‑78 s 4
Principles to be followed by decision-maker
s 4orig s 4
defs reloc to dict A2001‑78 amdt 1.5
om A2001‑78 amdt 1.6
def Crimes Act sub A2000‑2 sch
om A2001‑78 amdt 1.4
def doctor om A2001‑78 amdt 1.4
def guardian om A2001‑78 amdt 1.4
def lawyer om A1997‑96 sch 1
def manager om A2001‑78 amdt 1.4
def member (1st definition) om A2001‑78 amdt 1.4
def non-regenerative tissue om A2001‑78 amdt 1.4
def property om A2001‑78 amdt 1.4
def trustee company om A2001‑78 amdt 1.4
prev s 4
renum and reloc as s 5A
pres s 4
(prev s 5) ins A2001‑78 s 4
am A2006‑47 s 8
renum as s 4 A2006‑47 s 9
am A2023‑2 s 4, s 5; pars renum R44 LA
When does someone have impaired decision-making ability?
s 5orig s 5
renum and reloc as s 6A
prev s 5
renum as s 4
pres s 5
(prev s 6) ins A2001‑78 s 4
renum as s 5 A2006‑47 s 10
What are a person’s interests?
s 5A(prev s 4) ins A2001‑78 s 4
renum and reloc as s 5A A2006‑47 s 7
Meaning of carer
s 6orig s 6
renum as s 3
prev s 6
renum as s 5
pres s 6
ins A2006‑47 s 11
Limits on finding impaired decision-making ability
s 6A hdg(prev s 5 hdg) sub A2001‑78 amdt 1.7
s 6A(prev s 5) renum and reloc A2001‑78 amdt 1.8
sub A2008‑47 s 4
reloc to pt 1A A2008‑47 s 5
Appointment and powers
div 2.1 hdg(prev pt 2 div 1 hdg) renum R6 LA
Appointment and powers of guardians
s 7am A1999‑32 s 32
sub A2001‑78 s 5
am A2006‑50 amdt 2.1; A2008‑36 amdt 1.312; A2014-51 amdt 1.38, amdt 1.39; A2015-38 amdt 2.78; pars renum R35 LA; A2016‑10 amdt 1.1, amdt 1.2; A2023‑2 s 6; ss renum R44 LA
Appointment of guardians under direction
s 7Ains A2001‑78 s 5
sub A2008‑36 amdt 1.279
Restriction on powers of guardians
s 7Bins A2001‑78 s 5
am A2006‑22 amdt 1.67 (A2006‑22 rep before commenced by disallowance (see Cwlth Gaz 2006 No S93)); A2012‑40 amdt 3.57, A2013‑39 amdt 2.32 (A2013‑39 never effective (see Commonwealth v Australian Capital Territory [2013] HCA 55)); A2024-24 amdt 3.7
Appointment and powers of managers
s 8sub A2001‑78 s 5
am A2008‑36 amdt 1.280, amdt 1.312; A2023‑2 s 7; ss renum R44 LA
Manager for missing person’s property
s 8AAins A2007‑23 s 4
am A2008‑36 amdt 1.281, amdt 1.312; A2016‑1 amdts 1.3‑1.5; A2016‑13 amdt 1.65
Missing people’s property—who may apply for appointment of manager?
s 8ABorig s 8AB
renum as s 8B
pres s 8AB
ins A2007‑23 s 4
am A2016‑1 amdt 1.6, amdt 1.20; pars renum R36 LA
Missing people’s property—powers and term of manager
s 8ACins A2007‑23 s 4
am A2008‑36 amdt 1.282
Restriction on power to appoint manager outside ACT
s 8Ains A2001‑78 s 5
am A2008‑36 amdt 1.312
Effect on guardian or manager of enduring power of attorney in relation to health care
s 8Borig s 8B
renum as s 8C
pres s 8B
(prev s 8AB) ins A2006‑50 amdt 2.2
renum as s 8B R20 LA
am A2008‑36 amdt 1.312; A2011‑28 amdt 3.124; A2016‑10 amdts 1.3-1.5; A2017‑5 amdts 1.4-1.6
May a guardian or manager be appointed for a child?
