Untitled document

Guardianship and Administration (Amendment)

Act 1999

Act No. 40/1999

TABLE OF PROVISIONS

Section	Page
PART 1—PRELIMINARY	1

1.	Purposes	1
2.	Commencement	2

PART 2—AMENDMENT OF GUARDIANSHIP AND

ADMINISTRATION ACT 1986 3

3.	Principal Act	3
4.	Definitions	3
5.	Objects	6
6.	Public Advocate	6
7.	Guardianship orders	8
8.	Authority of plenary guardian	8
9.	Power to enforce guardianship order	8
10.	Special powers in respect of persons with a disability	9
11.	Temporary orders—guardians	9
12.	New Division 5A inserted	10
Division 5A—Appointment of Enduring Guardian	10

35A.	Appointment of enduring guardian	10
35B.	Authority of enduring guardian	11
35C.	Revocation of appointment by appointor	12
35D.	Revocation of appointment by Tribunal	13
35E.	Advice or direction of Tribunal	14

13.	Division 6 of Part 4 repealed	15
14.	New Part 4A inserted	15
PART 4A—MEDICAL AND OTHER TREATMENT	15
Division 1—Preliminary	15

36.	Persons to whom Part applies	15
37.	Person responsible	15
38.	Best interests	18

Division 2—Consent 18

i

Section Page

39.	Persons who may consent to medical or other treatment	18
40.	Effect of consent	19
41.	Refusal of medical treatment under the Medical
Treatment Act 1988	19
42.	Unlawful consent to medical or other treatment an
offence	19

Division 3—Emergency Treatment 20

42A. Emergency medical or dental treatment 20

Division 4—Special Procedures	21
42B.	Application for consent of Tribunal to special procedure 21
42C.	Guidelines for special procedures 21
42D.	Date for hearing 22
42E.	Consent of Tribunal to special procedure 22
42F.	Tribunal may confer authority to consent to continuing
or further special procedure 22
42G.	Special procedure without consent of Tribunal an
offence 23
Division 5—Other Medical or Dental Treatment	24

42H.	Consent of person responsible	24
42I.	Person responsible may seek advice	25
42J.	Guidelines for medical or dental treatment	26
42K.	Medical or dental treatment without consent of person
responsible	26
42L.	Medical or dental treatment if person responsible does
not consent	28
42M.	Statement by registered practitioner	29
42N.	Application to Tribunal relating to medical or dental
treatment	30
42O.	Protection of registered practitioner	32

15.	Persons eligible as administrator	33
16.	New section 47A inserted	34

47A. Remuneration of professional administrator 34

17.	Accounts	35
18.	Temporary orders—administrators	36
19.	Reviews of orders	37
20.	New Part 6A inserted	37
PART 6A—INTERSTATE ORDERS	37

63A.	Application of Part	37
63B.	Definitions	38
63C.	Corresponding laws and orders	38
63D.	Ministerial agreements	39
63E.	Registration of interstate orders	39

ii

Section Page

63F.	Review of interstate orders	40
63G.	Reciprocal arrangements under the State Trustees
(State Owned Company) Act 1994	40

21. New section 81A inserted 40

81A. Supreme Court—Limitation of jurisdiction 40

22.	Regulations	41
23.	New Part 9 inserted	41
PART 9—TRANSITIONAL PROVISION	41

86.          Enduring powers of attorney under the Instruments

Act 1958 41

24.	Statute law revision	42
25.	New Schedule inserted	42
SCHEDULE 4—Instruments relating to enduring guardian	42

Form 1—Appointment of enduring guardian	42
Form 2—Revocation of appointment of enduring guardian	46

PART 3—CONSEQUENTIAL AMENDMENTS 47

26. Mental Health Act 1986 47

═══════════════

NOTES 50

iii

Victoria

No. 40 of 1999

Guardianship and Administration

(Amendment) Act 1999†

[Assented to 8 June 1999]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purposes

The purposes of this Act are—

(a)

to amend the Guardianship and for—

(i) enduring guardians; and

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999 s. 2

(ii)  consent to medical or dental treatment on behalf of persons incapable of giving consent to such treatment; and

(iii)	registration of interstate guardianship and administration orders; and
(b)	to make other miscellaneous amendments to the Guardianship and Administration Act 1986 and consequential amendments to the

Mental Health Act 1986.

2. Commencement

(1) Part 1 comes into operation on the day on which this Act receives the Royal Assent.

(2) Subject to sub-section (3), the remaining

provisions of this Act come into operation on a

day or days to be proclaimed.

(3) If a provision referred to in sub-section (2) does

not come into operation before 1 January 2000, it

comes into operation on that day.

_______________
Guardianship and Administration (Amendment) Act 1999

s. 3 Act No. 40/1999

PART 2—AMENDMENT OF GUARDIANSHIP AND

ADMINISTRATION ACT 1986

3. Principal Act

No. 58/1986.	In this Part, the Guardianship and
Reprint No. 4
as at	Administration Act 1986 is called the Principal
11 February	Act.
1999.

4. Definitions

(1) In section 3(1) of the Principal Act—

(a) insert—
' "appointor" means a person who appoints

an enduring guardian under Division
5A of Part 4;

"emergency treatment" means treatment under section 42A;

"enduring guardian" means a person appointed as an enduring guardian under Division 5A of Part 4;

"medical or dental treatment" means—

(a)	medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by, or under, the supervision of a registered practitioner; or
(b)	dental procedure, operation or examination) normally carried out

dental treatment (including any registered practitioner; or

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999	s. 4
(c)	any other treatment not referred to in paragraphs (a) and (b) that is prescribed by the regulations to be medical or dental treatment for the purposes of this Act—

but does not include—

(d) a special procedure; or

(e) any non-intrusive examination
made for diagnostic purposes
(including a visual examination of
the mouth, throat, nasal cavity,
eyes or ears); or

(f) first-aid treatment; or

(g)	the administration of a pharmaceutical drug for the purpose and in accordance with the dosage level—
(i) prescription is required,

if the drug is one for which a practitioner; or

(ii) prescription is not required and
which is normally self-
administered, recommended in
the manufacturer's instructions

if the drug is one for which a or

(h) any other kind of treatment that is prescribed by the regulations not to be medical or dental treatment for the purposes of this Act;

"person responsible" has the meaning given by section 37;

Guardianship and Administration (Amendment) Act 1999

s. 4 Act No. 40/1999

"registered practitioner" means a

registered medical practitioner within the meaning of the Medical Practice Act 1994 or a dentist within the

meaning of the Dentists Act 1972;

