Tasmania act

Guardianship and Administration Act 1995

In ForceTAS

Jurisdiction

Tasmania

Act Number

44 of 1995

Collection

act

Plain English Summary

8/10 complexity

Creates a legal framework for who can make personal, health and financial decisions for adults or children with impaired decision‑making ability. It defines advance care directives, how they must be made/witnessed, who may act for the person (guardians, administrators, Public Guardian), and gives the Tasmanian Civil and Administrative Tribunal powers to appoint, limit, review and direct decision‑makers. It affects represented persons, health practitioners, family members, guardians/administrators and institutions because it sets decision rules, duties, offences and dispute resolution mechanisms.

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What it does

The Guardianship and Administration Act 1995 (Tas) establishes the legal regime for substituted decision-making on behalf of adults (and in some cases children) who have impaired decision-making ability. The Tasmanian Civil and Administrative Tribunal (TCAT) has jurisdiction under the Act to make guardianship orders (covering personal matters) and administration orders (covering financial matters). The Act also provides for privately appointed enduring guardians and, since 2022 amendments, advance care directives.

The underlying philosophy is that decision-making restrictions should be imposed only where necessary, should be as limited as possible, and should reflect the will and preferences of the person concerned, consistent with the United Nations Convention on the Rights of Persons with Disabilities. The Tribunal must consider less restrictive alternatives before making orders, and orders must promote the personal and social well-being of the represented person.

The Public Guardian holds a supervisory and default appointment role when no suitable private guardian or administrator is available, and exercises a range of advocacy and monitoring functions.

Main concepts

Decision-making ability (section 11): An adult has decision-making ability unless the Tribunal or other authorised assessor is satisfied the person has impaired decision-making ability. An adult has impaired decision-making ability if, even with support, they are unable to: understand relevant information; retain information long enough to make and communicate a consistent decision; use or weigh information; or communicate the decision. Children are presumed to have impaired decision-making ability unless a registered health practitioner is satisfied otherwise.

Current sections

Direct links to the current provisions in Guardianship and Administration Act 1995.

201

Part 1

Preliminary

Part 1 Preliminary

Short title

1 Short title

This Act may be cited as the Guardianship and Administration Act 1995 .

Commencement

2 Commencement

*[Section 2 Amended by No. 33 of 1996, s. 4 ]*This Act commences on a day to be proclaimed.

Interpretation

3 Interpretation

(1) In this Act, unless the contrary intention appears –[Section 3 Subsection (1) amended by No. 4 of 2000, s. 4, Applied:28 Apr 2000] [Section 3 Subsection (1) amended by No. 18 of 2021, s. 117, Applied:05 Nov 2021] [Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024]

[Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] administration order means an order of the Tribunal appointing a person as administrator;

administrator means any person appointed as administrator in an administration order;

[Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] adult means a person who has attained the age of 18 years;

[Section 3 Subsection (1) amended by No. 15 of 2021, s. 5, Applied:21 Nov 2022] advance care directive means an advance care directive under Part 5A that is in force;

[Section 3 Subsection (1) amended by No. 40 of 2013, s. 4, Applied:21 Oct 2013] appointor, in relation to an enduring guardian, means the person who appointed the enduring guardian to be the person's enduring guardian;

[Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] child means a person who has not attained the age of 18 years;

[Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] close family member, in relation to a person, means any of the following persons who is in a close and continuing relationship with that person:

(a) a spouse of the person;

(b) a parent of the person;

(c) a person who has one or both parents in common with the person;

(d) a child of the person;

(e) a child of, or a parent of, the spouse of the person;

(f) a grandparent of the person;

(g) an aunt or uncle of the person;

(h) an adult of Aboriginal or Torres Strait Islander descent who is related to the person according to Aboriginal kinship rules or Torres Strait Islander kinship rules (as the case requires);

(i) any other carer or close friend who provides on-going personal support to the person, whether or not the other person is biologically related to the person;

[Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] close friend, in relation to a person, means another person who has a close personal relationship with the person and a personal interest in the person’s welfare;

[Section 3 Subsection (1) amended by No. 18 of 2021, s. 117, Applied:05 Nov 2021]

contravene includes failure to comply with;

[Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] Convention on the Rights of Persons with Disabilities means the United Nations Convention on the Rights of Persons with Disabilities, done at New York on 13 December 2006, as in force for Australia;

[Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] decision-making ability – see section 11 ;

[Section 3 Subsection (1) amended by No. 18 of 2021, s. 117, Applied:05 Nov 2021]

determination includes decision and order;

[Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024]

[Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] disability includes a long-term physical, mental, intellectual or sensory impairment which, in interaction with various barriers, may hinder a person’s full and effective participation in society on an equal basis with others;

enduring guardian means a person appointed as an enduring guardian under Part 5 ;

[Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] financial matter, in relation to a person, means any matter relating to the estate of the person including the income, assets, debts, liabilities, real property, personal property and financial affairs of the person, and includes any legal matter that relates to the property or finances of the person;

[Section 3 Subsection (1) amended by No. 72 of 2005, s. 121, Applied:20 Feb 2006] function includes duty and power;

[Section 3 Subsection (1) amended by No. 15 of 2021, s. 5, Applied:21 Nov 2022] government department means a Government department within the meaning of the State Service Act 2000 ;

guardian means a person named as a guardian in a guardianship order or as an enduring guardian in an instrument of appointment as such;

[Section 3 Subsection (1) amended by No. 18 of 2021, s. 117, Applied:05 Nov 2021] guardianship order means an order of the Tribunal appointing a person as guardian;

[Section 3 Subsection (1) amended by No. 18 of 2021, s. 117, Applied:05 Nov 2021] Guardianship stream proceedings means proceedings of the Tribunal under an Act in relation to which the functions and powers of the Tribunal are allocated, under the Tasmanian Civil and Administrative Tribunal Act 2020 , to the Guardianship stream of the Tribunal established under that Act;

[Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] health and medical research – see section 6 ;

[Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] health practitioner means the following:

(a) a health practitioner within the meaning of the Health Practitioner Regulation National Law (Tasmania) (other than a student);

(b) any other professional who is prescribed as a health practitioner for the purposes of this definition;

[Section 3 Subsection (1) amended by No. 15 of 2021, s. 5, Applied:21 Nov 2022] [Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] impaired decision-making ability – see section 11 ;

information means information however stored or transmitted;

[Section 3 Subsection (1) amended by No. 30 of 2015, s. 4, Applied:06 Oct 2015] intimate forensic procedure means –

(a) an external examination of the genital or anal area, the buttocks or, in the case of a female, the breasts; and

(b) an internal examination of a body cavity other than the mouth; and

(c) the taking of a sample of pubic hair; and

(d) the taking of a sample by swab or washing from the external genital or anal area, the buttocks or, in the case of a female, the breasts; and

(e) the taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks or, in the case of a female, the breasts; and

(f) the taking of a sample by swab or washing from a body cavity other than the mouth; and

(g) the taking of an X-ray of a part of the body; and

(h) the taking of a dental impression; and

(i) the taking of a photograph of, or an impression or cast from, the external genital or anal area, the buttocks or, in the case of a female, the breasts; and

(j) any other procedure prescribed by the Forensic Procedures Regulations 2010 as an intimate forensic procedure;

[Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] legal matter, in relation to a person, includes –

(a) the use of legal services for the person’s benefit; and

(b) bringing or defending a legal proceeding or hearing in a court, tribunal or other body on behalf of the person, including settling a claim before or after a legal proceeding or hearing starts;

medical or dental treatment or 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 medical practitioner; or

(b) dental treatment (including any dental procedure, operation or examination) normally carried out by or under the supervision of a dentist; or

(ba) [Section 3 Subsection (1) amended by No. 30 of 2015, s. 4, Applied:06 Oct 2015] an intimate forensic procedure and a non-intimate forensic procedure normally carried out by a person authorised to carry out the procedure under section 40 of the Forensic Procedures Act 2000 ; or

(c) any other act declared by the regulations to be medical or dental treatment for the purposes of this Act –

but does not include –

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

(e) first-aid medical or dental treatment; or

(f) the administration of a pharmaceutical drug for the purpose, and in accordance with the dosage level, recommended in the manufacturer's instructions (if the drug is one for which a prescription is not required and which is normally self-administered); or

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

[Section 3 Subsection (1) amended by No. 30 of 2015, s. 4, Applied:06 Oct 2015] non-intimate forensic procedure means –

(a) the taking of a sample of blood; and

(b) the taking of a sample of saliva; and

(c) the taking of a sample by buccal swab; and

(d) an external examination of a part of the body, other than the external genital or anal area, the buttocks or, in the case of a female, the breasts, that requires the touching of the body or the removal of clothing; and

(e) an internal examination of the mouth; and

(f) the taking of a sample of hair other than pubic hair; and

(g) the taking of a sample from a nail or under a nail; and

(h) the taking of a sample by swab or washing from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts; and

(i) the taking of a sample by vacuum suction, by scraping or by lifting by tape from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts; and

(j) the taking of a handprint, fingerprint, footprint or toeprint; and

(k) the taking of a photograph of a person or an external part of a person other than the external genital or anal area, the buttocks or, in the case of a female, the breasts; and

(l) the taking of an impression or cast from a part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts; and

(m) any other procedure prescribed by the Forensic Procedures Regulations 2010 as a non-intimate forensic procedure –

but does not include an intrusion into any body cavity of a person other than the mouth;

non-regenerative tissue means tissue that, after injury or removal, is not replaced in the body of a living person by natural processes of growth or repair;

[Section 3 Subsection (1) amended by No. 15 of 2021, s. 5, Applied:21 Nov 2022] parent means a person who has parental responsibility and includes a guardian and a person acting in loco parentis;

[Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] personal matter, in relation to a person, means a matter relating to the personal affairs or lifestyle of the person, including, but not limited to, the following matters:

(a) where and with whom the person lives, whether permanently or temporarily;

(b) who may contact (whether by post, telephone, or electronic or other means) or visit the person, including –

(i) restrictions on contact with the person or visits to the person that are necessary to promote the personal and social well-being of the person; and

(ii) the prohibition on contact with, or visits to, the person by any person if that contact or those visits would have an adverse effect on the person;

(c) the provision of care services to the person;

(d) what education, training or work the person undertakes;

(e) except as provided under Parts 5A and 6 , consenting to or refusing or withdrawing consent to the provision of health care or medical or dental treatment to the person;

(f) except as provided under Part 6A , consenting to or refusing or withdrawing consent to the conduct of health and medical research in relation to the person;

(g) any legal matter that relates to the personal affairs of the person;

person responsible has the meaning given by section 4 ;

[Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] pharmaceutical drug includes any substance specified in the Poisons List, within the meaning of the Poisons Act 1971 ;

[Section 3 Subsection (1) amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 3 Subsection (1) amended by No. 18 of 2021, s. 117, Applied:05 Nov 2021]

[Section 3 Subsection (1) amended by No. 18 of 2021, s. 117, Applied:05 Nov 2021] President has the same meaning as in the Tasmanian Civil and Administrative Tribunal Act 2020 ;

Public Guardian means the person appointed as the Public Guardian under section 14 ;

[Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] registered health practitioner means a person who is registered under the Health Practitioner Regulation National Law (Tasmania) to practise a health profession (other than as a student);

[Section 3 Subsection (1) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010]

[Section 3 Subsection (1) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] registered practitioner means a person who is a medical practitioner or a person registered under the Health Practitioner Regulation National Law (Tasmania) in the dental profession as a dentist;