s 8C(prev s 8B) ins A2001‑78 s 5
renum as s 8C R20 LA
am A2008‑36 amdt 1.283
Who may be appointed
s 9am A2001‑78 amdt 1.10; A2006‑50 amdt 2.11; A2016‑1 amdt 1.7, amdt 1.8, amdt 1.19
Considerations affecting appointment
s 10am A2000‑2 sch; A2001‑78 s 6, amdt 1.11; A2003‑14 amdt 1.62; A2005‑53 amdt 1.58; A2006‑42 amdt 3.56; A2006‑47 s 12; A2006‑50 amdt 2.11; A2008‑36 amdt 1.312; A2010‑30 amdt 1.28; A2016‑1 amdt 1.9, amdt 1.10; A2025‑22 s 13, s 14; ss renum R47 LA
Powers to be least restrictive
s 11am A2001‑78 s 7; A2006‑47 s 13
Recognition of interstate etc guardians and managers
s 12am A2001‑78 amdt 1.11; A2008‑36 amdt 1.312; A2009‑49 amdt 3.79
Restrictions on manager about property
s 14sub A2001‑78 s 8
am A2008‑36 amdt 1.284
Expenses
s 15am A2001‑44 amdt 1.1993
sub A2021‑33 s 19
Supervision
div 2.2 hdg(prev pt 2 div 2 hdg) renum R6 LA
General
sdiv 2.2.1 hdg ins A2021‑13 s 26
Directions by ACAT
s 16 hdgam A2008‑36 amdt 1.312
s 16am A1998‑54 sch; A2000‑2 sch; A2001‑78 amdt 1.12; A2008‑36 amdt 1.312
Restrictions on ACAT’s power to give directions
s 17sub A2008‑36 amdt 1.285
Advice by ACAT
s 18 hdgam A2008‑36 amdt 1.312
s 18am A2000‑2 sch; A2008‑36 amdt 1.312
Review of guardians and managers
s 19 hdg sub A2014-51 amdt 1.40
s 19sub A2008‑36 amdt 1.286
am A2014-51 amdt 1.41, amdt 1.42; A2015-38 amdt 2.78; ss renum R35 LA
If guardians or managers do not comply with Act
sdiv 2.2.2 hdg ins A2021‑13 s 27
ACAT may order compensation etc
s 19Ains A2021‑13 s 27
Compensation under s 19A and later civil proceeding
s 19Bins A2021‑13 s 27
Relief from personal liability by court
s 19Cins A2021‑13 s 27
ACAT may refer matter to Supreme Court
s 19Dins A2021‑13 s 27
Matters relating to management
div 2.3 hdg(prev pt 2 div 3 hdg) renum R6 LA
Access to records
s 20sub A2008‑36 amdt 1.287
Receipt of amounts
s 22sub A2008‑36 amdt 1.288
Investments
s 24am A1995‑36 s 4; A2000‑2 sch; A2001‑78 amdt 1.13
sub A2008‑36 amdt 1.289
am A2016‑13 amdt 1.65
Real estate
s 25am A1993‑64 sch 1; A1995‑54 sch
Accounts—manager other than public trustee and guardian
s 26 hdgsub A2015‑11 amdt 1.26
am A2016‑1 amdt 1.20
s 26am A1998‑54 sch; A2001‑78 amdt 1.14, amdt 1.15; A2008‑36 amdt 1.290; A2016‑1 amdt 1.20
Examination of accounts
s 27am A2001‑44 amdt 1.1994; A2005‑60 amdt 1.102; A2008‑36 amdt 1.312; A2016‑1 amdt 1.20
Accounts—public trustee and guardian
s 27AA hdgam A2016‑1 amdt 1.20
s 27AAins A2015‑11 amdt 1.27
am A2016‑1 amdt 1.20
Missing people’s property—liability of manager and third party dealings
s 27Ains A2007‑23 s 5
Cessation of guardianship or management
div 2.4 hdg(prev pt 2 div 4 hdg) renum R6 LA
Resignation
s 28sub A2008‑36 amdt 1.291
Missing people’s property—ending of order
s 30Ains A2007‑23 s 6
am A2016‑1 amdt 1.11; A2016‑13 amdt 1.65
Removal by ACAT
s 31 hdgam A2008‑36 amdt 1.312
s 31am A2000‑2 sch; A2007‑23 s 7, s 8; A2008‑36 amdt 1.312
Surviving or substitute guardians etc
s 32am A2006‑50 amdt 2.11; A2008‑36 amdt 1.312; A2016‑1 amdt 1.12, amdt 1.13, amdt 1.19; A2017‑38 s 40, s 41
Consent to medical treatment without formal representation
pt 2A hdgins A2008‑47 s 6
Definitions—pt 2A
s 32Ains A2008‑47 s 6
def carer ins A2008‑47 s 6
def close relative or close friend ins A2008‑47 s 6
def domestic partner ins A2008‑47 s 6
am A2012‑40 amdt 3.58
def health attorney ins A2008‑47 s 6
def health professional ins A2008‑47 s 6
sub A2014-51 amdt 1.43
am A2015-38 amdt 2.78
def medical treatment ins A2008‑47 s 6
am A2014-51 amdt 1.44; A2015-38 amdt 2.78; A2016‑10 amdt 1.6
def priority order ins A2008‑47 s 6
def protected person ins A2008‑47 s 6
am A2009‑20 amdt 3.84; A2014-51 amdt 1.45; A2015-38 amdt 2.78
def remuneration or reward ins A2008‑47 s 6
Who is a health attorney for a protected person?