"special procedure" means—

(a) is reasonably likely, to have the
effect of rendering permanently

any procedure that is intended, or carried out; or

(b) any procedure carried out for the purposes of medical research; or

(c) termination of pregnancy; or

(d)	any removal of tissue for the purposes of transplantation to another person; or
(e)	treatment that is prescribed by the regulations to be a special

any other medical or dental Part 4A;

"State Trustees" has the same meaning as

in the State Trustees (State Owned
Company) Act 1994;';

(b)	in the definition of "administrator" for "the State Trust or any other person" substitute "the person";
(c)	for the definition of "disability" substitute— ' "disability", in relation to a person, means

intellectual impairment, mental disorder, brain injury, physical disability or dementia;';

(d) for the definition of "guardian" substitute—

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999 s. 5

' "guardian" means—

(a) body named as a plenary guardian

the Public Advocate, person or guardianship order; or

(b)	a person who becomes a guardian under section 35; or
(c)

a person named as an enduring appointing such a guardian;';

(e) the definition of "major medical procedure" is repealed.

(2) For section 3(3) of the Principal Act substitute— "(3) Nothing in this Act affects any requirement

relating to obtaining authorisation or
approval for the carrying out of any medical

research.".

5. Objects

In section 4(1) of the Principal Act, after paragraph (d) insert—

"; and

(e)	to provide for the appointment of enduring guardians; and
(f)	to provide for consent to medical and dental treatment on behalf of persons incapable of giving consent to such treatment; and
(g)

to provide for the registration of interstate orders.".

6. Public Advocate

Guardianship and Administration (Amendment) Act 1999
Act No. 40/1999

(1) In section 15(b) of the Principal Act omit "co-ordinate and".

(2) In section 16(1) of the Principal Act—

(a) plenary or limited); and";

in paragraph (a), for sub-paragraphs (ii) and "(ii) an alternative guardian (whether

(b) after paragraph (h) insert— "(ha) for the purposes of an investigation

under paragraph (h) or the provision of a report under clause 35 in Schedule 1 to the Victorian Civil and

Administrative Tribunal Act 1998,
request a person, government
department, institution, welfare
organisation or service provider to

provide information; and";

(c) after paragraph (j) insert— "(ja) make recommendations to the Tribunal

with respect to guidelines proposed to
be issued by the Tribunal about consent
to a special procedure and any other
medical or dental treatment under

Part 4A.".

(3) In section 16(2) of the Principal Act—

(a)	omit "or as the administrator of the estate of a represented person";
(b) (c) in paragraph (b) omit "or administrator".	in paragraph (a) omit "or the administrator case may be";

(4) In section 18(1)(b) of the Principal Act omit "or

administrator".

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999 s. 7

7. Guardianship orders

In section 22 of the Principal Act, for sub-section
(2) substitute—

"(2) In determining whether or not a person is in

need of a guardian, the Tribunal must

consider—

(a)	whether the needs of the person in respect of whom the application is made could be met by other means less
restrictive of the person's freedom of decision and action; and
(b)	the wishes of any nearest relatives or other family members of the proposed represented person; and
(c)	the desirability of preserving existing family relationships.".

8. Authority of plenary guardian

In section 24(2) of the Principal Act—

(a) in paragraph (d), for "Division 6" substitute "Part 4A";

(b) after paragraph (d) insert—

"; and

(e) to restrict visits to a represented person to such extent as may be necessary in his or her best interests and to prohibit visits by any person if the guardian reasonably believes that they would have an adverse effect on the represented person.".

9. Power to enforce guardianship order

After section 26(1) of the Principal Act insert—

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999

"(1A) If the Tribunal makes an order under sub-

specified person to take such measures or
actions as are specified in the order, the

section (1) empowering a guardian or a order as soon as practicable after the making of that order but within 42 days of making that order.".

10. Special powers in respect of persons with a disability

In section 27(2) of the Principal Act, for "and cared for at a place specified in the order" substitute "a place specified in the order for assessment and placement".

11. Temporary orders—guardians

(1) In section 32(1) of the Principal Act, for "the Public Advocate as the guardian" substitute "a guardian".

(2) In section 33(1) of the Principal Act, for "the

Public Advocate" substitute "any person eligible to be appointed under section 23".

(3) For section 33(2) of the Principal Act

substitute—

"(2) A temporary order—

(a)	remains in effect for such period not exceeding 21 days as is specified in the order; and
(b)	may be renewed once for a further period not exceeding 21 days.".

(4) In section 33(3) of the Principal Act, for "before the expiry of the temporary order" substitute "as soon as practicable after the making of a

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Act No. 40/1999 s. 12

temporary order but within 42 days of making that

order".

12. New Division 5A inserted

After section 35 of the Principal Act insert—

"Division 5A—Appointment of Enduring

Guardian

35A. Appointment of enduring guardian

(1) A person who is of or over the age of

18 years may, by instrument in writing,
appoint a person to be his or her enduring

guardian.

(2) An instrument to appoint an enduring

guardian is effective if—

(a)	it is in the form of, or to the effect of, Form 1 in Schedule 4; and
(b)	it is endorsed with an acceptance in the form set out in Form 1 in Schedule 4 signed by the person appointed as the enduring guardian; and
(c)	the execution of the instrument is attested by two witnesses—

(i)  neither of whom is a party to the instrument nor a relative to a party to it; and

(ii)

neither of whom is the person guardian; and

(iii)  both of whom have witnessed the instrument in the presence of the appointor and each other; and

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s. 12	Act No. 40/1999
(iv) one of whom is authorised by law to witness the signing of a statutory declaration.

(3) A person is not eligible to be appointed as an

enduring guardian unless he or she is of or
over the age of 18 years.

(4) A person is not eligible to be appointed as an enduring guardian by another person if he or she is, in a professional or administrative

capacity, directly or indirectly responsible for, or involved in, the care or treatment of or provides accommodation to that other

person.

(5) If a person who is validly appointed as an

enduring guardian becomes ineligible to continue to be appointed as an enduring guardian by reason of any of the matters referred to in sub-section (4), the
appointment of that person as enduring

guardian lapses.

35B. Authority of enduring guardian

(1) An instrument appointing an enduring

guardian authorises the person appointed to exercise the powers of a guardian in relation to the matters specified in that instrument
relating to his or her personal circumstances if, and only to the extent that, the appointor subsequently becomes unable by reason of a
disability to make reasonable judgments in
respect of any of those matters.

