Queensland: Guardianship and Administration Act 2000 (Qld)

Guardianship and Administration Act 2000 An Act to consolidate, amend and reform the law relating to the appointment of guardians and administrators to manage the personal and financial affairs of adults with impaired capacity, to confer jurisdiction on the Queensland Civil and Administrative Tribunal for particular purposes, to create an office of Public Advocate, and for other purposes Chapter 1 Preliminary 1 Short title This Act may be cited as the Guardianship and Administration Act 2000. 2 Commencement This Act commences on a day to be fixed by proclamation. 3 Definitions The dictionary in schedule 4 defines particular words used in this Act. 4 Act binds all persons This Act binds all persons, including the State, and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States. Chapter 2 Explanation 5 Acknowledgements This Act acknowledges the following— (a) an adult's right to make decisions is fundamental to the adult's inherent dignity; (b) the right to make decisions includes the right to make decisions with which others may not agree; (c) the capacity of an adult to make decisions may differ according to— (i) the type of decision to be made, including, for example, the complexity of the decision to be made; and (ii) the support available from members of the adult's existing support network; (d) the right of an adult with impaired capacity to make decisions should be restricted, and interfered with, to the least possible extent; (e) an adult with impaired capacity has a right to adequate and appropriate support for decision-making. 6 Purpose to achieve balance This Act seeks to strike an appropriate balance between— (a) the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making; and (b) the adult's right to adequate and appropriate support for decision-making. 7 Way purpose achieved This Act— (a) provides that an adult is presumed to have capacity for a matter; and (b) together with the Powers of Attorney Act 1998, provides a comprehensive scheme to facilitate the exercise of power for financial matters and personal matters by or for an adult who needs, or may need, another person to exercise power for the adult; and (c) states principles to be observed by anyone performing a function or exercising a power under the scheme; and (d) encourages involvement in decision-making of the members of the adult's existing support network; and (e) confers jurisdiction on the tribunal to administer particular aspects of the scheme; and (f) recognises the public trustee is available as a possible administrator for an adult with impaired capacity; and (g) provides for the appointment of the public advocate for systemic advocacy. 7A Relationship with Public Guardian Act 2014 This Act is to be read in conjunction with the Public Guardian Act 2014 which provides for the public guardian and the community visitor program (adult). 8 Relationship with Powers of Attorney Act 1998 (1) This Act is to be read in conjunction with the Powers of Attorney Act 1998 which provides a scheme by which— (a) by enduring power of attorney or advance health directive, an adult may authorise other persons to make particular decisions and do particular other things for the adult in relation to financial matters and personal matters at a time when the adult does not have capacity to do those things; and Note— Personal matters do not include special personal matters or special health matters—schedule 2, section 2. (b) by advance health directive, an adult may make directions for the adult's future health care and special health care; and (c) a statutory health attorney is authorised to do particular things for an adult in particular circumstances in relation to health care. (2) If there is an inconsistency between this Act and the Powers of Attorney Act 1998, this Act prevails. 9 Range of substitute decision-makers (1) This Act and the Powers of Attorney Act 1998 authorise the exercise of power for a matter for an adult with impaired capacity for the matter. (2) Depending on the type of matter involved, this may be done— (a) on an informal basis by members of the adult's existing support network; or Note— Although this Act deals primarily with formal substituted decision-making, a decision or proposed decision of an informal decision-maker may be ratified or approved under section 154. (b) on a formal basis by 1 of the following— (i) an attorney for personal matters appointed by the adult under an enduring power of attorney or advance health directive under the Powers of Attorney Act 1998; (ii) an attorney for financial matters appointed by the adult under an enduring power of attorney under the Powers of Attorney Act 1998; (iii) a statutory health attorney under the Powers of Attorney Act 1998; (iv) a guardian appointed under this Act; Note— A guardian may only be appointed for personal matters. (v) an administrator appointed under this Act; Note— An administrator may only be appointed for financial matters. (vi) the tribunal; (vii) the court. 10 Types of matter This Act categorises matters as follows— • personal matter • special personal matter • special health matter • financial matter. Note— Schedule 2 contains definitions of types of matters. 11 Application of presumption of capacity (1) If, in performing a function or exercising a power under this Act, the tribunal or the court is required to make a decision about an adult's capacity for a matter, the tribunal or the court is to presume the adult has capacity for the matter until the contrary is proven. (2) If the tribunal or the court has appointed a guardian or an administrator for an adult for a matter, the guardian or administrator is not required to presume the adult has capacity for the matter. (3) If a declaration by the tribunal or the court that an adult has impaired capacity for a matter is in force, a person or other entity that performs a function or exercises a power under this Act is entitled to rely on the declaration to presume that the adult does not have capacity for the matter. 11A Primary focus—adults (1) Adults with impaired capacity are the primary focus of this Act. (2) However, chapter 5A deals with children with an impairment. Chapter 2A Principles 11B General principles (1) The principles (the general principles) set out below must be applied by a person or other entity that performs a function or exercises a power under this Act. (2) Also, a person making a decision for an adult on an informal basis must apply the general principles in making the decision. (3) The community is encouraged to apply and promote the general principles. General principles 1 Presumption of capacity An adult is presumed to have capacity for a matter. 