s 32Bins A2008‑47 s 6
am A2009‑49 amdt 3.80
Who is a carer for a protected person?
s 32Cins A2008‑47 s 6
Health attorney may give consent
s 32Dins A2008‑47 s 6;
am A2014-51 amdt 1.46, amdt 1.47; A2015-38 amdt 2.78; A2016‑13 amdt 1.66; A2016‑10 amdts 1.7-1.11; ss renum R38 LA; A2023‑13 s 14
Decision-making principles apply
s 32Eins A2008‑47 s 6
am A2016‑10 amdt 1.12, amdt 1.13
Decision about health attorney
s 32Fins A2008‑47 s 6
am A2016‑10 amdt 1.14
Health professional must give information to health attorney
s 32Gins A2008‑47 s 6
am A2016‑10 amdt 1.15, amdt 1.16; A2023‑13 s 15
Referring matters to public trustee and guardian—refusal of consent
s 32H hdgam A2016‑1 amdt 1.19
s 32Hins A2008‑47 s 6
am A2009‑20 amdt 3.85; A2016‑1 amdt 1.19; A2016‑10 amdt 1.17
Referring matters to public trustee and guardian—disagreement between health attorneys
s 32I hdgam A2016‑1 amdt 1.19
s 32Iins A2008‑47 s 6
am A2009‑20 amdt 3.86; A2016‑1 amdt 1.19; A2016‑10 amdt 1.18
Notice to public advocate—long term treatment
s 32J hdgam A2016‑1 amdt 1.19
s 32Jins A2008‑47 s 6
am A2014-51 amdt 1.48; A2015-38 amdt 2.78; A2016‑1 amdt 1.19
sub A2016‑10 amdt 1.19
Notice and duration of consent—mental health treatment, care or support
s 32JAins A2014-51 amdt 1.49
am A2015-38 amdt 2.78
Note for s 32JA s 32JA also ins A2016‑10 amdt 1.20
renum as s 32JB R38 LA
Interested person may apply to ACAT for review of health attorney’s decision
s 32JB(prev s 32JA) ins A2016‑10 amdt 1.20
renum as s 32JB R38 LA
am A2021‑13 s 28
Protection of health attorney from liability
s 32Kins A2008‑47 s 6
Protection of health professional from liability
s 32Lins A2008‑47 s 6
Preservation of liability
s 32Mins A2008‑47 s 6
am A2016‑10 amdt 1.21, amdt 1.22
Urgent medical treatment
s 32Nins A2008‑47 s 6
Interested person may withdraw health attorney’s consent to low-risk research
s 32Oins A2016‑10 amdt 1.23
Health attorney must not benefit from health attorney’s decision
s 32Pins A2016‑10 amdt 1.23
Medical research and low risk research
pt 2B hdgins A2016‑10 amdt 1.24
Guardian may consent to protected person’s participation in low-risk research
s 33sub A2006‑50 amdt 2.3
om A2008‑36 amdt 1.292
ins A2016‑10 amdt 1.24
Guardian may consent to protected person’s participation in medical research
s 34am A2000‑2 sch
om A2008‑36 amdt 1.292
ins A2016‑10 amdt 1.24
Guardian must not benefit from guardian’s decision
s 35am A1999‑66 sch 3; A2003‑14 amdt 1.62; A2006‑47 s 14, s 15; pars renum R18 LA; A2006‑50 amdt 2.4; A2007‑23 s 9; pars renum R20 LA (see A2007‑23 s 10)
om A2008‑36 amdt 1.292
ins A2016‑10 amdt 1.24
Assessment of likelihood of principal regaining decision‑making capacity
s 36am A1997‑96 sch 1; A2001‑78 amdt 1.16
om A2008‑36 amdt 1.292
ins A2016‑10 amdt 1.24
Appearance by audiovisual or audio links
s 36Ains A1999‑22 s 14
am A2000‑17 sch 1; A2001‑78 amdt 1.17; A2003‑48 amdt 2.8
om A2008‑36 amdt 1.292
Interested person may apply to ACAT for review of guardian’s decision
s 37om A2008‑36 amdt 1.292
ins A2016‑10 amdt 1.24
am A2021‑13 s 28
Evidence
