Guardianship Act 1987 (NSW)

Guardianship Act 1987 No 257 An Act with respect to the guardianship of persons who have disabilities; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Guardianship Act 1987. 2 Commencement This Act shall commence on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— authorised officer, in relation to any provision of this Act, means— (a) an employee who is declared to be an authorised officer for the purposes of that provision, or (b) an employee who belongs to a class of employees who are declared to be authorised officers for the purposes of that provision, by an order in force under subsection (3). child means a person who is under the age of 18 years. Department means the Department of Family and Community Services. employee means a Public Service employee who is employed to enable the Tribunal to exercise its functions in the Guardianship Division of the Tribunal. enduring guardian means a person appointed as an enduring guardian under Part 2. estate of a person means the property and affairs of the person. exempt premises means— (a) the premises of— (i) a government school or non-government school within the meaning of the Education Act 1990, (ii) a private health facility licensed under the Private Health Facilities Act 2007 or a nursing home within the meaning of the Public Health Act 2010, (iii) a mental health facility within the meaning of the Mental Health Act 2007, (iv) a statutory health corporation or affiliated health organisation under the Health Services Act 1997, or (v) a public hospital or health service under the control of a local health district constituted under the Health Services Act 1997, (b) any premises belonging to a class of premises prescribed by the regulations, or (c) in relation to any provision of this Act, any premises declared to be exempt premises for the purposes of that provision by an order in force under subsection (4). guardian means a person who is, whether under this Act or any other Act or law, a guardian of the person of some other person (other than a child who is under the age of 16 years), and includes an enduring guardian. guardianship order means an order referred to in section 14. NSW Trustee means the NSW Trustee and Guardian constituted under the NSW Trustee and Guardian Act 2009. person in need of a guardian means a person who, because of a disability, is totally or partially incapable of managing his or her person. person under guardianship means a person who has a guardian within the meaning of this Act. premises includes any land, building, vehicle or vessel. proprietor, in relation to premises, means— (a) if the premises are not leased—the owner, or (if there is more than one owner) any of the owners, of the premises, or (b) if the premises are leased—the lessee, or (if there is more than one lessee) any of the lessees, who is entitled to immediate possession of the premises. Public Guardian means the Public Guardian referred to in section 77. Secretary means the Secretary of the Department. spouse means— (a) the person to whom a person is legally married (including the husband or wife of a person), or (b) a de facto partner, but where more than one person would so qualify as a spouse, means only the last person so to qualify. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. Tribunal means the Civil and Administrative Tribunal. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) In this Act, a reference to a person who has a disability is a reference to a person— (a) who is intellectually, physically, psychologically or sensorily disabled, (b) who is of advanced age, (c) who is a mentally ill person within the meaning of the Mental Health Act 2007, or (d) who is otherwise disabled, and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation. (3) For the purposes of the definition of authorised officer in subsection (1), the Minister may, by order published in the Gazette— (a) declare any employee to be an authorised officer, or (b) declare any class of employees to be authorised officers, for the purposes of any provision of this Act. (4) For the purposes of paragraph (c) of the definition of exempt premises in subsection (1), the Minister may, by order published in the Gazette, declare any premises to be exempt premises for the purposes of any provision of this Act. (5) (Repealed) (6) In this Act— (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. 3A (Repealed) 3B Notes Notes included in this Act are explanatory notes and do not form part of this Act. 3C Relationship with Mental Health Act 2007 (1) A guardianship order may be made in respect of a patient within the meaning of the Mental Health Act 2007. (2) The fact that a person under guardianship becomes a patient within the meaning of the Mental Health Act 2007 does not operate to suspend or revoke the guardianship. (3) However— (a) a guardianship order made, or (b) an instrument appointing an enduring guardian, in respect of a person who is, or becomes, a patient within the meaning of the Mental Health Act 2007 is effective only to the extent that the terms of the order or instrument are consistent with any determination or order made under the Mental Health Act 2007 in respect of the patient. 