2 Same human rights and fundamental freedoms (1) An adult's inherent dignity and worth, and equal and inalienable rights, must be recognised and taken into account. (2) The rights of all adults to the same human rights and fundamental freedoms, regardless of a particular adult's capacity, must be recognised and taken into account. (3) The principles on which an adult's human rights and fundamental freedoms are based, and that should inform the way those rights and freedoms are taken into account, include— (a) respect for inherent dignity and worth, individual autonomy (including the freedom to make one's own choices) and independence of persons; and (b) non-discrimination; and (c) full and effective participation and inclusion in society, including performing roles valued by society; and (d) respect for difference and acceptance of persons with impaired capacity as part of human diversity and humanity; and (e) equality of opportunity; and (f) accessibility; and (g) equality between all persons regardless of gender. 3 Empowering adult to exercise human rights and fundamental freedoms The importance of the following matters must be taken into account— (a) empowering an adult to exercise the adult's human rights and fundamental freedoms; (b) encouraging and supporting an adult— (i) to perform social roles valued in society; and (ii) to live a life in the general community and to take part in activities enjoyed by the community; and (iii) to achieve maximum physical, social, emotional and intellectual potential and to become as self-reliant as practicable; (c) an adult's right to participate to the greatest extent practicable in the development of policies, programs and services for people with impaired capacity for a matter. 4 Maintenance of adult's existing supportive relationships (1) The importance of maintaining an adult's existing supportive relationships must be taken into account. (2) Maintaining an adult's existing supportive relationships may, for example, involve consultation with— (a) the adult, to find out who are the members of the adult's support network; and (b) any persons who have an existing supportive relationship with the adult; and (c) any members of the adult's support network who are making decisions for the adult on an informal basis. (3) The role of families, carers and other significant persons in an adult's life to support the adult to make decisions should be acknowledged and respected. 5 Maintenance of adult's cultural and linguistic environment and values (1) The importance of maintaining an adult's cultural and linguistic environment and set of values, including religious beliefs, must be taken into account. (2) Without limiting subsection (1), for an adult who is an Aboriginal person or a Torres Strait Islander, the importance of maintaining the adult's Aboriginal or Torres Strait Islander cultural and linguistic environment and set of values, including Aboriginal tradition or Island custom, must be taken into account. 6 Respect for privacy (1) An adult's privacy must be taken into account and respected. (2) An adult's personal information, including health information, must be protected on the same basis as other people's personal information is protected. 7 Liberty and security (1) An adult's right to liberty and security on an equal basis with others must be taken into account. (2) An adult should not be deprived of the adult's liberty except in accordance with the law. 8 Maximising an adult's participation in decision-making (1) An adult's right to participate, to the greatest extent practicable, in decisions affecting the adult's life must be recognised and taken into account. (2) An adult must be given the support and access to information necessary to enable the adult to make or participate in decisions affecting the adult's life. (3) An adult must be given the support necessary to enable the adult to communicate the adult's decisions. (4) To the greatest extent practicable, a person or other entity, in exercising power for a matter for an adult, must seek the adult's views, wishes and preferences. (5) An adult's views, wishes and preferences may be expressed orally, in writing or in another way, including, for example, by conduct. (6) An adult is not to be treated as unable to make a decision about a matter unless all practicable steps have been taken to provide the adult with the support and access to information necessary to make and communicate a decision. 9 Performance of functions and exercise of powers A person or other entity, in performing a function or exercising a power under this Act in relation to an adult, or in making a decision for an adult on an informal basis, must do so— (a) in a way that promotes and safeguards the adult's rights, interests and opportunities; and (b) in the way that is least restrictive of the adult's rights, interests and opportunities. 10 Structured decision-making (1) In applying general principle 9, a person or other entity in performing a function or exercising a power under this Act in relation to an adult, or in making a decision for an adult on an informal basis, must adopt the approach set out in subsections (2) to (5). (2) First, the person or other entity must— (a) recognise and preserve, to the greatest extent practicable, the adult's right to make the adult's own decision; and (b) if possible, support the adult to make a decision. (3) Second, the person or other entity must recognise and take into account any views, wishes and preferences expressed or demonstrated by the adult. (4) Third, if the adult's views, wishes and preferences can not be determined, the person or other entity must use the principle of substituted judgement so that if, from the adult's views, wishes and preferences, expressed or demonstrated when the adult had capacity, it is reasonably practicable to work out what the adult's views, wishes and preferences would be, the person or other entity must recognise and take into account what the person or other entity considers the adult's views, wishes and preferences would be. (5) Fourth, once the person or other entity has recognised and taken into account the matters mentioned in subsections (2) to (4), the person or other entity may perform the function, exercise the power or make the decision. 11C Health care principles (1) The principles (the health care principles) set out below must be applied by a person or other entity that performs a function or exercises a power under this Act for a health matter or a special health matter. (2) Also, an entity authorised by an Act to make a decision for an adult about prescribed special health care must apply the health care principles. (3) For subsection (2), the health care principles and the general principles apply as if a reference in the principles to performing a function or exercising a power under this Act were a reference to making a decision about prescribed special health care under the Act under which the decision is to be made. Health care principles 1 Application of general principles A person or other entity that performs a function or exercises a power under this Act, for a health matter or a special health matter in relation to an adult, must also apply the general principles. 2 Same human rights and fundamental freedoms In applying general principle 2 to a health matter or special health matter— (a) the principle of non-discrimination requires that all adults be offered appropriate health care, including preventative care, without regard to a particular adult's capacity; and (b) any consent to, or refusal of, health care for an adult must take into account the principles of respect for inherent dignity and worth, individual autonomy (including the freedom to make one's own choices) and independence of persons. 