s 38am A1999‑66 sch 3; A2005‑53 amdt 1.59
om A2008‑36 amdt 1.292
Authority for medical or other examinations
s 39am A1999‑66 sch 3
om A2008‑36 amdt 1.292
Assistance for tribunal
s 40am A1997‑96 sch 1; A2001‑78 amdt 1.18; A2006‑50 amdt 2.5
om A2008‑36 amdt 1.292
Power to obtain information and documents
s 41am A1999‑66 sch 3
om A2008‑36 amdt 1.292
Privileges against selfincrimination and exposure to civil penalty
s 41Ains A2005‑53 amdt 1.60
om A2008‑36 amdt 1.292
Retention of documents
s 42am A1999‑66 sch 3; A2005‑53 amdt 1.61
om A2008‑36 amdt 1.292
Form of orders
s 43am A2001‑78 amdt 1.19
om A2008‑36 amdt 1.292
Proof of orders
s 44om A2008‑36 amdt 1.292
Obtaining reasons for decisions
s 45am A1999‑66 sch 3
om A2008‑36 amdt 1.292
Withdrawal of applications
s 46om A2008‑36 amdt 1.292
Costs
s 47om A2008‑36 amdt 1.292
Removal of people disrupting inquiries
s 48am A1998‑54 sch; A1999‑66 sch 3; A2001‑78 amdt 1.20
om A2008‑36 amdt 1.292
Prohibited publications
s 49am A1998‑54 sch; A1999‑66 sch 3; A2001‑78 amdt 1.21
om A2008‑36 amdt 1.292
Failure to answer questions etc
s 50am A1998‑54 sch; A2001‑78 amdt 1.22; A2002‑11 amdt 2.49; A2002‑51 amdt 1.22
om A2005‑53 amdt 1.62
Failure to attend before tribunal
s 51am A1998‑54 sch; A1999‑66 sch 3
om A2005‑53 amdt 1.62
Refusing to be sworn etc
s 52am A1998‑54 sch
om A2005‑53 amdt 1.62
False information etc
s 53am A1998‑54 sch; A2001‑78 amdt 1.23
om A2005‑53 amdt 1.62
Influencing participants in inquiry
s 54am A1998‑54 sch
om A2005‑53 amdt 1.62
Application of Criminal Code, ch 7
s 55am A1998‑54 sch; A2000‑2 sch
sub A2005‑53 amdt 1.62
om A2008‑36 amdt 1.292
Appeals from tribunal to Supreme Court
s 56am A2004‑60 amdt 1.153, amdt 1.154
sub A2006‑40 amdt 2.112
am A2006‑50 amdt 2.6
om A2008‑36 amdt 1.292
Establishment
s 57om A2008‑36 amdt 1.292
Functions and powers
s 58sub A1999‑66 sch 3; A2000‑2 sch
am A2001‑78 amdts 1.24-1.26
sub A2006‑50 amdt 2.7
om A2008‑36 amdt 1.292
Membership of tribunal
s 59sub A1999‑66 sch 3; A2000‑2 sch
am A2008‑28 amdt 3.96
om A2008‑36 amdt 1.292
Presidential members
s 60am A1999‑66 sch 3
sub A2000‑2 sch
om A2008‑36 amdt 1.292
Powers of attorney and ACAT
pt 3 hdgsub A2008‑36 amdt 1.292
Procedure
div 3.1 hdg(prev pt 3 div 1 hdg) renum R6 LA
om A2008‑36 amdt 1.292
Miscellaneous
div 3.2 hdg(prev pt 3 div 2 hdg) renum R6 LA
om A2008‑36 amdt 1.292
Appeals
div 3.3 hdg(prev pt 3 div 3 hdg) renum R6 LA
om A2008‑36 amdt 1.292
Definitions—pt 3
s 61sub A2000‑2 sch; A2008‑36 amdt 1.292
def decision-making capacity ins A2008‑36 amdt 1.292
def interested person ins A2008‑36 amdt 1.292
def power of attorney ins A2008‑36 amdt 1.292
def principal ins A2008‑36 amdt 1.292
ACAT directions etc for enduring powers of attorney
s 62sub A2000‑2 sch; A2008‑36 amdt 1.292
am A2017‑5 amdt 1.7, amdt 1.8 pars renum R39 LA; A2021‑3 s 16, s 17
Reference of power of attorney matters to Supreme Court
s 63am A1999‑66 sch 3
sub A2000‑2 sch; A2008‑36 amdt 1.292
Request for accounts—enduring powers of attorney
s 64 hdgsub A2016‑1 amdt 1.14
s 64am A1994‑38 sch 1