[Section 3 Subsection (1) amended by No. 18 of 2021, s. 117, Applied:05 Nov 2021]

[Section 3 Subsection (1) amended by No. 18 of 2021, s. 117, Applied:05 Nov 2021] registrar means the Registrar, within the meaning of the Tasmanian Civil and Administrative Tribunal Act 2020 ;

regulations means regulations made and in force under this Act;

[Section 3 Subsection (1) amended by No. 43 of 2006, s. 21, Applied:18 Dec 2006]

[Section 3 Subsection (1) amended by No. 43 of 2006, s. 21, Applied:18 Dec 2006] represented person means a person –

(a) in respect of whom –

(i) a guardianship order is in force; or

(ii) an administration order is in force; or

(iii) both a guardianship order and an administration order are in force; or

(b) [Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] who appoints an enduring guardian and who, by reason of impaired decision-making ability, becomes unable to make decisions in relation to personal matters;

[Section 3 Subsection (1) amended by No. 15 of 2021, s. 5, Applied:21 Nov 2022] service provider includes a financial institution or person with whom a proposed represented person has deposited money or on whose account money has been deposited;

special treatment means –

(a) any treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out; or

(b) termination of pregnancy; or

(c) any removal of non-regenerative tissue for the purposes of transplantation; or

(d) [Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] any other medical or dental treatment that is declared by the regulations to be special treatment for the purposes of this Act;

[Section 3 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004]

[Section 3 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] spouse, in relation to a person, includes the person who is in a significant relationship, within the meaning of the Relationships Act 2003 , with that person;

[Section 3 Subsection (1) amended by No. 15 of 2021, s. 5, Applied:21 Nov 2022] State authority means a body or authority, whether incorporated or not, which is established or constituted by or under an Act or under the Royal Prerogative, where the body or authority or its governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another such body or authority;

[Section 3 Subsection (1) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] support, in relation to the making of a decision by a person, includes, but is not limited to, the following:

(a) the use of information or formats tailored to the particular needs of the person making the decision;

(b) assistance to communicate the decision of the person making the decision;

(c) the giving of additional time to the person making the decision;

(d) the use of technology to alleviate the effects of any disability of the person making the decision;

[Section 3 Subsection (1) amended by No. 15 of 2021, Applied:21 Nov 2022] tissue includes an organ or part of a human body or substance extracted from, or from a part of, the human body;

[Section 3 Subsection (1) amended by No. 15 of 2021, Applied:21 Nov 2022] Tribunal means the Tasmanian Civil and Administrative Tribunal.

(2) [Section 3 Subsection (2) amended by No. 21 of 2023, s. 5, Applied:01 Sep 2024] Where 2 or more guardians of a person have been appointed under section 20(4) , references to a guardian in this Act are taken as references to the guardian exercising the relevant function.

(3) [Section 3 Subsection (3) inserted by No. 40 of 2013, s. 4, Applied:21 Oct 2013] In this Act, a reference to an enduring guardian making or entering into a transaction is to be taken to be a reference to the enduring guardian making a decision, taking an action, giving a consent or doing an act.

Meaning of person responsible

4 Meaning of person responsible

(1) In this Act, person responsible for another person means –

(a) where the other person is under the age of 18 years and has a spouse, the spouse; or

(b) where the other person is under the age of 18 years and has no spouse, his or her parent; or

(c) where the other person is of or over the age of 18 years, one of the following persons, in order of priority:

(i) [Section 4 Subsection (1) amended by No. 21 of 2023, s. 6, Applied:01 Sep 2024] the other person's guardian, if the order or instrument appointing the guardian provides authority for the guardian to make the relevant decision;

(ii) [Section 4 Subsection (1) amended by No. 21 of 2023, s. 6, Applied:01 Sep 2024] the other person’s spouse;

(iii) the person having the care of the other person;

(iv) [Section 4 Subsection (1) amended by No. 30 of 2015, s. 5, Applied:06 Oct 2015] [Section 4 Subsection (1) amended by No. 21 of 2023, s. 6, Applied:01 Sep 2024] a close family member of the other person; or

(d) [Section 4 Subsection (1) amended by No. 30 of 2015, s. 5, Applied:06 Oct 2015] in relation to an intimate forensic procedure, or a non-intimate forensic procedure, in respect of the other person, to which a request under subsection (1A) relates, the Public Guardian.

(1A) [Section 4 Subsection (1A) inserted by No. 30 of 2015, s. 5, Applied:06 Oct 2015] A police officer or registered practitioner may, by notice to the Public Guardian, request the Public Guardian to become the person responsible for a person in relation to an intimate forensic procedure or a non-intimate forensic procedure in respect of the person if –

(a) the person is a person to whom Part 6 applies; and

(b) [Section 4 Subsection (1A) amended by No. 21 of 2023, s. 6, Applied:01 Sep 2024] the police officer or registered practitioner reasonably believes that the carrying out of the procedure on the person, by a person authorised to carry out the procedure under section 40 of the Forensic Procedures Act 2000 , is necessary in the circumstances; and

(c) the police officer or registered practitioner is satisfied as to the relevant matters in relation to the person.

(1B) [Section 4 Subsection (1B) inserted by No. 30 of 2015, s. 5, Applied:06 Oct 2015] For the purposes of subsection (1A)(c) , the relevant matters in relation to a person are that –

(a) another person, who is not the Public Guardian and who is the person responsible for the person –

(i) has refused to consent to the carrying out of the intimate forensic procedure or non-intimate forensic procedure on the person; or

(ii) is unavailable or inaccessible and his or her consent cannot be sought within a reasonable time; or

(b) there is no person responsible for the person who is not the Public Guardian; or

(c) [Section 4 Subsection (1B) amended by No. 21 of 2023, s. 6, Applied:01 Sep 2024] it is not appropriate in the circumstances for the consent, of a person who is not the Public Guardian and who is a person responsible for the person, to be sought.