3 Performance of functions and exercise of powers In applying general principles 9 and 10 to a health matter or special health matter, a person or other entity, in performing a function or exercising a power under this Act in relation to an adult, must take into account— (a) information given by the adult's health provider; and (b) if the adult has a medical condition— (i) the nature of the adult's medical condition; and (ii) the adult's prognosis; and (c) if particular health care is proposed, any alternative health care that is available; and (d) the nature and degree of any significant risks associated with the proposed health care or any alternative health care; and (e) whether the proposed health care can be postponed because a better health care option may become available within a reasonable time or the adult is likely to become capable of making the adult's own decision about the health care; and (f) the consequences for the adult if the proposed health care is not carried out; and (g) a consideration of the benefits versus the burdens of the proposed health care; and (h) the effect of the proposed health care on the adult's dignity and autonomy. 4 Substituted judgement For applying general principle 10(4) to a health matter or special health matter, the views and wishes of an adult expressed when the adult had capacity may also be expressed— (a) in an advance health directive; or (b) by a consent to, or refusal of, health care given at a time when the adult had capacity to make decisions about the health care. Chapter 3 Appointment of guardians and administrators Part 1 Making an appointment order 12 Appointment (1) The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied— (a) the adult has impaired capacity for the matter; and (b) there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult's health, welfare or property; and (c) without an appointment— (i) the adult's needs will not be adequately met; or (ii) the adult's interests will not be adequately protected. (2) The appointment may be on terms considered appropriate by the tribunal. (3) The tribunal may make the order on its own initiative or on the application of the adult, the public guardian or an interested person. (4) This section does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B. Note— Section 80ZD provides for the appointment of guardians for restrictive practice matters. 12A Appointment—missing person (1) The tribunal may, by order, appoint an administrator for a financial matter for an adult if the tribunal is satisfied— (a) the adult is a missing person; and (b) the adult usually resides in the State; and (c) there is, or is likely to be, a need for a decision in relation to the matter; and (d) without an appointment the adult's interests in the matter would be adversely affected. (2) The tribunal may be satisfied an adult is a missing person only if the tribunal is satisfied that— (a) it is not known if the adult is alive; and (b) reasonable efforts have been made to locate the adult; and (c) for at least 90 days the adult has not contacted— (i) anyone who lives at the adult's last-known home address; or (ii) any relative or friend of the adult with whom the adult is likely to communicate. (3) This Act applies, with necessary changes, to an appointment under this section. (4) The appointment may be on terms considered appropriate by the tribunal. (5) An application for the appointment of an administrator under subsection (1) may be made by— (a) the adult's spouse; or (b) a relative of the adult; or (c) the public trustee; or (d) an interested person for the adult. 12B Relationship with Public Trustee Act 1978 (1) The tribunal may not appoint an administrator under section 12A for a financial matter for an adult if the public trustee is the administrator under the Public Trustee Act 1978, section 104(1) of the property to which the financial matter relates. (2) The tribunal may appoint an administrator under section 12A for a financial matter for an adult relating to property of which the public trustee is the administrator under the Public Trustee Act 1978, section 104(2). (3) On the making of an appointment of an administrator as mentioned in subsection (2), the public trustee ceases to be the administrator of the property under the Public Trustee Act 1978, section 104(2). 13 Advance appointment (1) The tribunal may, by order, make an appointment of a guardian for a personal matter, or an administrator for a financial matter, for an individual who is at least 171/2 years but not 18 years if the tribunal is satisfied— (a) there is a reasonable likelihood, when the individual turns 18, the individual will have impaired capacity for the matter; and (b) there is a reasonable likelihood, when the individual turns 18— (i) there will be a need to do something in relation to the matter; or (ii) the individual is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the individual's health, welfare or property; and (c) there is a reasonable likelihood, without an appointment, when the individual turns 18— (i) the individual's needs would not be adequately met; or (ii) the individual's interests would not be adequately protected. (2) This Act applies, with necessary changes, to an appointment under this section. (3) The appointment begins when the individual turns 18. (4) The appointment ends when the individual turns 19, unless the tribunal orders the appointment to be for a longer period. (5) The tribunal may order the appointment for a longer period only if the tribunal considers— (a) the need for an appointment will continue for the longer period; and (b) the need for the tribunal to review the appointment is very limited. (6) The longer period may be— (a) if the administrator is the public trustee or a trustee company under the Trustee Companies Act 1968—the period decided by the tribunal; or (b) otherwise—a period of not more than 5 years. (7) The appointment may be on terms considered appropriate by the tribunal. (8) The tribunal may make the order on its own initiative or on the application of the individual or an interested person. (9) This section does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B. 13A Advance appointment—guardian for restrictive practice matter (1) The tribunal may, by order, make an appointment of a guardian for a restrictive practice matter under chapter 5B for an individual who is at least 171/2 years but not 18 years if the tribunal is satisfied— (a) there is a reasonable likelihood, when the individual turns 18, the individual will have impaired capacity for the matter; and (b) the individual's behaviour has previously resulted in harm to the individual or others; and (c) there is a reasonable likelihood, when the individual turns 18— (i) there will be a need for a decision about the restrictive practice matter; and (ii) without the appointment— (A) the individual's behaviour is likely to cause harm to the individual or others; and (B) the individual's interests would not be adequately protected. (2) This Act applies, with necessary changes, to an appointment under this section. (3) The appointment begins when the individual turns 18. (4) The appointment ends— (a) on the day ordered by the tribunal, which must not be later than the day the individual turns 19; or (b) if no day is ordered by the tribunal—when the individual turns 19. (5) The appointment may be on terms considered appropriate by the tribunal. (6) The tribunal may make the order on its own initiative or on the application of any of the following— (a) the individual; (b) an interested person for the individual; (c) a relevant service provider; (d) the chief executive (disability services); (e) the public guardian; (f) if the individual is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016—the chief psychiatrist. 