sub A2000‑2 sch
am A2006‑42 amdt 3.57
sub A2008‑36 amdt 1.292
am A2016‑1 amdt 1.15, amdt 1.16, amdt 1.20; A2016‑13 amdt 1.67; A2021‑3 s 18, s 19
Declaration about decision-making capacity
s 65sub A2000‑2 sch; A2008‑36 amdt 1.292
am A2016‑10 amdt 1.25, amdt 1.26
Removing attorneys
s 66am A1998‑54 sch
sub A2000‑2 sch; A2008‑36 amdt 1.292
Role of president
s 66Ains A2000‑2 sch
om A2008‑36 amdt 1.292
Deciding questions
s 66Bins A2000‑2 sch
am A2006‑50 amdt 2.8
om A2008‑36 amdt 1.292
Protection of members etc
s 66Cins A2000‑2 sch
om A2008‑36 amdt 1.292
Secrecy
s 66Dins A2000‑2 sch
om A2008‑36 amdt 1.292
Guardianship and management of property tribunal
pt 4 hdgom A2008‑36 amdt 1.292
Establishment, functions and powers
div 4.1 hdg(prev pt 4 div 1 hdg) ins A2000‑2 sch
renum R6 LA
om A2008‑36 amdt 1.292
Tribunal members
div 4.2 hdg(prev pt 4 div 2 hdg) ins A2000‑2 sch
renum R6 LA
om A2008‑36 amdt 1.292
Registrar and deputy registrars
div 4.3 hdg(prev pt 4 div 3 hdg) ins A2000‑2 sch
renum R6 LA
om A2008‑36 amdt 1.292
Other provisions
div 4.4 hdg(prev pt 4 div 4 hdg) ins A2000‑2 sch
renum R6 LA
om A2008‑36 amdt 1.292
Temporary appointments
s 67 hdgsub A2008‑47 s 7
s 67am A2006‑50 amdt 2.11; A2007‑23 s 11
sub A2008‑36 amdt 1.293
am A2016‑1 amdt 1.17, amdt 1.20
Emergency removal of disabled persons
s 68am A1999‑66 sch 3; A2005‑53 amdt 1.63; A2006‑50 amdt 2.11; A2008‑36 amdt 1.294, amdt 1.295; A2016‑1 amdt 1.19; A2016‑28 amdt 1.4; A2025‑22 s 15
Emergency orders—enduring powers of attorney
s 68Ains A2006‑50 amdt 2.9
sub A2008‑36 amdt 1.296
ACAT’s power to revoke health direction
s 68Bins A2006‑50 amdt 2.9
sub A2008‑36 amdt 1.296
Capacity to consent to medical etc procedures
s 69am A2008‑36 amdt 1.312; A2016‑10 amdt 1.27
ACAT may consent to prescribed medical procedures
s 70 hdgsub A2008‑36 amdt 1.297
s 70am A1994‑45 s 34; A2005‑48 amdt 1.6, amdt 1.7; A2006‑50 amdt 2.11; A2008‑36 amdt 1.298, amdt 1.312; A2014-51 amdts 1.50-1.52; A2015-38 amdt 2.78; A2016‑1 amdt 1.19; A2023‑23 s 48
Restrictions on consent by guardian to mental health treatment, care or support
s 70Ains A2014-51 amdt 1.53
am A2015-38 amdt 2.78
Power to adjust transactions
s 71am A2008‑36 amdt 1.312
Injunctions to restrain dealings
s 72am A1998‑54 sch; A2001‑78 amdt 1.27; A2008‑36 amdt 1.312
Notice of meeting
s 72Ains A2008‑36 amdt 1.299
am A2016‑1 amdt 1.18; pars renum R36 LA
Authority for medical or other examinations
s 72Bins A2008‑36 amdt 1.299
Power to obtain information and documents
s 72Cins A2009‑44 amdt 1.28
Medical certificate about impaired decision-making capacity
s 72Dins A2016‑10 amdt 1.28
Acts and omissions of representatives
s 73sub A2001‑78 amdt 1.28; A2004‑15 amdt 1.25
Criminal liability of executive officers
s 74om A1998‑54 sch
ins A2001‑78 amdt 1.28
am A2010‑50 amdt 1.3; A2011‑28 amdt 3.125
sub A2013-4 amdt 1.5
Certain things done or omitted to be done not invalid
s 74Ains A2025‑22 s 16
exp 13 September 2025 (s 74A (3))
Determination of fees
s 75sub A2001‑44 amdt 1.1995
am A2006‑42 amdt 3.58; A2016‑1 amdt 1.20; A2021‑33 s 20