(2) [Section 4 Subsection (2) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] If a person is under the guardianship of the Secretary of the department administering the Children, Young Persons and Their Families Act 1997 pursuant to a care and protection order made under that Act, the Secretary of that department is, notwithstanding subsection (1) , taken to be the person responsible for him or her.

(3) 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), regularly –

(a) provides domestic services and support to the other person; or

(b) arranges for the other person to be provided with domestic services and support.

(4) A person who resides in a hospital, nursing home, group home, boarding-house or hostel or any other similar facility at which he or she is cared for by some other person is not, by reason only of that fact, taken to be in the care of that other person and is taken to remain in the care of the person in whose care he or she was immediately before residing in the facility.

(5) For the purposes of this section –

(a) a reference to a spouse is to be read as a reference to a spouse who is not under guardianship and with whom the relevant person has a close and continuing relationship; and

(b) [Section 4 Subsection (5) amended by No. 21 of 2023, s. 6, Applied:01 Sep 2024] a person is taken to be a close family member of another person 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; and

(ba) [Section 4 Subsection (5) amended by No. 21 of 2023, s. 6, Applied:01 Sep 2024] where more than one person would qualify as a spouse, spouse means only the last person to so qualify; and

(c) [Section 4 Subsection (5) amended by No. 21 of 2023, s. 6, Applied:01 Sep 2024] a person is taken not to be a close family member if the person is receiving remuneration (whether from the person or some other source) for any services that he or she performs for the other person in relation to the person's care; and

(d) a reference to remuneration is to be read as not including a reference to a carer's pension; and

(e) [Section 4 Subsection (5) amended by No. 21 of 2023, s. 6, Applied:01 Sep 2024] the President may issue guidelines, not inconsistent with this section, specifying the circumstances in which a person is to be regarded as a close family member of another person.

Meaning of promoting a person's personal and social well-being

5 Meaning of promoting a person's personal and social well-being

[Section 5 Amended by No. 18 of 2021, s. 118, Applied:05 Nov 2021] [Section 5 Amended by No. 15 of 2021, s. 6, Applied:21 Nov 2022] [Section 5 Amended by No. 15 of 2021, s. 6, Applied:21 Nov 2022] [Section 5 Substituted by No. 21 of 2023, s. 7, Applied:01 Sep 2024] For the purposes of this Act, and without limiting the ways in which this may occur, the personal and social well-being of a person is promoted by –

(a) respecting the inherent dignity of the person and the person’s individual autonomy, including the freedom to make their own choices and their right to independence; and

(b) respecting and promoting the person’s own decision-making ability; and

(c) ensuring that the person is free from neglect, abuse, exploitation and other forms of harm; and

(d) the importance of preserving the dignity of risk of a person with impaired decision-making ability in respect of decisions is to be recognised and to inform those decisions; and

(e) respecting the right of the person to be treated without discrimination; and

(f) respecting the person's individuality, including personal or lifestyle activities that provide pleasure, purpose and fulfilment to the person; and

(g) having regard to the person's existing supportive relationships, religion, values, gender identity, gender expression, sexual orientation and cultural and linguistic environment; and

(h) respecting the right of Aboriginal and Torres Strait Islander people to enjoy their culture, including with other people who share that culture; and

(i) respecting the person's right to privacy and to have contact with and correspond privately with others; and

(j) recognising the importance of, and facilitating access to, the provision of supports that enable the person to exercise the person's autonomy; and

(k) recognising the importance to the person of any companion animal that the person has and having regard to the benefits that may be obtained from the person having a companion animal.

Meaning of health and medical research

6 Meaning of health and medical research

[Section 6 Amended by No. 15 of 2021, s. 7, Applied:21 Nov 2022] [Section 6 Substituted by No. 21 of 2023, s. 7, Applied:01 Sep 2024]

(1) Subject to subsection (3) , in this Act, health and medical research –

(a) means research conducted with or about individuals, or their data or tissue, in the field of medicine or health; and

(b) includes an activity undertaken for the purposes of that research.

(2) Without limiting subsection (1) , health and medical research includes the following:

(a) the administration of pharmaceutical drugs, biologicals or placebos;

(b) the use of equipment or a device;

(c) providing health care that has not yet gained the support of a substantial number of practitioners in that field of health care;

(d) providing health care to which paragraph (c) does not apply to carry out a comparative assessment referred to in paragraph (e) ;

(e) carrying out a comparative assessment of the health care provided under paragraphs (c) and (d) ;

(f) taking samples from an individual, including –

(i) a blood sample; and

(ii) a sample of tissue or fluid from the body, including the mouth, nose, nasal cavity, eyes and ears;

(g) conducting medical imaging of an individual, including the use of computed tomography, magnetic resonance imaging, x-ray and ultrasound;

(h) taking photographs, films or audio or visual recordings of an individual;

(i) any non-intrusive examination, including –

(i) a visual examination of the mouth, throat, nasal cavity, eyes or ears; and

(ii) the measuring of an individual's height, weight or vision;

(j) observing an individual;

(k) undertaking a survey, interview or focus group;

(l) collecting, using or disclosing information, including personal information in accordance with the provisions of the Personal Information Protection Act 2004 ;

(m) considering or evaluating samples or information taken under an activity listed in this subsection;

(n) any other activity prescribed to be health and medical research for the purposes of this Act.

(3) In this Act, health and medical research does not include any of the following:

(a) research conducted with or about individuals, or their data or tissue, in the field of medicine or health that –

(i) only involves analysing data about the individuals; and

(ii) does not result in the disclosure or publication of personal information;

(b) special treatment;

(c) any treatment or procedure that would otherwise require the consent of the Tribunal or any other person or body under law;

(d) any other activity prescribed not to be health and medical research for the purposes of this Act.