14 Appointment of 1 or more eligible guardians and administrators (1) The tribunal may appoint a person as guardian or administrator for a matter only if— (a) for appointment as a guardian, the person is— (i) a person who is at least 18 years and not a paid carer, or health provider, for the adult; or (ii) the public guardian; and (b) for appointment as an administrator, the person is— (i) a person who is at least 18 years, not a paid carer, or health provider, for the adult and not bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or (ii) the public trustee or a trustee company under the Trustee Companies Act 1968; and (c) having regard to the matters mentioned in section 15(1), the tribunal considers the person appropriate for appointment. (2) Despite subsection (1)(a)(ii), the tribunal may appoint the public guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter. (3) Subject to section 74, no-one may be appointed as a guardian for a special personal matter or special health matter. Note— The tribunal may consent to particular special health care—see section 68 (Special health care). (4) The tribunal may appoint a person as guardian or administrator for a matter for an adult on the application of the adult's parent only if the tribunal has informed the parent of the tribunal's power under subsection (6)(e) to appoint successive appointees for the matter. (5) A failure by the tribunal to comply with subsection (4) does not affect an appointment made by the tribunal. (6) The tribunal may appoint 1 or more of the following— (a) a single appointee for a matter or all matters; (b) different appointees for different matters; (c) a person to act as appointee for a matter or all matters in a stated circumstance; (d) alternative appointees for a matter or all matters so power is given to a particular appointee only in stated circumstances; (e) successive appointees for a matter or all matters so power is given to a particular appointee only when power given to a previous appointee ends; (f) joint or several, or joint and several, appointees for a matter or all matters; (g) 2 or more joint appointees for a matter or all matters, being a number less than the total number of appointees for the matter or all matters. (7) If the tribunal makes an appointment because an adult has impaired capacity for a matter and the tribunal does not consider the impaired capacity is permanent, the tribunal must state in its order when it considers it appropriate for the appointment to be reviewed. Note— Otherwise periodic reviews happen under section 28. 15 Appropriateness considerations (1) In deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the tribunal must consider the following matters (appropriateness considerations)— (a) the general principles and whether the person is likely to apply them; (b) if the appointment is for a health matter—the health care principles and whether the person is likely to apply the principles; (c) the extent to which the adult's and person's interests are likely to conflict; (d) whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult; (e) if more than 1 person is to be appointed—whether the persons are compatible; (f) whether the person would be available and accessible to the adult; (g) the person's appropriateness and competence to perform functions and exercise powers under an appointment order, including whether the person has ever been a paid carer for the adult. (2) The fact a person is a relation of the adult does not, of itself, mean the adult's and person's interests are likely to conflict. (3) Also, the fact a person may be a beneficiary of the adult's estate on the adult's death does not, of itself, mean the adult's and person's interests are likely to conflict. (4) In considering the person's appropriateness and competence, the tribunal must have regard to the following— (a) the nature and circumstances of any criminal history, whether in Queensland or elsewhere, of the person including the likelihood the commission of any offence in the criminal history may adversely affect the adult; (b) the nature and circumstances of any refusal of, or removal from, appointment, whether in Queensland or elsewhere, as a guardian, administrator, attorney or other person making a decision for someone else; (c) if the proposed appointment is of an administrator and the person is an individual— (i) the nature and circumstances of the person having been a bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; and (ii) the nature and circumstances of a proposed, current or previous arrangement with the person's creditors under the Bankruptcy Act 1966 (Cwlth), part 10 or a similar law of a foreign jurisdiction; and (iii) the nature and circumstances of a proposed, current or previous external administration of a corporation, partnership or other entity of which the person is or was a director, secretary or partner or in whose management, direction or control the person is or was involved. (5) In this section— attorney means— (a) an attorney under a power of attorney; or (b) an attorney under an advance health directive or similar document under the law of another jurisdiction. power of attorney means— (a) a general power of attorney made under the Powers of Attorney Act 1998; or (b) an enduring power of attorney; or (c) a power of attorney made otherwise than under the Powers of Attorney Act 1998, whether before or after its commencement; or (d) a similar document under the law of another jurisdiction. 