Approved forms
s 75Ains A2008‑47 s 8
am A2011‑22 amdt 1.231
Annual report
s 76om A1995‑25 sch
Regulation-making power
s 77am A1998‑54 sch
sub A2000‑2 sch
am A2001‑44 amdt 1.1996, amdt 1.1997; A2008‑36 amdt 1.300; ss renum R22 LA
Transitional provisions about tribunal members
s 78ins A2000‑2 sch
exp 9 June 2000 (s 78 (4))
Dictionary
dictins A2001‑78 amdt 1.29
am A2002‑30 amdt 3.401; A2003‑14 amdt 1.63; A2005‑53 amdt 1.64; A2008‑36 amdt 1.301; A2010‑30 amdt 1.29; A2012‑40 amdt 3.59, A2013‑39 amdt 2.33, amdt 2.34 (A2013‑39 never effective (see Commonwealth v Australian Capital Territory [2013] HCA 55)); A2021‑13 s 29
def approved ins A2016‑10 amdt 1.29
def carer ins A2006‑47 s 16
sub A2008‑47 s 9
def close relative or close friend ins A2008‑47 s 10
def convulsive therapy ins A1994‑45 s 34
reloc from s 4 A2001‑78 amdt 1.5
om A2005‑48 amdt 1.8
def decision-making capacity ins A2008‑36 amdt 1.302
def decision-making principles ins A2001‑78 amdt 1.29
sub A2006‑47 s 17
def deputy president ins A1999‑66 sch 3
reloc from s 4 A2001‑78 amdt 1.5
om A2008‑36 amdt 1.303
def domestic partner ins A2008‑47 s 10
def electroconvulsive therapy ins A2005‑48 amdt 1.9
sub A2015-38 amdt 2.79
def enduring power of attorney ins A2006‑50 amdt 2.10
def executive officer ins A2001‑78 amdt 1.29
om A2011‑28 amdt 3.126
def general president ins A2008‑36 amdt 1.304
om A2016‑28 amdt 1.5
def guardian ins A2001‑78 amdt 1.29
def health attorney ins A2008‑47 s 10
def health professional ins A2008‑47 s 10
def impaired decision-making ability ins A2001‑78 amdt 1.29
sub A2006‑47 s 18
def inquiry reloc from s 4 A2001‑78 amdt 1.5
om A2008‑36 amdt 1.305
def interested person ins A2008‑36 amdt 1.306
sub A2021‑13 s 30
def interests ins A2006‑47 s 19
def judicial officer reloc from s 4 A2001‑78 amdt 1.5
def low-risk research ins A2016‑10 amdt 1.29
def manager ins A2001‑78 amdt 1.29
sub A2007‑23 s 12
def medical research ins A2016‑10 amdt 1.29
def medical treatment ins A2008‑47 s 10
def member ins A2000‑2 sch
reloc from s 4 A2001‑78 amdt 1.5
om A2008‑36 amdt 1.307
def mental illness ins A2005‑48 amdt 1.9
am A2014-51 amdt 1.54
sub A2015-38 amdt 2.79
def neurosurgery ins A1994‑45 s 34
reloc from s 4 A2001‑78 amdt 1.5
om A2011‑28 amdt 3.127
def non-presidential member ins A1999‑66 sch 3
reloc from s 4 A2001‑78 amdt 1.5
om A2008‑36 amdt 1.307
def non-regenerative tissue ins A2001‑78 amdt 1.29
am A2007‑3 amdt 3.287
def power of attorney ins A2008‑36 amdt 1.308
def prescribed medical procedure am A1994‑45 s 34; pars renum R6 LA (see A2001‑78 amdt 1.3)
reloc from s 4 A2001‑78 amdt 1.5
am A2005‑48 amdt 1.10; A2014-51 amdt 1.55
def president reloc from s 4 A2001‑78 amdt 1.5
om A2008‑36 amdt 1.309
ins A2016‑28 amdt 1.6
def presidential member ins A1999‑66 sch 3
reloc from s 4 A2001‑78 amdt 1.5
om A2008‑36 amdt 1.309
def primary carer ins A2001‑78 amdt 1.29
om A2006‑47 s 20
def principal ins A2008‑36 amdt 1.310
def priority order ins A2008‑47 s 10
def protected person ins A2008‑47 s 10
def psychiatric illness ins A1994‑45 s 34