(2) If an instrument appointing an enduring guardian does not specify the matters in relation to which the person appointed may

exercise the powers of a guardian, the
instrument authorises that person to exercise
the powers of a guardian under section 24 if,

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999 s. 12

and only to the extent that, the appointor
subsequently becomes unable by reason of a
disability to make reasonable judgments in
respect of any of the matters relating to his
or her personal circumstances.

(3) An instrument appointing an enduring

guardian confers on the guardian in respect
of the appointor all the powers and duties
which the guardian would have if he or she
were a parent and the appointor his or her
child to the extent that the instrument
authorises the guardian to exercise such
powers and duties.

(4) An enduring guardian cannot, on behalf of

the appointor, consent to any special
procedure.

(5) An enduring guardian must exercise his or her authority in accordance with section 28.

35C. Revocation of appointment by appointor

(1) If a person appoints an enduring guardian,

any earlier appointment of an enduring
guardian by that person is revoked.

(2) The appointor of an enduring guardian may,

by instrument in writing, revoke the
appointment.

(3) An instrument to revoke an appointment as enduring guardian is effective if—

(a)	it is in the form of, or to the effect of, Form 2 in Schedule 4; and
(b)	the execution of the instrument is attested by two witnesses—

(i)  neither of whom is a party to the instrument nor a relative to a party to it; and

Guardianship and Administration (Amendment) Act 1999

s. 12 Act No. 40/1999

(ii)

neither of whom is the person guardian; and

(iii)  both of whom have witnessed the instrument in the presence of the appointor and each other; and

(iv)  one of whom is authorised by law to witness the signing of a statutory declaration.

35D. Revocation of appointment by Tribunal

(1) The Tribunal may, on an application under
this section and after a hearing, revoke the

appointment of an enduring guardian if—

(a)	the enduring guardian seeks revocation of the appointment; or
(b)	the Tribunal is satisfied that the enduring guardian—

(i)  is not able or willing to act in that capacity; or

(ii)  has, in that capacity, not acted in the best interests of the appointor or has acted in an incompetent or negligent manner.

(2) An application may be made by—

(a) the Public Advocate; or

(b) the enduring guardian; or

(c)	the administrator of the appointor's estate; or
(d)	any other person who the Tribunal is satisfied has an interest in the person or in the estate of the person in respect of whom the application is made.

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999 s. 12

(3) An appointment of an enduring guardian is

not revoked if the appointor becomes a
represented person.

35E. Advice or direction of Tribunal

(1) An enduring guardian may apply to the

Tribunal for an advisory opinion or directions on any matter or question relating to the scope of his or her appointment as such or the exercise of any power by the guardian under the instrument of appointment.

(2) The Tribunal may—

(a)	give an advisory opinion or any directions it considers necessary;
(b)	vary the effect of the instrument appointing the enduring guardian;
(c)	suspend for a specified period the authority, either generally or in respect of a specific matter, of an enduring guardian under an instrument of appointment;

(d) make any order it considers necessary.
(3) The Tribunal of its own motion may direct,

or give an advisory opinion to, an enduring

guardian in respect of any matter.

(4) An action does not lie against an enduring

guardian on account of an act or thing done
or omitted to be done by the guardian in
accordance with any order, directions or
advisory opinion of the Tribunal made or
given under this section unless in

representing the facts to the Tribunal the
guardian has been guilty of fraud, wilful
concealment or misrepresentation.".

Guardianship and Administration (Amendment) Act 1999

s. 13 Act No. 40/1999

13. Division 6 of Part 4 repealed

Division 6 of Part 4 of the Principal Act is repealed.

14. New Part 4A inserted

After Part 4 of the Principal Act insert—

'PART 4A—MEDICAL AND OTHER

TREATMENT

Division 1—Preliminary

36. Persons to whom Part applies

(1) In this Part, "patient" means a person with a

disability which is a permanent or long term

disability and who—

(a) is of or over the age of 18 years; and

(b) is incapable of giving consent, within the meaning of sub-section (2), to the carrying out of a special procedure or medical or dental treatment, whether or

not the person is a represented person.

(2) For the purposes of paragraph (b) of the

definition of "patient" in sub-section (1), a person is incapable of giving consent to the carrying out of a special procedure or

medical or dental treatment if the person—

(a)

is incapable of understanding the proposed procedure or treatment; or

(b) is incapable of indicating whether or not he or she consents or does not consent to the carrying out of the proposed procedure or treatment.

37. Person responsible

Guardianship and Administration (Amendment) Act 1999
Act No. 40/1999

(1) In this Part, "person responsible", in

relation to a patient and in relation to
proposed medical or dental treatment, means
the first person listed below who is
responsible for the patient and who, in the
circumstances, is reasonably available and
willing and able to make a decision under
this Part—

(a)	a person appointed by the patient under section 5A of the Medical Treatment Act 1988;
(b)	a person appointed by the Tribunal to make decisions in relation to the proposed treatment;
(c)

a person appointed under a decisions in relation to the proposed treatment;

(d) (before the patient became incapable of
giving consent) as an enduring guardian

a person appointed by the patient relation to the proposed treatment;

(e) a person appointed in writing by the patient (being the person appointed last in time before the patient became incapable of giving consent) to make decisions in relation to medical or dental treatment which includes the proposed treatment;

(f) the patient's spouse;

(g) the patient's primary carer;

(h) the patient's nearest relative within the meaning of paragraphs (a) to (g) of the

Guardianship and Administration (Amendment) Act 1999

s. 14	Act No. 40/1999
definition of "nearest relative" in section 3.

(2) The circumstances in which a person is to be

regarded as having the care of a patient include, but are not limited to, the case where the person, otherwise than for
remuneration (whether from the patient or

any other source), regularly—

(a)	provides domestic services and support to the patient; or
(b)	arranges for the patient to be provided with domestic services and support.

(3) A patient who is cared for in an institution (such as a hospital, community residential unit, residential care service, supported

residential service or State funded residential she is cared for by some other person is not, by reason only of that fact, to be regarded as being in the care of that other person and remains in the care of the person in whose care he or she was immediately before being cared for in that institution.

care service within the meaning of the

(4) For the purposes of this section, a reference to the spouse of a patient—

(a)	is a reference to a spouse who is not under guardianship and with whom the patient has a close and continuing relationship; and
(b)	includes a reference to a person referred to in section 3(2)(b).