16 Advice from proposed appointee about appropriateness and competence (1) An individual who has agreed to a proposed appointment (a proposed appointee) must advise the tribunal before the tribunal makes an order appointing the proposed appointee whether he or she— (a) is under 18 years; or (b) is, or has ever been, a paid carer for the adult; or (c) is a health provider for the adult; or (d) has any criminal history, whether in Queensland or elsewhere; or (e) has been, whether in Queensland or elsewhere, refused, or removed from, appointment as a guardian, administrator, attorney or other person making a decision for someone else; or (f) for a proposed appointment as administrator— (i) is bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or (ii) has ever been bankrupt or taken advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or (iii) is proposing to make, or has ever made, an arrangement with his or her creditors under the Bankruptcy Act 1966 (Cwlth), part 10 or a similar law of a foreign jurisdiction; or (iv) is or was a director, secretary or partner, or is or was involved in the management, direction or control of a corporation, partnership or other entity that is proposing to be, is or has been, under external administration. Maximum penalty—40 penalty units. (2) The proposed appointee must also advise the tribunal of any likely conflict between— (a) the duty of the proposed appointee if appointed as guardian or administrator towards the adult; and (b) either— (i) the interests of the proposed appointee or a person in a close personal or business relationship with the proposed appointee; or (ii) another duty of the proposed appointee as guardian or administrator for another person. Maximum penalty—40 penalty units. (3) The proposed appointee must give the advice by statutory declaration or on oath or affirmation if required by the tribunal. Maximum penalty—40 penalty units. (4) In this section— attorney means— (a) an attorney under a power of attorney; or (b) an attorney under an advance health directive or similar document under the law of another jurisdiction. power of attorney means— (a) a general power of attorney made under the Powers of Attorney Act 1998; or (b) an enduring power of attorney; or (c) a power of attorney made otherwise than under the Powers of Attorney Act 1998, whether before or after its commencement; or (d) a similar document under the law of another jurisdiction. 17 Guardian or administrator to update advice about appropriateness and competence (1) After appointment, a guardian or administrator is under a continuing duty to advise the tribunal of anything of which the guardian or administrator— (a) has not previously advised the tribunal; and (b) would be required to advise the tribunal under section 16 if the tribunal were considering whether to appoint the guardian or administrator. Maximum penalty—40 penalty units. (2) The guardian or administrator must give the advice by statutory declaration or on oath or affirmation if required by the tribunal. Maximum penalty—40 penalty units. 18 Inquiries about appropriateness and competence (1) The tribunal, or the registrar acting either at the direction of the tribunal or on the registrar's own initiative, may make inquiries about the appropriateness and competence to perform functions and exercise powers under an appointment order of a person who has agreed to a proposed appointment or who is a guardian or administrator. (2) If asked by the tribunal or registrar, the commissioner of the police service must give the tribunal or registrar a written report about the criminal history of— (a) a person who has agreed to a proposed appointment; or (b) a person who is a guardian or administrator; or (c) if the person mentioned in paragraph (a) or (b) is a corporation—a director, secretary or person involved in the management, direction or control of the corporation. (3) If the registrar makes the inquiries, the registrar must advise the tribunal of the results of the inquiries before the tribunal makes an appointment order. 19 Comply with other tribunal requirement (1) The tribunal may impose a requirement, including a requirement about giving security, on a guardian or administrator or a person who is to become a guardian or administrator. (2) A guardian or administrator or person who is to become a guardian or administrator must comply with the requirement. Maximum penalty—200 penalty units. 20 Financial management plan (1) Unless the tribunal orders otherwise, a person who agrees to a proposed appointment as an administrator must give a financial management plan to the tribunal, or its appropriately qualified nominee, for approval. (2) The tribunal, or its appropriately qualified nominee, may approve a financial management plan. (3) In this section— appropriately qualified, for a nominee in relation to a financial management plan, means having the qualifications or experience appropriate to approve the plan. 21 Advice to registrar of titles if appointment concerns land (1) If the tribunal appoints an administrator for a matter involving an interest in land, the tribunal and the administrator must each, within 3 months of the appointment, advise the registrar of titles. (2) If the registrar of titles receives an advice, the registrar of titles must keep the information contained in the advice in a way that ensures a search of the relevant title reveals the order making the appointment has been made. (3) The administrator must pay the titles registry fee for giving the advice. Editor's note— Note section 47 (Payment of expenses). Part 2 Relationship between appointment and enduring document 22 Attorney's power subject to tribunal authorisation (1) This section applies if— (a) an adult's enduring document gives power for a matter to an attorney; and (b) after the enduring document is made, the tribunal, with knowledge of the existence of the enduring document, gives the power to a guardian or an administrator. (2) The attorney may exercise power only to the extent authorised by the tribunal. (3) Subsection (2) does not apply for power for a health matter. Note— For health matters, see section 66 (Adult with impaired capacity—order of priority in dealing with health matter). 23 Appointment without knowledge of enduring document (1) This section applies if— (a) the tribunal gives power for a matter for an adult to a guardian or an administrator without knowledge of the existence of an enduring document giving power for the matter to an attorney for the adult; and (b) the guardian or administrator becomes aware of the existence or purported existence of the enduring document. (2) If the guardian or administrator becomes aware of the existence or purported existence of the enduring document, the guardian's or administrator's power for the matter is suspended pending review of the appointment of the guardian or administrator. Editor's note— Note section 56 (Protection if unaware of change of appointee's power). (3) The guardian or administrator must advise the tribunal in writing of the existence or purported existence of the enduring document as soon as practicable. Maximum penalty—40 penalty units. (4) If the tribunal receives an advice under subsection (3), the tribunal must review the appointment of the guardian or administrator. (5) Part 3, division 2 applies to the review. 24 Protection if unaware of appointment (1) An attorney who, without knowing power has been given by the tribunal to a guardian or administrator, purports to exercise the power does not incur any liability, either to the adult or anyone else, because of the appointment of the guardian or administrator. (2) A transaction between— (a) an attorney who purports to exercise power for a matter; and (b) a person who does not know power for the matter has been given to a guardian or administrator; is, in favour of the person, as valid as if the power had not been given to the guardian or administrator. (3) In this section— attorney means an attorney under an enduring document or a statutory health attorney. know, power has been given by the tribunal, includes have reason to believe power has been given by the tribunal. 