reloc from s 4 A2001‑78 amdt 1.5
om A2005‑48 amdt 1.11
def psychiatric surgery ins A1994‑45 s 34
reloc from s 4 A2001‑78 amdt 1.5
sub A2005‑48 amdt 1.12; A2015-38 amdt 2.79
def remuneration or reward ins A2008‑47 s 10
def spouse reloc from s 4 A2001‑78 amdt 1.5
om A2003‑14 amdt 1.64
def tribunal reloc from s 4 A2001‑78 amdt 1.5
om A2008‑36 amdt 1.311
def trustee company ins A2001‑78 amdt 1.29
Earlier republications
Some earlier republications were not numbered. The number in column 1 refers to the publication order.
Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register. A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1. Electronic and printed versions of an authorised republication are identical.
Republication No and date Effective Last amendment made by Republication for R1 (RI)
25 Aug 20171 Oct 1993–
30 June 1994A1993-64 amendments by A1993-64
reissue of printed versionR1A
25 Aug 20171 July 1994–
5 Feb 1995A1994-38 amendments by A1994-38 R2 (RI)
25 Aug 20176 Feb 1995–
4 Sept 1995A1994-45 amendments by A1994-45
reissue of printed versionR2A
25 Aug 20175 Sept 1995–
30 Oct 1995A1995-25 amendments by A1995-25 R2B
25 Aug 201731 Oct 1995–
19 June 1996A1995-36 amendments by A1995-36 R2C
25 Aug 201720 June 1996–
31 May 1998A1995-54 amendments by A1995-54 R3 (RI)
25 Aug 20171 June 1998–
8 Dec 1998A1997-96 amendments by A1997-96
reissue of printed versionR3A
25 Aug 20179 Dec 1998–
31 Aug 1999A1998-54 amendments by A1998-54 R3B
25 Aug 20171 Sept 1999–
30 Sept 1999A1999-22 amendments by A1999-22 R3C
25 Aug 20171 Oct 1999–
9 Nov 1999A1999-32 amendments by A1999-32 R3D
25 Aug 201710 Nov 1999–
8 Mar 2000A1999-66 amendments by A1999-66 R4 (RI)
25 Aug 20179 Mar 2000–
31 May 2000A2000-2 amendments by A2000-2
reissue of printed versionR4A
25 Aug 20171 June 2000–
8 June 2000A2000-17 amendments by A2000-17 R4B
25 Aug 20179 June 2000–
11 Sept 2001A2000-17 expiry of transitional provision (s 78) R5
11 Oct 200124 Sept 2001–
27 May 2002A2001-78 amendments by A2001-44 and A2001-78 R6
28 May 200228 May 2002–
16 Sept 2002A2002-11 amendments by A2002-11 R7
10 Oct 200217 Sept 2002–
31 Dec 2002A2002-30 amendments by A2002-30 R8
1 Jan 20031 Jan 2003–
27 Mar 2003A2002-51 amendments by A2002-51 R9
28 Mar 200328 Mar 2003–
8 Apr 2004A2003-14 amendments by A2003-14 R10
9 Apr 20049 Apr 2004–
29 Apr 2004A2004-15 amendments by A2004-15 R11*
30 Apr 200430 Apr 2004–
9 Jan 2005A2003-48 amendments by A2003-48 R12
10 Jan 200510 Jan 2005–
6 Sept 2005A2004-60 amendments by A2004-60 R13
7 Sept 20057 Sept 2005–
22 Nov 2005A2005-48 amendments by A2005-48 R14
23 Nov 200523 Nov 2005–
21 Dec 2005A2005-53 amendments by A2005-53 R15
22 Dec 200522 Dec 2005–
28 Sept 2006A2005-60 amendments by A2005-60 R16
29 Sept 200629 Sept 2006–
15 Nov 2006A2006-40 amendments by A2006-40 R17
16 Nov 200616 Nov 2006–
27 May 2007A2006-42 amendments by A2006-42 R18
28 May 200728 May 2007–
29 May 2007A2006-47 amendments by A2006-47 R19*
30 May 200730 May 2007–
5 Sept 2007A2007-3 amendments by A2006-50 and A2007-3 R20