(5) If the person responsible for a patient is an

agent appointed under section 5A of the
Medical Treatment Act 1988, the powers

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Act No. 40/1999 s. 14

the person may exercise as an agent under
that Act are in addition to the powers the

person may exercise under this Act.

38.

Best interests whether any special procedure or any medical or dental treatment would be in the best interests of the patient, the following matters must be taken into account—

(a)	the wishes of the patient, so far as they can be ascertained; and
(b)	the wishes of any nearest relative or any other family members of the patient; and
(c)	the consequences to the patient if the treatment is not carried out; and

(d) any alternative treatment available; and

(e)	the nature and degree of any significant risks associated with the treatment or any alternative treatment; and
(f)	whether the treatment to be carried out is only to promote and maintain the health and well-being of the patient; and
(g)	any other matters prescribed by the regulations.

Division 2—Consent

39.  Persons who may consent to medical or other treatment

Guardianship and Administration (Amendment) Act 1999

s. 14 Act No. 40/1999

Consent to the carrying out of a special procedure or medical or dental treatment on a patient may be given—

(a)	in the case of a special procedure or any medical or dental treatment, by the Tribunal; or
(b)	in the case of any medical or dental treatment, by the person responsible for the patient.
40.

Effect of consent the carrying out of a special procedure or any medical or dental treatment on a patient has effect as if—

(a)	the patient had been capable of giving consent to the carrying out of the procedure or treatment; and
(b)	the procedure or treatment had been carried out with the consent of the patient.

41.  Refusal of medical treatment under the Medical Treatment Act 1988

A registered practitioner must not carry out any medical or dental treatment (including any emergency treatment) under this Part

that is medical treatment within the meaning
of the Medical Treatment Act 1988 if a
refusal of that treatment is in force in
accordance with that Act.

42.  Unlawful consent to medical or other treatment an offence

A person must not—

(a) purport to give consent to the continuation of a special procedure or a

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Act No. 40/1999	s. 14
further special procedure under section 42F or to any medical or dental treatment on behalf of a patient; or

(b) represent to a registered practitioner that he or she is authorised to give such consent—

knowing that he or she is not authorised to
give such consent or without reasonable
grounds for believing that he or she is
authorised to give such consent.

Penalty: 20 penalty units.

Division 3—Emergency Treatment

42A. Emergency medical or dental treatment

(1) A registered practitioner may carry out, or

supervise the carrying out of, a special
procedure or medical or dental treatment on
a patient without consent under this Part if
the practitioner believes on reasonable
grounds that the treatment is necessary, as a
matter of urgency—

(a) to save the patient's life; or

(b)	to prevent serious damage to the patient's health; or
(c)	in the case of medical or dental treatment, to prevent the patient from suffering or continuing to suffer significant pain or distress.

(2) A registered practitioner who, in good faith, carries out, or supervises the carrying out, of a special procedure or medical or dental

treatment in the belief on reasonable grounds
that the requirements of this Division have
been complied with is not—

Guardianship and Administration (Amendment) Act 1999

s. 14 Act No. 40/1999

(a) guilty of assault or battery; or

(b) guilty of professional misconduct; or

(c) liable in any civil proceedings for assault or battery.

(3) Nothing in this Division affects any duty of

care owed by a registered practitioner to a
patient.

Division 4—Special Procedures 42B. Application for consent of Tribunal to

special procedure

(1) An application for the consent of the

Tribunal to the carrying out of any special procedure on a patient may be made by—

(a)	the person responsible for the patient; or
(b)	any person who, in the opinion of the Tribunal, has a special interest in the affairs of the patient.

(2) If an application for consent is made under

this Division, the patient is a party to the
proceedings.

(3) The Tribunal must give notice of an

application, of the hearing of the application
and of any order, directions or advisory
opinion of the Tribunal in respect of the

application to—

(a) the Public Advocate; and

(b) any other person whom the Tribunal considers has a special interest in the affairs of the patient.

42C. Guidelines for special procedures

The Tribunal may—
Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999	s. 14
(a)

in consultation with the Public Department of Justice; and

(b) with the approval of the Governor in Council—

issue and make available to members of the
public guidelines specifying situations in
which applications may be made to the

Tribunal under this Division.

42D. Date for hearing

The Tribunal must commence to hear an application under this Division within 14 days after the day on which the application is

received by the Tribunal.

42E. Consent of Tribunal to special procedure

On hearing an application under this Division, the Tribunal may consent to the carrying out of a special procedure if it is satisfied that—

(a)	the patient is incapable of giving consent; and
(b)	the special procedure would be in the best interests of the patient.

42F. Tribunal may confer authority to consent to continuing or further special procedure

(1) If the Tribunal consents to the carrying out of a special procedure on a patient, the responsible for the patient authority to consent to—

(a) the continuation of the special procedure; or

Guardianship and Administration (Amendment) Act 1999

s. 14 Act No. 40/1999

(b) the carrying out of any further special procedure of a similar nature.

(2) The Tribunal may confer an authority under

this section only at the request, or with the
consent, of the person responsible.

(3) If a person on whom the Tribunal has

conferred authority under this section ceases to be the person responsible, the Tribunal, on the application of the new person
responsible, may confer authority under this

section on that person.

(4) The Tribunal may at any time—

(a) impose conditions or give directions as to the exercise of an authority under this section; or

(b) revoke that authority.

(5) If the Tribunal confers an authority under

this section, a person may request the
consent of the person responsible to the
carrying out of the special procedure.

42G. Special procedure without consent of Tribunal an offence

(1) Subject to section 42A, a registered

practitioner must not carry out, or supervise the carrying out of, any special procedure on a patient unless—

(a)	the Tribunal has consented to the carrying out of that procedure; or
(b)	the person responsible with authority to consent to the continuation of the procedure or a further special procedure

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999	s. 14
under section 42F has consented to the carrying out of that procedure.

(2) A registered practitioner who, in good faith, carries out, or supervises the carrying out of, a special procedure on a patient in the belief on reasonable grounds that the requirements of this Division have been complied with

and in reliance on—

(a) whom the registered practitioner

a consent given by another person authorised to give such consent; or

(b) person whom the registered practitioner

a purported consent given by another authorised to give such consent but was not so authorised—

is not—

(c) guilty of assault or battery; or

(d) guilty of professional misconduct; or

(e) liable in any civil proceedings for assault or battery.

(3) Nothing in this Division affects any duty of

care owed by a registered practitioner to a
patient.