(4) In this section –

biological has the same meaning as in section 32A of the Therapeutic Goods Act 1989 of the Commonwealth.

Objects of Act

7 Objects of Act

[Section 7 Subsection (2) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] [Section 7 Repealed by No. 18 of 2021, s. 119, Applied:05 Nov 2021]

(1) The objects of this Act are to protect and promote the rights and dignity of persons who have impaired decision-making ability by –

(a) applying the principles of the Convention on the Rights of Persons with Disabilities, including recognising the need to support persons with impaired decision-making ability to make, participate in and implement decisions that affect their lives; and

(b) enabling the making of guardianship orders and administration orders; and

(c) recognising the giving of advance care directives; and

(d) making provision for the authorisation and approval of medical and dental treatment for persons with impaired decision-making ability; and

(e) providing for arrangements for the conduct of health and medical research involving persons with impaired decision-making ability; and

(f) setting out principles and procedures to be observed by persons when performing a function under the Act, including making decisions for or on behalf of a represented person; and

(g) ensuring that persons with impaired decision-making ability and their families are informed of, and make use of, the provisions of this Act.

Principles to be observed

8 Principles to be observed

[Section 8 Substituted by No. 68 of 2000, s. 61, Applied:04 Apr 2001] [Section 8 Repealed by No. 18 of 2021, s. 119, Applied:05 Nov 2021]

(1) A person performing a function under this Act is to observe the following principles:

(a) a person’s decision-making ability is to be respected and promoted;

(b) a person who requires support in decision making is to be provided with access to the support necessary to enable the person, as far as is practicable in the circumstances –

(i) to make and participate in decisions affecting the person; and

(ii) to express the person’s will and preferences; and

(iii) to develop the person’s decision-making ability;

(c) the views, wishes and preferences of a person with impaired decision-making ability in respect of decisions are to be respected and used to inform those decisions;

(d) the role of close family members, carers and other significant persons in the life of a person with impaired decision-making ability in respect of decisions is to be recognised;

(e) the importance of preserving the cultural and linguistic environment of the person is to be recognised;

(f) the personal and social well-being of a person with impaired decision-making ability in respect of decisions is to be promoted;

(g) the means which is the least restrictive of a person’s freedom of decision and action as possible in the circumstances is to be adopted.

(2) In addition to the principles set out in subsection (1) , if a function is to be performed under this Act by a person in relation to a child, that function is to be performed so that –

(a) as far as is practicable the best interests of the child are paramount; and

(b) full consideration is given to the following needs:

(i) to protect the child from harm;

(ii) to promote the child’s development;

(iii) to strengthen, preserve and promote positive relationships between the child and the child’s parents, family members and other people who are significant in the life of the child.

(3) Persons providing assistance on an informal basis to a person with impaired decision-making ability in respect of a decision are encouraged to apply and promote the principles in this section in providing that assistance.

Decision-making process

9 Decision-making process

[Section 9 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 9 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 9 Repealed by No. 18 of 2021, s. 119, Applied:05 Nov 2021]

(1) In this section –

serious harm, to a person, means any harm that has a significant impact on the health, welfare, property or financial situation of the person, including as a consequence of abuse, exploitation, neglect or self-neglect;

substitute decision-maker means a person with authority under this Act to make decisions for or on behalf of a person with impaired decision-making ability.

(2) A substitute decision-maker is to have regard to the following in determining whether to make a decision for or on behalf of a person with impaired decision-making ability in respect of that decision:

(a) whether the person has made an advance care directive in respect of that decision;

(b) whether the person is likely to regain decision-making ability in respect of that decision and, if so, whether the decision can be postponed without the delay causing harm.

(3) If a substitute decision-maker is satisfied that there is a need to make a decision for or on behalf of another person, the substitute decision-maker –

(a) is to give effect, as far as practicable, to the views, wishes and preferences of the person with impaired decision-making ability, if known (including those expressed in an advance care directive); and

(b) if the substitute decision-maker is not able to determine the views, wishes and preferences of the person with impaired decision-making ability, is to –

(i) give effect as far as practicable to what the substitute decision-maker reasonably believes those views, wishes and preferences are, based on all the information available; and

(ii) act in a manner that promotes the personal and social well-being of the person with impaired decision-making ability and is the least restrictive of the person's human rights.

(4) For the purposes of subsection (3)(b)(i) , information available includes information obtained by consulting with close family members, carers and other significant people in the life of the person with impaired decision-making ability whom the substitute decision-maker reasonably believes the person with impaired decision-making ability would want to be consulted.

(5) The views, wishes and preferences of the person with impaired decision-making ability should only be overridden by a substitute-decision maker for that person to the extent that –

(a) it is necessary to prevent serious harm, or the risk of serious harm, to the person or another person; or

(b) the implementation of the decision would be unlawful; or

(c) the implementation of the decision would be inconsistent with the terms of any determinations made by the Tribunal under this Act.

(6) If a substitute decision-maker overrides the views, wishes and preferences of a person with impaired decision-making ability, the substitute decision-maker is to, as far as is reasonably practicable, provide the person with information as to why they have overridden the person’s views, wishes and preferences in a way that is appropriate to the person’s circumstances.

7A.

[Section 7A Inserted by No. 43 of 2006, s. 22, Applied:18 Dec 2006] [Section 7A Repealed by No. 18 of 2021, s. 119, Applied:05 Nov 2021]

8A.