3D Circumstances in which a person "has the care of another person" (1) For the purposes of this Act, the circumstances in which a person is to be regarded as having the care of another person include (but are not limited to) the case where the person, otherwise than for remuneration (whether from the other person or any other source), on a regular basis— (a) provides domestic services and support to the other person, or (b) arranges for the other person to be provided with such services and support. (2) A person who resides in an institution (such as a hospital, nursing home, group home, boarding-house or hostel) at which he or she is cared for by some other person is not, merely because 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 residing in the institution. (3) In this section, remuneration does not include a carer's pension. 3E Meaning of "close friend or relative" (1) A person is a close friend or relative of another person for the purposes of this Act if the person maintains both a close personal relationship with the other person through frequent personal contact and a personal interest in the other person's welfare. However, a person is not to be regarded as a close friend or relative if the person is receiving remuneration (whether from the other person or some other source) for, or has a financial interest in, any services that he or she performs for the other person in relation to the person's care. (2) The Division Head of the Guardianship Division of the Tribunal may issue guidelines, not inconsistent with subsection (1), specifying the circumstances in which a person is to be regarded as a close friend or relative of another person. (3) In this section, remuneration does not include a carer's pension. 3F Persons who are "parties" to proceedings under this Act (1) A person is a party to proceedings before the Tribunal under this Act as provided by this section. (2) Each of the following persons is a party to any proceedings before the Tribunal in respect of an application for a guardianship order under this Act— (a) the applicant, (b) the person to whom the application relates, (c) the spouse, if any, of the person to whom the application relates, if the relationship between the person and the spouse is close and continuing, (d) the person, if any, who has care of the person to whom the application relates, (d1) the enduring guardian, if any, of the person to whom the application relates, (e) the Public Guardian, (f) any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013. (3) Each of the following persons is a party to proceedings consisting of a review by the Tribunal of a guardianship order made under this Act— (a) the person, if any, who requested the review, (b) the person the subject of the order, (c) the spouse, if any, of the person the subject of the order, if the relationship between the person and the spouse is close and continuing, (d) the person who has care of the person the subject of the order, (d1) the enduring guardian, if any, of the person the subject of the order, (e) the guardian appointed under the order, (e1) the Public Guardian, (f) any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013. (4) Each of the following persons is a party to proceedings consisting of a review by the Tribunal of an appointment (or purported appointment) of an enduring guardian under this Act— (a) the person, if any, who requested the review, (b) the person appointed as the enduring guardian, (c) the person who appointed the enduring guardian, (d) the spouse, if any, of the person who appointed the enduring guardian, if the relationship between the person and the spouse is close and continuing, (e) the person, if any, who has care of the person who appointed the enduring guardian, (e1) the Public Guardian, (e2) the NSW Trustee, (f) any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013. (5) Each of the following persons is a party to any proceedings before the Tribunal in respect of an application for a financial management order under this Act— (a) the applicant, (b) the person to whom the application relates, (c) the spouse, if any, of the person to whom the application relates, if the relationship between the person and the spouse is close and continuing, (d) the person, if any, who has care of the person to whom the application relates, (e) the person, if any, appointed attorney by the person to whom the application relates under a power of attorney that is in force, (f) the NSW Trustee, (g) any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013. (6) Each of the persons specified in subsection (7) is a party to proceedings consisting of a review by the Tribunal of— (a) a financial management order made under this Act, or (b) the appointment under this Act of a manager of an estate. (7) For the purposes of subsection (6), the persons are— (a) the person, if any, who requested the review, (b) the protected person to whom the relevant financial management order relates, (c) the spouse, if any, of the protected person, if the relationship between the person and the spouse is close and continuing, (d) the person, if any, who has care of the protected person, (d1) the person, if any, appointed attorney by the person to whom the relevant financial management order relates under a power of attorney (whether in force or suspended), (e) the person appointed as the manager of the estate concerned, (f) the NSW Trustee, (g) any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013. (8) In this section, financial management order and protected person have the same meanings as in Part 3A. 