Division 5—Other Medical or Dental

Treatment

42H. Consent of person responsible
Guardianship and Administration (Amendment) Act 1999
Act No. 40/1999

(1) The person responsible for a patient may

consent to the carrying out of any medical or
dental treatment.

(2) In determining whether or not to consent to

medical or dental treatment, the person
responsible must act in the best interests of
the patient.

42I. Person responsible may seek advice

(1) The person responsible for a patient may apply to the Tribunal for directions or an advisory opinion on any matter or question

relating to the scope or exercise of his or her
authority to consent to medical or dental
treatment on behalf of the patient.

(2) The Tribunal must give notice to any person

whom the Tribunal considers has a special
interest in the affairs of the patient of the
application, of the hearing of the application
and of any order, directions or advisory
opinion of the Tribunal in respect of the
application.

(3) The Tribunal may—

(a) give any directions or advisory opinion it considers necessary;

(b) make any order it considers necessary.
(4) The Tribunal of its own motion may direct,

or give an advisory opinion to, the person responsible for a patient in respect of any matter.

(5) An action does not lie against the person

responsible for a patient on account of an act
or thing done or omitted to be done by that
person in accordance with any order,
directions or advisory opinion of the
Tribunal made or given under this section

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999 s. 14

unless in representing the facts to the wilful concealment or misrepresentation.

42J. Guidelines for medical or dental treatment

The Tribunal may—

(a)

in consultation with the Public Department of Justice; and

(b) with the approval of the Governor in Council—

issue and make available to members of the
public guidelines specifying situations in
which the person responsible for a patient
may consent to medical or dental treatment

in respect of the patient.

42K. Medical or dental treatment without

consent of person responsible

(1) Subject to section 41, a registered

practitioner may carry out, or supervise the carrying out of, medical or dental treatment under this section without the consent of the person responsible if—

(a) the practitioner has made reasonable efforts—

(i)  to ascertain whether there is a person responsible and, if so, who that person is; and

(ii) the person responsible is, to

if the practitioner ascertains who her consent to the proposed treatment—

but the practitioner has been unable to
ascertain whether there is a person

Guardianship and Administration (Amendment) Act 1999

s. 14	Act No. 40/1999
responsible or who that person is or to contact that person; and

(b)	the practitioner believes on reasonable grounds that the proposed treatment is in the best interests of the patient; and
(c)	supervising the carrying out of, the medical or dental treatment, gives

the practitioner, before carrying out, or accordance with sub-section (2).

(2) A notice referred to under sub-section (1)(c)

must include the following information—
(a) the nature of the patient's condition;

(b)

the medical or dental treatment the carrying out on the patient; and

(c)	that the practitioner believes on reasonable grounds that the proposed treatment is in the best interests of the patient; and
(d)	that despite reasonable efforts by the practitioner, the practitioner has been unable to ascertain whether there is a person responsible for the patient or, if
there is a person responsible, the practitioner has been unable to ascertain who that person is or to contact that person.

(3) A registered practitioner who carries out, or

supervises the carrying out of, medical or
dental treatment on a patient under this
section must state in writing in the clinical
records relating to that patient—

(a) why the treatment is considered to be in the best interests of the patient; and

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999 s. 14

(b) how the treatment is considered to promote or maintain the health and well-being of the patient.

42L. Medical or dental treatment if person responsible does not consent

(1) Subject to section 41, a registered

practitioner may carry out, or supervise the carrying out of, medical or dental treatment under this section if—

(a)	the registered practitioner has consulted the person responsible for a patient; and
(b)	the person responsible does not consent to the proposed medical or dental treatment; and
(c)	on reasonable grounds that the

the practitioner nevertheless believes interests of the patient; and

(d) the practitioner, within 3 days after the person responsible has communicated to the practitioner that he or she does not consent, gives to that person and the Public Advocate a statement under

section 42M.

(2) A registered practitioner must not carry out, or supervise the carrying out of, any medical or dental treatment under this section (other than emergency treatment)—

(a) to the Tribunal within 7 days after
receiving a statement under section

if the person responsible does not apply the person responsible the statement; or

(b) if the person responsible applies to the Tribunal within 7 days after receiving a

Guardianship and Administration (Amendment) Act 1999

s. 14	Act No. 40/1999
statement under section 42M, earlier than 14 days after giving the person responsible the statement; or

(c)	if the Tribunal makes an order under section 42N that the treatment is not in the best interests of the patient; or
(d)	if the person responsible appeals from an order of the Tribunal made under section 42N, before the determination of the appeal.

(3) If the person responsible does not apply to

the Tribunal in accordance with sub-section
(2)(a) and a registered practitioner carries
out, or supervises the carrying out of,
medical or dental treatment on a patient
under this section, the practitioner must state
in writing in the clinical records relating to
that patient—

(a)	why the treatment is considered to be in the best interests of the patient; and
(b)	how the treatment is considered to promote or maintain the health and well-being of the patient.

42M. Statement by registered practitioner

(1) A statement referred to in section 42L must be in writing and must be dated and signed by the registered practitioner.

(2) A statement must state that—

(a) the person responsible for the patient has been informed about the nature of the patient's condition to an extent that would be sufficient to enable the

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999	s. 14
patient, if he or she were able to consent, to decide whether or not to consent to the proposed treatment generally or to treatment of a particular kind for that condition; and

(b)

the person responsible has not and

(c)	the registered practitioner believes on reasonable grounds that the proposed treatment is in the best interests of the patient; and
(d)	unless the person responsible applies to the Tribunal and the Tribunal otherwise orders, the practitioner will, not earlier
than 7 days after giving the statement to the person responsible, carry out the proposed treatment.

(3) A statement must set out the procedures

under the Victorian Civil and
Administrative Tribunal Act 1998 for
making an application to the Tribunal.

42N. Application to Tribunal relating to medical or dental treatment

(1) An application may be made to the Tribunal in relation to any matter, question or dispute under this Part relating to medical or dental treatment or relating to the best interests of a

patient.

(2) An application may be made by—

(a) a person responsible; or

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999

(b) a person who, in the opinion of the Tribunal, has a special interest in the affairs of the patient, including a registered practitioner (if any).

(3) If an application is made under this section, the patient is a party to the proceeding.

(4) The Tribunal must give notice of an

application, of the hearing of the application and of any order of the Tribunal in respect of the application to—

(a) the Public Advocate; and

(b) if the application is made after a statement has been given under section 42M, the registered practitioner

who gave the statement; and

(c) any other person whom the Tribunal considers has a special interest in the affairs of the patient.