[Section 8A Inserted by No. 43 of 2006, s. 23, Applied:18 Dec 2006] [Section 8A Repealed by No. 18 of 2021, s. 119, Applied:05 Nov 2021]

Part 2

Decision-making ability

Part 2 Decision-making ability

[Part 2 Repealed by No. 18 of 2021, s. 119, Applied:05 Nov 2021]

Interpretation of Part

10 Interpretation of Part

[Section 10 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] [Section 10 Repealed by No. 18 of 2021, s. 119, Applied:05 Nov 2021]

(1) In this Part –

information, relevant to a decision, includes information on the consequences of –

(a) making the decision one way or the other; and

(b) deferring the making of the decision; and

(c) failing to make the decision.

Decision-making ability

11 Decision-making ability

[Section 11 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 11 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 11 Subsection (1) amended by No. 4 of 2000, s. 5, Applied:28 Apr 2000] [Section 11 Subsection (4) amended by No. 43 of 2006, s. 24, Applied:18 Dec 2006] [Section 11 Subsection (8) amended by No. 4 of 2000, s. 5, Applied:28 Apr 2000] [Section 11 Subsection (12) amended by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002] [Section 11 Subsection (13) inserted by No. 43 of 2006, s. 24, Applied:18 Dec 2006] [Section 11 Subsection (14) inserted by No. 43 of 2006, s. 24, Applied:18 Dec 2006] [Section 11 Subsection (15) inserted by No. 43 of 2006, s. 24, Applied:18 Dec 2006] [Section 11 Subsection (16) inserted by No. 43 of 2006, s. 24, Applied:18 Dec 2006] [Section 11 Subsection (17) inserted by No. 43 of 2006, s. 24, Applied:18 Dec 2006] [Section 11 Repealed by No. 18 of 2021, s. 119, Applied:05 Nov 2021]

(1) For the purposes of this Act, an adult is taken to have decision-making ability in respect of a decision unless a person or body responsible for assessing that decision-making ability under this Act is satisfied that the adult has impaired decision-making ability in respect of that decision.

(2) For the purposes of this Act, an adult has impaired decision-making ability in respect of a decision if the adult is unable, even with the provision of access to practicable and appropriate support, to –

(a) understand information relevant to the decision; or

(b) retain information relevant to the decision for a sufficient time to make and consistently communicate the decision; or

(c) use or weigh information relevant to the decision; or

(d) communicate the decision (whether by speech, gesture or other means).

(3) For the purposes of this Act, a child is taken to have impaired decision-making ability in respect of a decision unless a registered health practitioner is satisfied that the child has decision-making ability in respect of that decision.

(4) For the purposes of this Act, a child has decision-making ability in respect of a decision if the child –

(a) is sufficiently mature to make the decision; and

(b) is able to –

(i) understand information relevant to the decision; and

(ii) retain information relevant to the decision for a sufficient time to make and consistently communicate the decision; and

(iii) use or weigh information relevant to the decision; and

(iv) communicate the decision (whether by speech, gesture or other means), including with the provision of support.

(5) For the purposes of this Act –

(a) a person may be taken to understand information relevant to a decision if it reasonably appears, to the person assessing that person’s decision-making ability, that the person is able to understand an explanation, of the nature and consequences of the decision, given in a way that is appropriate to the person’s circumstances (whether by words, signs or other means); and

(b) a person may fluctuate between having impaired decision-making ability and decision-making ability in respect of a decision.

Limits on finding of impaired decision-making ability

12 Limits on finding of impaired decision-making ability

[Section 12 Repealed by No. 18 of 2021, s. 119, Applied:05 Nov 2021]

(1) For the purposes of this Act, a person’s decision-making ability in respect of a decision is not to be assessed as impaired merely because –

(a) the person is not able to understand matters of a technical or trivial nature; or

(b) the person does not have a particular level of literacy or education; or

(c) the person can only retain information relevant to the decision for a limited time; or

(d) the person has decision-making ability to make some decisions and not others; or

(e) a decision made by the person results, or may result, in an adverse outcome for the person; or

(f) a decision made by the person is unwise in the opinion of other persons; or

(g) the person makes a decision because –

(i) of current or past cultural or religious practices or beliefs; or

(ii) of a failure or refusal to adhere to particular cultural or religious practices or beliefs; or

(h) subject to section 11(3) , of the age of the person; or

(i) of the person’s appearance; or

(j) the person is perceived to be eccentric; or

(k) the person has engaged in illegal or immoral conduct; or

(l) of the person’s current or past expression of, or failure or refusal to express, a particular gender identity, gender expression or sexual orientation; or

(m) the person has a disability, illness or other medical condition (whether physical or mental).

(2) A person is not to be assessed under this Act as having impaired decision-making ability in respect of a decision unless reasonable steps have been taken to provide that person with access to the practicable and appropriate support needed to make and communicate the decision.

Formal assessment of decision-making ability

13 Formal assessment of decision-making ability

[Section 13 Repealed by No. 18 of 2021, s. 119, Applied:05 Nov 2021]

(1) If a health practitioner or other person is responsible for conducting an assessment of a person’s decision-making ability for the purposes of a hearing or determination of the Tribunal, that person is to take reasonable steps to –

(a) inform the person whose decision-making ability is being assessed of the nature and purpose of the assessment; and

(b) provide information to the person or the person responsible for that person about the nature of any conclusions made during the assessment and the basis for those conclusions; and

(c) provide the person or the person responsible for that person with an opportunity to ask questions about the findings of the assessment; and

(d) comply with such other requirements in relation to the assessment, if any, as may be prescribed.

(2) Where the assessment of a person’s decision-making ability is being undertaken for the purposes of an application to the Tribunal under this Act, the person making that application is to take reasonable steps to –

(a) inform the person and the person responsible for that person that an application is being considered; and

(b) identify the matter or matters in relation to which the application is being considered; and

(c) assist the person or the person responsible for that person to identify any less restrictive alternatives to making the application; and

(d) advise the person and the person responsible for that person of the right to seek legal representation or advocacy support; and

(e) provide information about access to legal representation and advocacy support; and

(f) comply with any other prescribed requirements.