6 Sept 20076 Sept 2007–
25 Aug 2008A2007-23 amendments by A2007-23 R21
26 Aug 200826 Aug 2008–
1 Feb 2009A2008-28 amendments by A2008-28 R22
2 Feb 20092 Feb 2009–
21 Sept 2009A2008-47 amendments by A2008-36 and A2008-47 R23
22 Sept 200922 Sept 2009–
16 Dec 2009A2009-20 amendments by A2009-20 R24
17 Dec 200917 Dec 2009–
21 Dec 2009A2009-49 amendments by A2009-49 R25
22 Dec 200922 Dec 2009–
27 Sept 2010A2009-44 amendments by A2009-44 R26
28 Sept 201028 Sept 2010–
20 Dec 2010A2010-30 amendments by A2010-30 R27
21 Dec 201021 Dec 2010–
30 June 2011A2010-50 amendments by A2010-50 R28
1 July 20111 July 2011–
20 Sept 2011A2011-22 amendments by A2011-22 R29
21 Sept 201121 Sept 2011–
10 Sept 2012A2011-28 amendments by A2011-28 R30
11 Sept 201211 Sept 2012–
21 Feb 2013A2012-40 amendments by A2012-40 R31
22 Feb 201322 Feb 2013–
6 Nov 2013A2013-4 amendments by A2013-4 R32
7 Nov 2013never effective A2013-39 (never effective) amendments by A2013-39
Never effective because of High Court decision in relation to
A2013-39 (see reissued republication)R32 (RI)
24 Feb 20147 Nov 2013–
20 May 2015A2013-39 (never effective) Reissued because of High Court decision in relation to A2013-39 R33
21 May 201521 May 2015–
7 Oct 2015A2015-11 amendments by A2015-11 R34
8 Oct 20158 Oct 2015–
29 Feb 2016A2015-11 updated endnotes as amended by A2015-38 R35
1 Mar 20161 Mar 2016–
31 Mar 2016A2015-38 amendments by A2014-51 and A2015-38 R36
1 Apr 20161 Apr 2016–
15 June 2016A2016-13 amendments by A2016-1 and A2016-13 R37
16 June 201616 June 2016–
31 Aug 2016A2016-28 amendments by A2016-28 R38
1 Sept 20161 Sept 2016–
1 Mar 2017A2016-28 amendments by A2016-10 R39
2 Mar 20172 Mar 2017–
15 Nov 2017A2017-5 amendments by A2017-5 R40
16 Nov 201716 Nov 2017–
25 Feb 2021A2017-38 amendments by A2017-38 R41
26 Feb 202126 Feb 2021–
8 Sept 2021A2021-3 amendments by A2021-3 R42
9 Sept 20219 Sept 2021–
9 Mar 2022A2021‑13 amendments by A2021‑13 R43
10 Mar 202210 Mar 2022–
15 Feb 2023A2021‑33 amendments by A2021‑33 R44
16 Feb 202316 Feb 2023–
11 Apr 2023A2023‑2 amendments by A2023‑2 R45
12 Apr 202312 Apr 2023–
22 Dec 2023A2023‑13 amendments by A2023‑13 R46
23 Dec 202323 Dec 2024–
12 Sept 2025A2023‑23 amendments by A2023‑23 R47
13 Sep 202513 Sept 2025–
13 Sept 2025A2025‑22 amendments by A2025‑22 R48
14 Sept 202514 Sept 2025–
2 Nov 2025A2025‑22 expiry of validation provision (s 74A)
Expired transitional or validating provisions
This Act may be affected by transitional or validating provisions that have expired. The expiry does not affect any continuing operation of the provisions (see Legislation Act 2001, s 88 (1)).
Expired provisions are removed from the republished law when the expiry takes effect and are listed in the amendment history using the abbreviation ‘exp’ followed by the date of the expiry.
To find the expired provisions see the version of this Act before the expiry took effect. The ACT legislation register has point-in-time versions of this Act.
© Australian Capital Territory 2025
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