(5) If the person responsible for a patient, after

receiving a statement under section 42M,
makes an application to the Tribunal—

(a)	the person responsible must apply to the Tribunal within 7 days after receiving the statement; and
(b)	the Tribunal must hear and determine the application within 7 days after receiving it.

(6) On an application under this section, the

Tribunal—

(a) may make an order that for matters relating to medical or dental treatment, either generally or of a particular kind, a person specified in the order is to be the person responsible;

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999 s. 14

(b) may appoint a person as guardian of the patient generally or for matters relating to the medical or dental treatment of a

patient;

(c)	may vary a guardianship order to make provision for matters relating to the medical or dental treatment of a patient;
(d)	may revoke, suspend or vary an instrument appointing a person as the enduring guardian to the extent that the instrument relates to medical or dental treatment of a patient;
(e)	may make an order that any proposed medical or dental treatment is or is not in the best interests of the patient;
(f)	directions it considers necessary to

may make any orders or give any relating to the best interests of a patient;

(g)	may make a declaration as to the validity or effect of any decision relating to medical or dental treatment;
(h)	may give an advisory opinion in relation to the best interests of a patient;

(i)  may make any other orders it considers to be in the best interests of the patient.

42O. Protection of registered practitioner

(1) A registered practitioner who, in good faith, carries out, or supervises the carrying out of, medical or dental treatment on a patient in

accordance with this Division in reliance
on—

Guardianship and Administration (Amendment) Act 1999

s. 15 Act No. 40/1999

(a) whom the registered practitioner

a consent given by another person authorised to give such consent; or

(b) person whom the registered practitioner

a purported consent given by another authorised to give such consent but was not so authorised—

is not—

(c) guilty of assault or battery; or

(d) guilty of professional misconduct; or

(e) liable in any civil proceedings for assault or battery.

(2) A registered practitioner who, in good faith, carries out, or supervises the carrying out of, medical or dental treatment on a patient in

accordance with this Division without the consent of another person and in the belief on reasonable grounds that the requirements
of this Division have been complied with is

not—

(a) guilty of assault or battery; or

(b) guilty of professional misconduct; or

(c) liable in any civil proceedings for assault or battery.

(3) Nothing in this section affects any duty of care owed by a registered practitioner to a patient.'.

15. Persons eligible as administrator

(1) In section 47(1) of the Principal Act—

(a) paragraphs (a) and (b) are repealed;

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999 s. 16

(b) in paragraph (c), omit "other".

(2) In section 47(2) of the Principal Act, after paragraph (b) insert—

"; and

(c) whether the person was a member of the Tribunal as constituted for a proceeding under this Act.".

(3) After section 47(2) of the Principal Act insert—

"(2A) The Tribunal may appoint a person who was

at any time a member of the Tribunal as
constituted for a proceeding under this Act
only if the Tribunal considers that in the
circumstances it is appropriate for the person
to act as an administrator.".

(4) In section 47(4) of the Principal Act—

(a)	for "the State Trust" (wherever occurring) substitute "State Trustees";
(b)	in paragraph (b), for "that" (where secondly occurring) substitute "than".

(5) Section 47(5) of the Principal Act is repealed.

16. New section 47A inserted

After section 47 of the Principal Act insert—

"47A. Remuneration of professional

administrator

(1) An administrator other than an administrator

who carries on a business of, or including,
the administration of estates is not entitled to
receive any fee, remuneration or other
reward from the estate of a represented
person for acting as administrator unless the

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999

Tribunal otherwise specifies in the
administration order.

(2) The remuneration to which an administrator

who carries on a business of, or including,
the administration of estates is entitled is to
be approved by the Tribunal.".

17. Accounts

(1) For section 58(1) and (2) of the Principal Act

substitute—

"(1) The Tribunal may, at the time that it appoints

an administrator under section 46 or such
later time as the Tribunal determines,
appoint a person to examine or audit the
accounts of the estate of a represented person
for a fee approved by the Tribunal and paid
from that estate.

(2) Unless the Tribunal otherwise directs, an administrator must lodge—

(a) if the Tribunal has appointed a person under sub-section (1) to examine or audit accounts, with that person; or

(b) in any other case, with the Tribunal—

on, or as soon as practicable after, the anniversary of the appointment of the administrator in each year, accounts of the

administration of the estate of a represented
person providing a full and true account of
the assets and liabilities of that estate and all
receipts and disbursements in respect of that
estate.

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999 s. 18

(2A) The Tribunal may require an administrator to

lodge accounts at a time other than a time
specified in sub-section (2).

(2B) A person appointed under sub-section (1) to

examine or audit accounts must lodge with
the Tribunal a report in relation to the
accounts examined or audited.

(2C) A report under sub-section (2B) may

recommend the disallowance of any item in

the accounts.".

(2) In section 58(3) of the Principal Act, for "(2)"

substitute "(2C)".

(3) In section 58(4) of the Principal Act, omit "and

for the costs incurred by the State Trust in
connection with the State Trust's report to the

Tribunal".

(4) For section 58(5) of the Principal Act

substitute—

"(5) An administrator must, in respect of each

estate administered by the administrator, pay
to a person appointed under sub-section (1)
to examine or audit accounts an amount
certified by that person as being the
reasonable cost of examining or auditing the

accounts.".

(5) In section 58(6) of the Principal Act, for "the State

Trust" substitute "the person appointed under sub-section (1) to examine or audit accounts".

18. Temporary orders—administrators

(1) In section 59(1) of the Principal Act, for "the State

Trust as the administrator" substitute "an administrator".

(2) In section 60(1) of the Principal Act—
Guardianship and Administration (Amendment) Act 1999

s. 20 Act No. 40/1999

(a)	in paragraph (b), for "the State Trust" substitute "State Trustees";
(b)	for "appointing the State Trust" substitute "appointing any person who may be appointed under section 47(1)".

(3) For section 60(2) of the Principal Act

substitute—

"(2) A temporary order—

(a)	remains in effect for such period not exceeding 21 days as is specified in the order; and
(b)	may be renewed once for a further period not exceeding 21 days.".

(4) In section 60(3) of the Principal Act, for "before the expiry of the temporary order" substitute "as soon as practicable after the making of a

temporary order but within 42 days of making that

order".

19. Reviews of orders

In section 61(2) of the Principal Act, for "a guardianship order or an administration order" substitute "any order made by it under this Act".