(3) A person must not intentionally or recklessly interfere with, or affect, the assessment of another person’s decision-making ability under this Act.

Penalty: Fine not exceeding 20 penalty units.

Part 3

The Public Guardian

Part 3 The Public Guardian

Public Guardian and Deputy Public Guardian

14 Public Guardian and Deputy Public Guardian

[Section 14 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] Subject to and in accordance with the State Service Act 2000 , persons are to be appointed as the Public Guardian and the Deputy Public Guardian and those persons may hold those offices in conjunction with State Service employment.

Functions and powers of Public Guardian

15 Functions and powers of Public Guardian

(1) The Public Guardian has the following functions:

(a) [Section 15 Subsection (1) amended by No. 21 of 2023, s. 9, Applied:01 Sep 2024] to foster the provision of services and facilities for persons with impaired decision-making ability in respect of decisions;

(b) to support the establishment of organizations which support any such persons;

(c) to encourage the development of programmes that support any such persons (including advocacy programmes, educational programmes and programmes to encourage persons to act as guardians and administrators);

(d) to promote, speak for and protect the rights and interests of any such persons;

(e) to deal, on behalf of any such persons, with persons or bodies providing services;

(f) [Section 15 Subsection (1) amended by No. 18 of 2021, s. 120, Applied:05 Nov 2021] [Section 15 Subsection (1) amended by No. 21 of 2023, s. 9, Applied:01 Sep 2024] . . . . . . . .

(g) to investigate, report and make recommendations to the Minister on any matter relating to the operation of this Act;

(h) [Section 15 Subsection (1) amended by No. 18 of 2021, s. 120, Applied:05 Nov 2021] to act as a guardian or administrator when so appointed by the Tribunal;

(i) to disseminate information concerning –

(i) the functions of the Public Guardian; and

(ii) [Section 15 Subsection (1) amended by No. 18 of 2021, s. 120, Applied:05 Nov 2021] . . . . . . . .

(iii) the operation of this Act;

(j) [Section 15 Subsection (1) amended by No. 15 of 2021, s. 9, Applied:21 Nov 2022] [Section 15 Subsection (1) amended by No. 21 of 2023, s. 9, Applied:01 Sep 2024] to give advice on the powers that may be exercised under this Act relating to persons with impaired decision-making ability in respect of decisions or impaired decision making ability as to the operation of this Act generally and on appropriate alternatives to taking action under this Act;

(k) [Section 15 Subsection (1) amended by No. 15 of 2021, s. 9, Applied:21 Nov 2022] to perform such other functions as are assigned to the Public Guardian by this Act or any other Act or law.

(2) The Public Guardian has power to do all things necessary or convenient to be done in connection with the performance of his or her functions.

(3) During any illness or absence of the Public Guardian or during any vacancy in the office of the Public Guardian, the Deputy Public Guardian has the functions of the Public Guardian.

(4) Any function exercised by the Deputy Public Guardian while acting under subsection (3) is taken to have been exercised by the Public Guardian.

(5) The Deputy Public Guardian in exercising the functions of the Public Guardian is taken to have sufficient authority to do so.

(6) In the performance of his or her functions under this Act neither the Public Guardian nor the Deputy Public Guardian is subject to the control or direction of the Minister.

(7) [Section 15 Subsection (7) inserted by No. 15 of 2021, s. 9, Applied:21 Nov 2022] The Public Guardian may require any government department or State authority, service provider, health practitioner, guardian or administrator to provide a document, report or information to the Public Guardian if the provision of that document, report or information is necessary for the performance of the Public Guardian’s functions under this Act.

Staff of Public Guardian

16 Staff of Public Guardian

[Section 16 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] Subject to and in accordance with the State Service Act 2000 , there are to be appointed such officers as are necessary to assist the Public Guardian and the Deputy Public Guardian in the performance of their functions under this Act and those officers may hold office in conjunction with State Service employment.

Investigations

17 Investigations

(1) The Public Guardian may investigate complaints and allegations concerning the actions of a guardian or administrator or a person acting or purporting to act under an enduring power of attorney.

(1A) [Section 17 Subsection (1A) inserted by No. 15 of 2021, s. 10, Applied:21 Nov 2022] The Public Guardian may, of its own motion or following a complaint or allegation, investigate any matter relating to action taken or proposed to be taken in relation to an advance care directive.

(2) [Section 17 Subsection (2) amended by No. 18 of 2021, s. 121, Applied:05 Nov 2021] [Section 17 Subsection (2) amended by No. 18 of 2021, s. 121, Applied:05 Nov 2021] If requested to do so by the Tribunal in Guardianship stream proceedings, the Public Guardian must investigate and report to the Tribunal in relation to a matter to which those proceedings relate.

Delegation

18 Delegation

(1) The Public Guardian may in writing –

(a) delegate to a person appointed under section 16 any of the functions or powers of the Public Guardian, other than this power of delegation; and

(b) revoke wholly or partly a delegation.

(2) A delegation –

(a) may be made either generally or as otherwise provided by the instrument of delegation; and

(b) does not prevent the performance or exercise of a function or power by the Public Guardian.

(3) A function or power performed or exercised by a delegate has the same effect as if performed or exercised by the Public Guardian.

Part 4

Guardianship Orders

Part 4 Guardianship Orders

Division 1

Application for guardianship order

Division 1 Application for guardianship order

Application for guardianship order

19 Application for guardianship order

(1) [Section 19 Subsection (1) amended by No. 18 of 2021, s. 122, Applied:05 Nov 2021] [Section 19 Subsection (1) substituted by No. 21 of 2023, s. 10, Applied:01 Sep 2024] A person may apply to the Tribunal for an order appointing a guardian for a person who has impaired decision-making ability in respect of decisions relating to one or more personal matters.