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles— (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles. Part 2 Appointment of enduring guardians 5 Definitions In this Part— appointee means a person appointed as an enduring guardian under this Part. appointor means a person who has appointed an enduring guardian under this Part. eligible signer, in relation to a notice or other instrument, means a person who— (a) is at least 18 years of age, and (b) is not a witness to the notice or other instrument, and (c) in the case of an instrument appointing an enduring guardian or revoking an appointment—is not an appointee or substitute enduring guardian. eligible witness means a person who— (a) is any of the following— (i) an Australian legal practitioner, (ii) (Repealed) (iii) a registrar of the Local Court, (iv) a person (or a person belonging to a class of persons) prescribed by the regulations for the purposes of this subparagraph, and (b) in the case of an instrument appointing an enduring guardian or revoking an appointment—is not an appointee or substitute enduring guardian. 6 Adult person may appoint guardian A person of or above the age of 18 years may, by instrument in writing, appoint a person as his or her guardian. 6A When appointment has effect (1) An appointment under this Part— (a) has effect only during such period of time as the appointor is a person in need of a guardian, and (b) unless revoked or suspended under this Part, has effect during all such periods. (2) A person appointed under this Part is appointed as an enduring guardian. 6B Eligibility for appointment (1) A person is not eligible to be appointed as an enduring guardian unless he or she is of or above the age of 18 years. (2) A person is not eligible to be appointed as an enduring guardian if— (a) the person is, in a professional or administrative capacity, directly or indirectly responsible for, or involved in, the provision of any of the following services for fee or reward to the person making the appointment— (i) medical services (whether provided in a hospital, at home or otherwise), (ii) accommodation, (iii) any other services to support the person making the appointment in his or her activities of daily living, or (b) the person is the spouse, parent, child, brother or sister of a person of the kind referred to in paragraph (a). (3) However, if a person who is validly appointed as an enduring guardian becomes responsible for or involved in the provision for fee or reward of a service to the appointor of the kind referred to in subsection (2) (a), the appointment does not lapse. 6C Method of appointment (1) An instrument does not operate to appoint a person as an enduring guardian unless— (a) it is in or to the effect of the form prescribed by the regulations, and (b) it is signed— (i) by the appointor, or (ii) if the appointor instructs—by an eligible signer who signs for the appointor in the appointor's presence, and (c) it is endorsed with the appointee's acceptance of the appointment, and (d) the execution of the instrument by the appointor and appointee is witnessed by one or more eligible witnesses, and (e) each witness certifies that the person or persons whose execution of the instrument is witnessed executed the instrument voluntarily in the presence of the witness and appeared to understand the effect of the instrument, and (f) if the instrument is signed for the appointor by an eligible signer—the person who witnesses the signature certifies that the appointor, in the witness's presence, instructed the signer to sign the instrument for the appointor. (2) Without limiting subsection (1) (b) (i), an instrument is signed by the appointor if the appointor affixes his or her mark to the instrument. (3) If an eligible signer signs an instrument on behalf of an appointor as provided by subsection (1) (b) (ii), the appointor is taken to have signed the instrument for the purposes of this Act (including subsection (1) (e)). (4) For the purposes of subsection (1) (d)— (a) the execution of the instrument by or for the appointor and by the appointee may be witnessed by the same person or by different persons, and (b) the execution of the instrument by or for the appointor does not need to be witnessed at the same time and place as the execution of the instrument by the appointee. 6D Appointment of 2 or more enduring guardians (1) An instrument appointing an enduring guardian may appoint 2 or more such guardians to act jointly, severally or jointly and severally. (2) If an instrument appoints 2 or more enduring guardians to act both jointly and severally— (a) the appointees are authorised to act jointly or severally at their discretion in relation to the appointor except as otherwise provided by the instrument of appointment, and (b) a vacation in the office of one enduring guardian does not terminate the appointment of any other enduring guardian unless the instrument of appointment provides otherwise. (3) Without limiting subsection (1), an instrument appointing more than one enduring guardian may confer different functions on each appointee. In any such case— (a) each appointee is taken to have been appointed to act severally, and (b) a reference in this Act to the enduring guardian is a reference to whichever of the appointees has the relevant function. (4) An instrument appointing 2 or more enduring guardians to act jointly may provide that the death, resignation or incapacity of one or more appointees does not operate to terminate the appointment of any other appointee. (5) For the purposes of this Act, an instrument that makes provision of the kind referred to in subsection (4) is taken to have appointed an appointee to act severally if each other appointee has died, resigned or become incapacitated. (6) A person who was appointed by an instrument executed by an appointor as a joint enduring guardian where that instrument does not make provision of the kind referred to in subsection (4) may apply to the Tribunal for an order confirming his or her appointment as an enduring guardian if each other appointee has died, resigned or become incapacitated. (7) The Tribunal may confirm the appointment of a person as an enduring guardian under subsection (6) only if the Tribunal is satisfied that the appointor did not intend the appointment to terminate if one or more of the other joint enduring guardians died, resigned or became incapacitated. (8) If the Tribunal confirms the appointment of a person as an enduring guardian under subsection (6), the instrument appointing the person is taken to have appointed the person to act severally if each other appointee has died, resigned or become incapacitated. 