20. New Part 6A inserted

After section 63 of the Principal Act insert—

'PART 6A—INTERSTATE ORDERS

63A. Application of Part

This Part applies to a guardianship order or an administration order made under a

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999

corresponding law of a participating State in

respect of a person who—

(a) resides in the participating State and proposes entering Victoria; or

(b) has property situated in Victoria.

63B. Definitions

In this Part—

"corresponding law" means a law that,

under an Order in force under
section 63C, is declared to be a
corresponding law for the purposes of
this Part;

"determining body", in relation to a

participating State, means a court,
tribunal, board or other body that is
authorised under a corresponding law
to make, revoke, amend or vary a
guardianship order or an administration
order;

"interstate order" means an order made

under a corresponding law of a
participating State;

"participating State" means a State in which a corresponding law is in force;

"State" includes Territory.

63C. Corresponding laws and orders
(1) The Governor in Council on the

recommendation of the Minister, by Order published in the Government Gazette, may declare that a law of another State is a

corresponding law for the purposes of this
Part.

Guardianship and Administration (Amendment) Act 1999

s. 20 Act No. 40/1999

(2) An Order under sub-section (1) in respect of

a law of another State may include a
declaration that an order under that law is
substantially similar to a guardianship order
or an administration order for the purposes
of this Part.

63D. Ministerial agreements

The Minister may make an agreement with a
Minister responsible for administering a
corresponding law about any matter in
connection with the administration of this

Part or a corresponding law.

63E. Registration of interstate orders

(1) The Tribunal, on the application of a

guardian or administrator of a represented
person in a participating State, may register
an interstate order.

(2) If the guardian in a participating State is a person who holds an equivalent position to the Public Advocate, the Tribunal may

appoint the Public Advocate as the guardian
of the represented person in this State if no
other person fulfils the requirements of
section 23 for appointment as the guardian of

that person.

(3) On registration of an interstate order, the

Tribunal must notify the determining body which made the order that the order has been registered.

(4) An interstate order registered under this Part has the same force and effect according to its terms as a guardianship order or an

administration order made under this Act.

(5) A guardianship order or an administration

order made under this Act is not revoked in

Guardianship and Administration (Amendment) Act 1999

s.
s. 21

Act No. 40/1999

Victoria if that order is registered in a participating State.

63F. Review of interstate orders

(1) A registered interstate order may be

reviewed by the Tribunal in accordance with
Part 6.

(2) The Tribunal may make any order that it is

authorised to make under Part 6 in relation to
an interstate order that has been registered
under this Part, including an order
appointing a new guardian or administrator.

(3) The Tribunal must notify the determining

body which made the interstate order as soon
as practicable after the Tribunal makes an
order under sub-section (2).

(4) An order made by the Tribunal under sub-

section (2) has no effect in the participating
State in which the interstate order was made.

(5) The revocation, amendment or variation of an interstate order by a determining body after the order is registered under this Part has no effect in Victoria.

63G. Reciprocal arrangements under the State Trustees (State Owned Company) Act 1994

Nothing in this Part affects the operation of
section 12 of the State Trustees (State

Owned Company) Act 1994.'.

21. New section 81A inserted

After section 81 of the Principal Act insert—

"81A. Supreme Court—Limitation of jurisdiction

It is the intention of sections 35E(4) and
42I(5) to alter or vary section 85 of the
Constitution Act 1975.".

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999

22. Regulations

In section 82(1) of the Principal Act, after
paragraph (c) insert—
"(ca) prescribing any treatment—

(i)  to be medical or dental treatment for the purposes of this Act; or

(ii)  not to be medical or dental treatment for the purposes of this Act; or

(iii)  to be a special procedure for the purposes of Part 4A; and

(cb) prescribing any matters to be taken into

account in determining whether a special procedure or medical or dental treatment would be in the best interests of a person to

whom Part 4A applies; and".

23. New Part 9 inserted

After Part 8 of the Principal Act insert—

"PART 9—TRANSITIONAL PROVISION

86.  Enduring powers of attorney under the Instruments Act 1958

(1) An enduring power of attorney under the

Instruments Act 1958 executed before the commencement of section 12 of the Guardianship and Administration (Amendment) Act 1999 has effect on and after that commencement as if this Act had not been amended by that section.

(2) If, after the commencement of section 12 of

the Guardianship and Administration
(Amendment) Act 1999, there is a conflict
between a decision made by a person
appointed under an enduring power of

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999 s. 24

attorney under the Instruments Act 1958
(whether executed before or after that
commencement) and a decision made by a
person appointed as an enduring guardian,

the decision of the latter prevails.".

24. Statute law revision

In the Principal Act—

(a) in sections 46(1)(b), 51, 55(2) and 66, for "the State Trust" (wherever occurring) substitute "State Trustees";

(b) section 58A(4) is repealed.

25. New Schedule inserted

After Schedule 3 to the Principal Act insert—

"SCHEDULE 4

INSTRUMENTS RELATING TO ENDURING GUARDIAN

FORM 1

APPOINTMENT OF ENDURING GUARDIAN

1.  I (insert name, address and occupation of appointor), appoint (insert name, address and occupation of proposed guardian) to be my guardian.

2. I authorise my guardian if, and only to the extent that, I subsequently become unable by reason of a permanent or long term disability to make reasonable judgments in respect of any matters relating to my personal circumstances, to exercise the powers of a guardian under section 24 of the Guardianship and Administration Act 1986, being all the powers that a parent may exercise in respect of his or her child, including—

• to decide where I am to live, whether permanently or temporarily;

• to decide with whom I am to live;

• to decide whether I should or should not be permitted to work and, if so—

• the nature or type of work; and

Guardianship and Administration (Amendment) Act 1999

s. 25 Act No. 40/1999

• for whom I am to work; and

• matters related thereto; and

• to consent to any health care that is in my best interests;

• to restrict visitors to such extent as may be necessary in my best interests and to prohibit visits by any person if my guardian reasonably believes that visits by that person would have an adverse effect on me.

(Delete any powers you do not wish your guardian to exercise. If you do
not delete any powers, you will be deemed to have authorised your
guardian to exercise the full powers of a guardian under section 24 of the
Guardianship and Administration Act 1986.)
but subject to the following limitations:
(List any limitations you wish to place on your guardian's powers)

3.   I require my guardian to take into account the following wishes in exercising, or in relation to the exercise of, the powers conferred by this appointment—

(State wishes to be taken into account)

This is an appointment of an enduring guardian made under Division 5A of

Part 4 of the Guardianship and Administration Act 1986.