25 Protection if unaware power already exercised by advance health directive (1) This section applies if— (a) an adult's advance health directive includes a direction about a matter; and (b) after the advance health directive is made, but without reference to it, the tribunal gives power for the matter to a guardian. (2) The guardian who, without knowing a direction about the matter is included in an advance health directive, purports to exercise power for the matter does not incur any liability, either to the adult or anyone else, because of the direction being included in the advance health directive. (3) If— (a) the guardian purports to exercise power for a matter; and (b) without knowing a direction about the matter is included in an advance health directive, a person acts in reliance on the purported exercise of power; the person does not incur any liability, either to the adult or anyone else, because of the direction being included in the advance health directive. (4) In this section— know, a direction about a matter is included in an advance health directive, includes have reason to believe the matter is dealt with by an advance health directive. Part 3 Changing or revoking an appointment order Division 1 Revocation by appointee 26 Automatic revocation (1) An appointment as a guardian or administrator for an adult for a matter ends if— (a) the guardian or administrator becomes a paid carer, or health provider, for the adult; or (b) the guardian or administrator becomes the service provider for a residential service where the adult is a resident; or (c) if the guardian or administrator and the adult are married when the appointment is made—the marriage is dissolved; or (d) if the guardian or administrator and the adult are in a civil partnership when the appointment is made—the civil partnership is terminated under the Civil Partnerships Act 2011, part 2, division 4; or (e) the guardian or administrator dies; or (f) the adult dies; or (g) for a guardian for a restrictive practice matter under chapter 5B—the tribunal gives a containment or seclusion approval under chapter 5B in relation to the adult. (2) Also, an appointment as an administrator ends if— (a) the administrator becomes bankrupt or insolvent; or (b) for an appointment made under section 12A for an adult— (i) a coroner makes a finding under the Coroners Act 2003 that the adult has died; or (ii) the court makes a declaration of death for the adult or grants a person leave to swear the death of the adult; or (iii) the adult's death is registered under the Births, Deaths and Marriages Registration Act 2023. (2A) If more than 1 event mentioned in subsection (2)(b) applies for the adult, the appointment ends on the happening of the earliest event for the adult. (3) If an appointment as a guardian or administrator ends under subsection (1)(a), (b), (c), (d) or (f) or subsection (2), the former guardian or administrator must advise the tribunal in writing of the ending of the appointment. (4) If an appointment as a guardian or administrator for a matter ends under subsection (1) or (2) and the guardian or administrator was a joint guardian or administrator for the matter— (a) if, of the joint guardians or administrators, there is 1 remaining guardian or administrator, the remaining guardian or administrator may exercise power for the matter; and (b) if, of the joint guardians or administrators, there are 2 or more remaining guardians or administrators, the remaining guardians or administrators may exercise power for the matter and, if exercising power, must exercise power jointly. (5) In this section— resident has the meaning given by the Residential Services (Accreditation) Act 2002. residential service has the meaning given by the Residential Services (Accreditation) Act 2002. service provider has the meaning given by the Residential Services (Accreditation) Act 2002. 27 Withdrawal with tribunal's leave (1) An appointment as a guardian or administrator for an adult for a matter ends if, with the tribunal's leave, the guardian or administrator withdraws as guardian or administrator for the matter. (2) If the tribunal gives leave for a guardian or administrator to withdraw for a matter— (a) the tribunal may appoint someone else to replace the withdrawing person as guardian or administrator for the matter; and (b) for a withdrawing administrator notice of whose appointment was given to the registrar of titles under section 21, the registrar of the tribunal must take reasonable steps to advise the registrar of titles of the withdrawal. (3) If the registrar of titles receives an advice of withdrawal, the registrar of titles must keep the information contained in the advice in a way that ensures a search of the relevant title reveals the withdrawal of the administrator. (4) The withdrawing administrator must pay the titles registry fee for giving the advice, unless the tribunal orders otherwise. Division 1A Provisions about appointment for adult who is missing person 27A Obligation to notify tribunal of particular circumstances (1) This section applies to an administrator appointed for an adult under section 12A if, during the term of the appointment, the administrator becomes aware— (a) the adult is alive; or (b) the adult has died. (2) The administrator must, as soon as practicable after becoming aware a circumstance mentioned in subsection (1)(a) or (b) exists, notify the tribunal in writing of the circumstance. 27B Tribunal must revoke order making appointment (1) This section applies in relation to an order appointing an administrator for an adult under section 12A. (2) The tribunal must revoke the order if the tribunal is satisfied— (a) the adult is alive; or (b) the adult has died; or (c) the adult may be presumed to be dead. (3) The order may be revoked by the tribunal on its own initiative or on the application of the administrator or an interested person. Division 2 Change or revocation at tribunal review of appointment 28 Periodic review of appointment (1) The tribunal must review an appointment of a guardian or administrator (other than the public trustee or a trustee company under the Trustee Companies Act 1968)— (a) for an appointment made because an adult has impaired capacity for a matter but the tribunal does not consider the impaired capacity is permanent—in accordance with an order of the tribunal, but at least every 5 years; or (b) otherwise—at least every 5 years. (2) This section does not apply for a guardian for a restrictive practice matter under chapter 5B. 29 Other review of appointment (1) The tribunal may review an appointment of a guardian or administrator for an adult at any time— (a) on its own initiative; or (b) for a guardian (other than a guardian for a restrictive practice matter under chapter 5B) or an administrator—on the application of any of the following— (i) the adult; (ii) an interested person for the adult; (iii) the public trustee; (iv) a trustee company