6DA Substitute enduring guardians (1) An instrument of appointment of an enduring guardian (the original enduring guardian) may appoint another person to be a substitute enduring guardian of the appointor. (2) The instrument of appointment does not operate to appoint a person as a substitute enduring guardian unless it is endorsed with the person's acceptance of the appointment. (3) A substitute enduring guardian has (and may exercise) the functions of an original enduring guardian only— (a) if the original enduring guardian dies, or (b) if the original enduring guardian resigns, or (c) during any incapacity of the original enduring guardian. (4) If 2 or more original enduring guardians are appointed by the instrument of appointment, the substitute enduring guardian— (a) is taken to have been appointed as a substitute enduring guardian for each of the original enduring guardians unless the instrument of appointment provides otherwise, and (b) if the original enduring guardians were appointed jointly and all of them have died, resigned or become incapacitated—section 6D operates in relation to that substitute enduring guardian as if he or she had been appointed as an original enduring guardian by the instrument of appointment and was the only remaining original enduring guardian. (5) A reference in a provision of this Act (other than this section) to an enduring guardian is to be read as a reference to the substitute enduring guardian while that person has, and may exercise, the functions of an original enduring guardian. 6E Functions of enduring guardians (1) Subject to subsection (2), an instrument appointing a person as an enduring guardian authorises the appointee, while the appointment has effect, to exercise the following functions— (a) deciding the place (such as a specific nursing home, or the appointor's own home) in which the appointor is to live, (b) deciding the health care that the appointor is to receive, (c) deciding the other kinds of personal services that the appointor is to receive, (d) giving consent under Part 5 to the carrying out of medical or dental treatment on the appointor, (e) any other function relating to the appointor's person that is specified in the instrument. (2) The instrument of appointment may limit or exclude the authority it confers in relation to any one or more of the functions specified in subsection (1). (2A) For the purpose of exercising a function that an appointee is authorised to exercise by an instrument appointing the appointee as an enduring guardian, the appointee has the same right of access to information about the appointor as the appointor has. (2B) Nothing in the Privacy and Personal Information Protection Act 1998 prevents a public sector agency (within the meaning of that Act) from disclosing information about an appointor to an appointee if the agency is satisfied that the disclosure of the information would assist the appointee to exercise his or her functions as an enduring guardian. (2C) Nothing in subsection (2A) affects the operation of the Health Records and Information Privacy Act 2002 in relation to the disclosure of health information about an appointor to an appointee. Note— Section 7 of the Health Records and Information Privacy Act 2002 (when read with section 8 of that Act) provides that a guardian of an individual may do any act authorised, permitted or required by that Act on behalf of an individual who is incapable of doing that act. An individual is incapable of doing an act for the purposes of section 7 if the individual is incapable, by reason of age, injury, illness or physical or mental impairment, of understanding the general nature and effect of the act or communicating the individual's intentions with respect to the act. If the individual is capable of doing the act, then the guardian may not do the act on behalf of the individual unless expressly authorised to do so. (3) The functions authorised by an instrument appointing an enduring guardian are, unless the Tribunal otherwise directs, to be exercised in accordance with any lawful directions contained in the instrument. 6F Ancillary powers of enduring guardian An enduring guardian may, on behalf of the appointor, sign and do all such things as are necessary to give effect to any function of the enduring guardian. 6G Acts of enduring guardian take effect as acts of appointor A decision made, an action taken and a consent given by an enduring guardian in the exercise of a function of the enduring guardian have effect as if— (a) the decision had been made, the action taken and the consent given by the appointor, and (b) the appointor had the legal capacity to do so (if the appointor would have that legal capacity but for his or her disability). 