...............................................................................

(Signature of appointor)

Note: An enduring guardian will be able to make decisions on your behalf on
all health care and lifestyle matters you empower your enduring guardian to
make. If you give your enduring guardian power to make decisions about
your health care, your enduring guardian will be able to consent or withhold
consent to medical or dental treatment on your behalf.

If your enduring guardian withholds consent to proposed medical or dental treatment, a practitioner may only provide the treatment if the practitioner believes on reasonable grounds that it is in your best interests to do so and if

the practitioner gives your enduring guardian the opportunity to refer the
matter to the Victorian Civil and Administrative Tribunal (the Tribunal) for

determination.

If you wish to appoint a person who can, unless the Tribunal otherwise
determines, refuse medical treatment on your behalf, you will need to appoint

a person as your agent under the Medical Treatment Act 1988.

If you are considering appointing an agent under the Medical Treatment
Act 1988—

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999 s. 25

• you should ensure that you understand the rights and powers which an appointment under the Medical Treatment Act 1988 confers on your agent; and

• you may wish to appoint the same person as your agent under the Medical Treatment Act 1988 as the person you appoint as your enduring guardian, although you may choose a different person for

each role; and

If you appoint or have already appointed a person as your agent under the
Medical Treatment Act 1988 and another person as your enduring

guardian—

• the decision of your agent under the Medical Treatment Act 1988 will have priority over the decision of your enduring guardian in relation to any proposed medical treatment; and

• your agent under the Medical Treatment Act 1988 will be able to refuse to consent to medical treatment on your behalf in all circumstances regardless of any consent to the treatment that your enduring guardian may give or wish to give.

ACCEPTANCE OF APPOINTMENT

I, (insert name, address and occupation of proposed guardian) accept appointment as a guardian under this instrument and undertake to exercise the powers conferred honestly and in accordance with the provisions of the Guardianship and Administration Act 1986.

...............................................................................

(Signature of proposed guardian)

CERTIFICATE OF WITNESSES

We (insert names, addresses and occupations of at least 2 witnesses) certify—

(a)	that both the appointor and the proposed guardian have signed this instrument freely and voluntarily in our presence; and
(b)	that both the appointor and the proposed guardian appeared to understand the effect of this instrument.

Guardianship and Administration (Amendment) Act 1999

s. 25 Act No. 40/1999

. ..............................................................................
(Signature of witness authorised to witness the

signing of statutory declarations)

...............................................................................

(Signature of other witness)

_______________
Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999 s. 25

FORM 2

REVOCATION OF APPOINTMENT OF ENDURING
GUARDIAN

1.  I (insert name, address and occupation of appointor), revoke the appointment of (insert name, address and occupation of proposed guardian) as my guardian.

2. This revocation of appointment as an enduring guardian is made under Division 5A of Part 4 of the Guardianship and Administration Act 1986.

...............................................................................

(Signature of appointor)

CERTIFICATE OF WITNESSES

We (insert names, addresses and occupations of at least 2 witnesses) certify—

(a)	that the appointor has signed this instrument freely and voluntarily in our presence; and
(b)	that the appointor appeared to understand the effect of this instrument.

. ..............................................................................
(Signature of witness authorised to witness the

signing of statutory declarations)

...............................................................................

(Signature of other witness)".

_______________
Guardianship and Administration (Amendment) Act 1999

s. 26 Act No. 40/1999

PART 3—CONSEQUENTIAL AMENDMENTS

No. 59/1986.	26. Mental Health Act 1986
Reprint No. 5 as at 11 July 1998.	(1) For section 8(4) of the Mental Health Act 1986

substitute—

"(4) Despite anything in the Guardianship and

Administration Act 1986, the Medical
Treatment Act 1988 or any other law, in
considering, for the purposes of sub-section

(1), whether a person—

(a)	in respect of whom a guardian has been appointed under the Guardianship and Administration Act 1986 or in respect of whom a person responsible within
the meaning of section 37 of that Act may make decisions relating to treatment; or
(b)	in respect of whom an agent has been appointed under the Medical Treatment Act 1988—

has refused or is unable to consent to
treatment, that person's personal refusal or
consent only is relevant and not the refusal
or consent of that person's guardian, the
person responsible, the agent or the
Tribunal.".

(2) For section 14(1B) of the Mental Health Act 1986 substitute—

"(1B) Despite anything in the Guardianship and

Administration Act 1986, the Medical
Treatment Act 1988 or any other law, in
considering, for the purposes of sub-section
(1A), whether a person—

Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999

(a)	in respect of whom a guardian has been appointed under the Guardianship and Administration Act 1986 or in respect of whom a person responsible within
the meaning of section 37 of that Act may make decisions relating to treatment; or
(b)	in respect of whom an agent has been appointed under the Medical Treatment Act 1988—

has refused or is unable to consent to
treatment, that person's personal refusal or
consent only is relevant and not the refusal
or consent of that person's guardian, the
person responsible, the agent or the
Tribunal.".

(3) For section 86(1) of the Mental Health Act 1986

substitute—
'(1) In this section—

"special procedure" means any procedure

procedure" in section 3 of the
Guardianship and Administration

specified in the definition of "special regulations made under that Act to be a special procedure for the purposes of that Act.'.

(4) In section 86(2) of the Mental Health Act 1986, for "major medical" substitute "special".

(5) In section 86(3) of the Mental Health Act

1986—

(a) for "major medical" substitute "special";
(b) for paragraph (b) substitute—

Guardianship and Administration (Amendment) Act 1999

s. 26 Act No. 40/1999

"(b) if the patient is a person to whom Part 4A of the Guardianship and Administration Act 1986 applies, the

consent of the Tribunal as required by

that Part of that Act is obtained.".

═══════════════
Guardianship and Administration (Amendment) Act 1999

Act No. 40/1999 Notes

NOTES

†

Minister's second reading speech—

Legislative Assembly: 22 April 1999

Legislative Council: 25 May 1999

The long title for the Bill for this Act was "to amend the Guardianship
and Administration Act 1986 and the Mental Health Act 1986 and for

other purposes."

Constitution Act 1975:

Section 85(5) statement:

Legislative Assembly: 22 April 1999

Legislative Council: 25 May 1999

Absolute majorities:

Legislative Assembly: 13 May 1999

Legislative Council: 27 May 1999