under the Trustee Companies Act 1968; or (c) for a guardian for a restrictive practice matter under chapter 5B—on the application of any of the following— (i) the adult; (ii) an interested person for the adult; (iii) a relevant service provider providing disability services to the adult; (iv) the chief executive (disability services); (v) the public guardian; (vi) if the adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016—the chief psychiatrist; (vii) if the adult is a forensic disability client—the director of forensic disability. (2) However, the tribunal must review the appointment of a guardian for a restrictive practice matter under chapter 5B at least once before the term of the appointment ends. 30 Guardian or administrator to update advice about appropriateness and competence (1) For a review of an appointment, the tribunal may require the guardian or administrator to advise the tribunal of anything of which the guardian or administrator— (a) has not previously advised the tribunal; and (b) would be required to advise the tribunal under section 16 if the tribunal were considering whether to appoint the guardian or administrator. (2) The guardian or administrator must give the advice by statutory declaration or on oath or affirmation if required by the tribunal. Maximum penalty—40 penalty units. 31 Appointment review process (1) The tribunal may conduct a review of an appointment of a guardian or administrator (an appointee) for an adult in the way it considers appropriate. (2) At the end of the review, the tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made. (3) If the tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either— (a) continue its order making the appointment; or (b) change its order making the appointment, including, for example, by— (i) changing the terms of the appointment; or (ii) removing an appointee; or (iii) making a new appointment. (4) However, the tribunal may make an order removing an appointee, other than the public guardian, only if the tribunal considers— (a) the appointee is no longer competent; or (b) another person is more appropriate for appointment. (5) An appointee is no longer competent if, for example— (a) a relevant interest of the adult has not been, or is not being, adequately protected; or (b) the appointee has neglected the appointee's duties or abused the appointee's powers, whether generally or in relation to a specific power; or (c) the appointee is an administrator appointed for a matter involving an interest in land and the appointee fails to advise the registrar of titles of the appointment as required under section 21(1); or (d) the appointee has otherwise contravened this Act. (6) The tribunal may make an order removing the public guardian as an appointee if there is an appropriate person mentioned in section 14(1) available for appointment. (7) The tribunal may include in its order changing or revoking the appointment of an administrator a provision as to who must pay the titles registry fee for giving or withdrawing the advice of the change or revocation. 32 Tribunal to advise of change, revocation or ending of appointment (1) This section applies if— (a) the tribunal changes or revokes the appointment for an adult of a guardian or administrator; or (b) the tribunal is given advice of the ending of an appointment under section 26 or 57. (2) The registrar of the tribunal must take reasonable steps to advise the adult and any remaining guardians and administrators of the change, revocation or ending of the appointment. 32A Additional requirements if change, revocation or ending of appointment and interest in land involved (1) This section applies if— (a) an administrator was appointed for a matter involving an interest in land; and (b) either— (i) the tribunal changes or revokes the appointment; or (ii) the tribunal is given advice of the ending of the appointment under section 26 or 57. (2) The registrar of the tribunal and any remaining administrator appointed for a matter involving an interest in land must, within 3 months of the change, revocation or ending of the appointment, advise the registrar of titles of the change, revocation or ending of the appointment. (3) If the registrar of titles receives an advice, the registrar of titles must keep the information contained in the advice in a way that ensures a search of the relevant title reveals the order changing or revoking the appointment has been made or the advice mentioned in subsection (1)(b)(ii) has been given. Division 3 Directions 32B Directions to former guardian or administrator (1) This section applies if an appointment as a guardian or administrator ends under section 26, 27 or 31. (2) The tribunal may give directions to the former guardian or administrator that the tribunal considers necessary because of the ending of the appointment. (3) The tribunal may give the directions to the former guardian or administrator— (a) if the appointment ends under section 27—when the tribunal gives leave to withdraw as guardian or administrator for a matter; or (b) if the appointment ends under section 31—when the tribunal revokes the order that made the appointment or makes an order removing the guardian or administrator; or (c) in all cases—at any hearing of a proceeding relating to the adult for whom the person was formerly a guardian or administrator. (4) However, the directions may relate only to a matter for which the former guardian or administrator was appointed immediately before the appointment ends. Chapter 4 Functions and powers of guardians and administrators Part 1 General functions and powers of guardian or administrator 33 Power of guardian or administrator (1) Unless the tribunal orders otherwise, a guardian is authorised to do, in accordance with the terms of the guardian's appointment, anything in relation to a personal matter that the adult could have done if the adult had capacity for the matter when the power is exercised. (2) Unless the tribunal orders otherwise, an administrator is authorised to do, in accordance with the terms of the administrator's appointment, anything in relation to a financial matter that the adult could have done if the adult had capacity for the matter when the power is exercised. (3) For a guardian for a restrictive practice matter under chapter 5B, this section applies subject to sections 80ZE and 80ZF. 34 Apply principles (1) A guardian or administrator must apply the general principles. Note— See section 11B. (2) However, an administrator appointed under section 12A is not required to apply general principles 1, 3, 4, 7, 8 and 10(1) to (3) and (5). (3) In making a health care decision, a guardian must also apply the health care principles. 35 Act honestly and with reasonable diligence A guardian or administrator who may exercise power for an adult must exercise the power honestly and with reasonable diligence to protect the adult's interests. Maximum penalty—200 penalty units. 36 Act as required by terms of tribunal order A guardian or administrator who may exercise power for an adult must, when exercising the power, exercise it as required by the terms of any order of the tribunal. Maximum penalty—200 penalty units. 