6H Revocation of appointment by appointor (1) A person who has appointed an enduring guardian may, by instrument in writing, revoke the appointment. (2) An instrument does not operate to revoke the appointment of an enduring guardian unless— (a) at the time of executing the instrument, the appointor had the legal capacity to revoke the appointment, and (b) the instrument is in or to the effect of the form prescribed by the regulations, and (c) the instrument is signed— (i) by the appointor, or (ii) if the appointor instructs—by an eligible signer who signs for the appointor in the appointor's presence, and (c1) the execution of the instrument is witnessed by an eligible witness, and (c2) the eligible witness certifies that the appointor executed the instrument voluntarily in the presence of the witness and appeared to understand the effect of the instrument, and (c3) if the instrument is signed for the appointor by an eligible signer—the eligible witness certifies that the appointor, in the witness's presence, instructed the signer to sign the instrument for the appointor, and (d) written notice of the revocation is given to the appointee. (3) Without limiting subsection (2) (c) (i), an instrument is signed by the appointor if the appointor affixes his or her mark to the instrument. (4) If an eligible signer signs an instrument on behalf of an appointor as provided by subsection (2) (c) (ii), the appointor is taken to have signed the instrument for the purposes of this Act (including subsection (2) (c2)). 6HA Automatic revocation of appointment by marriage of appointor The appointment of a person as an enduring guardian is revoked if the appointor marries or remarries a person (other than the appointee) after the date on which the person was appointed as an enduring guardian. Note— See section 6HC for certain appointments taken not to have been revoked on the recognition of same sex marriages. 6HB Resignation of appointment by appointee (1) An appointee may resign the appointee's appointment as an enduring guardian— (a) if the appointor is not in need of a guardian—by giving written notice to that effect to the appointor, or (b) if the appointor is in need of a guardian—with the approval of the Tribunal. (2) A written notice resigning an appointment as an enduring guardian must— (a) be in or to the effect of the form prescribed by the regulations, and (b) be signed— (i) by the appointee, or (ii) if the appointee instructs—by an eligible signer who signs for the appointee in the appointee's presence, and (c) be witnessed by an eligible witness, and (d) if the notice is signed for the appointee by an eligible signer—contain, or have annexed to it, a certificate signed by the eligible witness that certifies that the appointee, in the witness's presence, instructed the signer to sign the notice for the appointee. (3) Without limiting subsection (2) (b) (i), a notice is signed by the appointee if the appointee affixes his or her mark to the notice. (4) If an eligible signer signs a notice on behalf of an appointee as provided by subsection (2) (b) (ii), the appointee is taken to have signed the notice for the purposes of this Act. (5) The provisions of this section apply to the resignation of a substitute enduring guardian appointed as provided by section 6DA in the same way as they apply to the resignation of an appointee. 6HC Certain appointments not revoked on recognition of same sex marriages (1) This section applies to an appointment of a person as an enduring guardian that— (a) was made by a person who at the time of making the appointment was party to a marriage that had been solemnised and that marriage was a recognised same sex marriage on the recognition day, and (b) was in force immediately before the recognition day, and (c) was revoked by the operation of section 6HA on the recognition day because of the recognised same sex marriage of the person who made the appointment. (2) An appointment to which this section applies is taken not to have been revoked by the operation of section 6HA. (3) However, subsection (2) does not apply if the appointment to which this section applies was made by a person who made a subsequent appointment on or after the recognition day but only from the day on which that subsequent appointment was made. (4) Anything done or omitted to be done by a person, whose appointment as an enduring guardian is an appointment to which subsection (2) applies, that would have been lawful if this section applied at the time concerned, is taken to be (and always to have been) lawful. (5) In this section— recognised same sex marriage means a marriage that— (a) was solemnised before the recognition day, and (b) was recognised in Australia as valid on the recognition day because of Part 5 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 of the Commonwealth, and (c) would not have been recognised apart from that Part. recognition day means the day on which Part 5 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 of the Commonwealth commenced. 6I Automatic suspension (1) A guardianship order made in respect of a person who has appointed an enduring guardian operates to suspend, for the duration of the order, all authority of the enduring guardian to exercise a function under the appointment. (2) If a person who is the subject of a guardianship order purports to appoint an enduring guardian, the purported appointment is of no effect. (3) In this section, a reference to a guardianship order includes— (a) an order to the like effect made by the Supreme Court in the exercise of its jurisdiction with respect to guardianship of persons, and (b) an order to the like effect made under a corresponding law as referred to in Part 5A. 6J Tribunal's review of appointment (1) The Tribunal— (a) may, on its own motion, and (b) must, at the request of any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the appointor, review the appointment (or purported appointment) of an endu