37 Avoid conflict transaction (1) An administrator for an adult may enter into a conflict transaction only if the tribunal has authorised the transaction, conflict transactions of that type or conflict transactions generally. Note— See section 152 for the authorisation of conflict transactions by the tribunal. (2) A conflict transaction is a transaction in which there may be conflict, or which results in conflict, between— (a) the duty of an administrator towards the adult; and (b) either— (i) the interests of the administrator or a person in a close personal or business relationship with the administrator; or (ii) another duty of the administrator. Examples— 1 A conflict transaction happens if an adult's administrator buys the adult's car. 2 A conflict transaction happens if an adult's administrator lends the adult's money to a close friend of the administrator. 3 A conflict transaction happens if an adult's administrator rents the adult's residential property to the administrator or a relative of the administrator. 4 A conflict transaction happens if an adult's administrator uses the adult's money to pay the personal expenses of the administrator, including, for example, the administrator's personal travel expenses. 5 A conflict transaction happens if an adult's administrator buys the adult's house. 6 A conflict transaction does not happen if an adult's administrator is acting under section 55 to maintain the adult's dependants. (3) However, a transaction is not a conflict transaction merely because— (a) the administrator is related to the adult; or (b) the administrator may be a beneficiary of the adult's estate on the adult's death; or (c) by the transaction the administrator in the administrator's own right and on behalf of the adult— (i) deals with an interest in property jointly held; or (ii) acquires a joint interest in property; or (iii) obtains a loan or gives a guarantee or indemnity in relation to a transaction mentioned in subparagraph (i) or (ii). (4) Also, to remove any doubt, it is declared that the making of a gift or donation under section 54 is not a conflict transaction. (5) A conflict transaction between an administrator and a person who does not know, or have reason to believe, the transaction is a conflict transaction is, in favour of the person, as valid as if the transaction were not a conflict transaction. (6) In this section— joint interest includes an interest as a joint tenant or tenant in common. 38 Multiple guardians or administrators are joint if not otherwise stated Two or more guardians or administrators for a matter are appointed as joint guardians or joint administrators for the matter if the tribunal does not order otherwise. 39 Act together with joint guardians or administrators (1) Guardians or administrators for an adult who may exercise power for a matter jointly must exercise the power unanimously. (2) If it is impracticable or impossible to exercise the power unanimously, 1 or more of the guardians or administrators, or another interested person for the adult, may apply for directions to the tribunal. 40 Consult with adult's other appointees or attorneys (1) If there are 2 or more persons who are guardian, administrator or attorney for an adult, the persons must consult with one another on a regular basis to ensure the adult's interests are not prejudiced by a breakdown in communication between them. (2) However, failure to comply with subsection (1) does not affect the validity of an exercise of power by a guardian, administrator or attorney. (3) In this section— attorney means an attorney under an enduring document or a statutory health attorney. 41 Disagreement about matter other than health matter (1) If— (a) a guardian, administrator or attorney for an adult disagrees with another person who is a guardian, administrator or attorney for the adult about the way power for a matter, other than a health matter, should be exercised; and (b) the disagreement can not be resolved by mediation by the public guardian; the public guardian or any person mentioned in paragraph (a) may apply for directions to the tribunal. (2) In this section— attorney means an attorney under an enduring document. 42 Disagreement about health matter (1) If there is a disagreement about a health matter for an adult and the disagreement can not be resolved by mediation by the public guardian, the public guardian may exercise power for the health matter. (2) If the public guardian exercises power under subsection (1), the public guardian must advise the tribunal in writing of the following details— (a) the name of the adult; (b) an outline of the disagreement; (c) the name of each guardian, attorney or eligible statutory health attorney involved in the disagreement; (d) the decision made by the public guardian. (3) In this section— attorney means an attorney under an enduring document or a statutory health attorney. disagreement about a health matter means— (a) a disagreement between a guardian or attorney for an adult and another person who is a guardian or attorney for the adult about the way power for the health matter should be exercised; or (b) a disagreement between or among 2 or more eligible statutory health attorneys for an adult about which of them should be the adult's statutory health attorney or how power for the health matter should be exercised. eligible statutory health attorneys are persons eligible to be an adult's statutory health attorney under the Powers of Attorney Act 1998, section 63(1)(a), (b) or (c). 43 Acting contrary to general principles or health care principles (1) If a guardian or attorney for a health matter for an adult— (a) refuses to make a decision about the health matter for the adult and the refusal is contrary to the general principles or the health care principles; or (b) makes a decision about the health matter for the adult and the decision is contrary to the general principles or the health care principles; the public guardian may exercise power for the health matter. (2) If the public guardian exercises power under this section, the public guardian must advise the tribunal in writing of the following details— (a) the name of the adult; (b) the name of the guardian or attorney; (c) a statement as to why the refusal or decision is contrary to the general principles or the health care principles; (d) the decision made by the public guardian. (3) In this section— attorney means an attorney under an enduring document or a statutory health attorney. 44 Right of guardian or administrator to information (1) A guardian or administrator who has power for a matter for an adult has a right to all the information the adult would have been entitled to if the adult had capacity and which is necessary to make an informed exercise of the power. (2) At the guardian's or administrator's request, a person who has custody or control of the information must give the information to the guardian or administrator, unless the person has a reasonable excuse. (3) If a person who has custody or control of the information does not comply with a request by a guardian or administrator to give in