(2) The application –

(a) is to be lodged with the registrar; and

(b) is to contain the prescribed information; and

(c) is to specify the grounds on which it is alleged that the proposed represented person needs a guardian.

Division 2

Appointment of guardian

Division 2 Appointment of guardian

Guardianship order

20 Guardianship order

[Section 20 Subsection (1) amended by No. 18 of 2021, s. 123, Applied:05 Nov 2021] [Section 20 Subsection (1) amended by No. 4 of 2000, s. 6, Applied:28 Apr 2000] [Section 20 Subsection (2) amended by No. 18 of 2021, s. 123, Applied:05 Nov 2021] [Section 20 Subsection (3) amended by No. 18 of 2021, s. 123, Applied:05 Nov 2021] [Section 20 Subsection (4) amended by No. 18 of 2021, s. 123, Applied:05 Nov 2021] [Section 20 Subsection (5) amended by No. 18 of 2021, s. 123, Applied:05 Nov 2021] [Section 20 Substituted by No. 21 of 2023, s. 11, Applied:01 Sep 2024]

(1) The Tribunal, after a hearing, may make an order appointing a guardian for a person in respect of one or more personal matters if –

(a) an application for an order appointing a guardian, or for an order appointing an administrator, has been made to the Tribunal in respect of the person; and

(b) the Tribunal is satisfied that the person –

(i) has impaired decision-making ability in respect of decisions relating to those personal matters; and

(ii) is in need of a guardian; and

(c) the Tribunal is satisfied that the order will promote the person's personal and social well-being.

(2) For the purposes of subsection (1)(b)(ii) , in determining whether a person is in need of a guardian, the Tribunal must consider the following:

(a) the wishes and preferences of the person, as far as they can be ascertained;

(b) whether the needs of the person could be met by other means less restrictive of that person’s freedom of decision and action;

(c) the wishes and preferences of any close family members, carers and other significant persons in the life of the person who are present at the hearing and are entitled to be heard at that hearing.

(3) If the Tribunal makes a guardianship order under subsection (1) , the order –

(a) is to specify the personal matters for which a guardian is required; and

(b) may be subject to such conditions or restrictions as the Tribunal considers necessary.

(4) Two or more guardians for a person, each with authority in respect of different personal matters, may be appointed for that person under one or more guardianship orders.

(5) An order made under this section may be expressed to take effect when the represented person attains the age of 18 years.

Persons eligible to be appointed as guardian

21 Persons eligible to be appointed as guardian

[Section 21 Subsection (1) amended by No. 18 of 2021, s. 124, Applied:05 Nov 2021] [Section 21 Subsection (2) amended by No. 18 of 2021, s. 124, Applied:05 Nov 2021] [Section 21 Substituted by No. 21 of 2023, s. 11, Applied:01 Sep 2024]

(1) The Tribunal may only appoint as a guardian for a proposed represented person –

(a) a person who is eligible for appointment under subsection (2) ; or

(b) if the Tribunal is satisfied that no person is eligible for appointment as a guardian for the proposed represented person under subsection (2) , the Public Guardian.

(2) A person who is of or over the age of 18 years is eligible for appointment as a guardian for a proposed represented person if –

(a) the person consents to act as a guardian; and

(b) in the Tribunal’s opinion, the person –

(i) understands their obligations and duties and will act in accordance with the requirements of this Act; and

(ii) is a suitable person to act as a guardian for the proposed represented person in respect of the personal matters specified in the guardianship order under section 20(3)(a) .

(3) For the purposes of subsection (2)(a) , a person consents to act as guardian if the person gives to the Tribunal a written declaration, in a form approved by the Tribunal, that states the following:

(a) that the person consents to act as a guardian for the represented person;

(b) that the person understands the person's obligations and duties under this Act;

(c) that the person understands the consequences of failing to comply with the person's obligations and duties under this Act;

(d) that the person undertakes to act in accordance with this Act;

(e) such other information, if any, as may be prescribed.

(4) For the purposes of subsection (2)(b)(ii) , in determining whether a person is a suitable person to act as a guardian for a represented person, the Tribunal must take into account the following:

(a) the wishes and preferences of the proposed represented person, so far as they can be ascertained;

(b) the desirability of preserving existing relationships that are important to the proposed represented person;

(c) the compatibility of the person proposed as guardian with the proposed represented person and with the administrator (if any) for the proposed represented person;

(d) the extent to which the person’s interests may conflict with the interests of the proposed represented person;

(e) the desirability of appointing a person who has a personal relationship with the proposed represented person, rather than a person without such a relationship;

(f) whether the person will be available to act as the proposed represented person's guardian;

(g) whether the person has the requisite skills and access to appropriate support to competently perform the role.

(5) For the purposes of subsection (4)(d) –

(a) the fact that the person is a close family member of the proposed represented person does not, of itself, mean that the person's interests are likely to conflict with the interests of the proposed represented person; and

(b) the fact that the person may be a beneficiary of the proposed represented person's estate on the proposed represented person's death does not, of itself, mean that the person's interests are likely to conflict with the interests of the proposed represented person; and

(c) the fact that the person is in conflict with a close family member of the proposed represented person does not, of itself, mean that the person's interests are likely to conflict with the interests of the proposed represented person.

21A

Duty to notify Tribunal of change in circumstances

21A Duty to notify Tribunal of change in circumstances

[Section 21A Inserted by No. 21 of 2023, s. 11, Applied:01 Sep 2024] If there has been a change in circumstances that means that a guardian for a represented person may no longer be eligible to be appointed as a guardian for that represented person under section 21, that guardian must inform the Tribunal of that change as soon as practicable after its occurrence.

Alternative guardians

22 Alternative guardians

(1) [Section 22 Subsection (1) amended by No. 21 of 2023, s. 12, Applied:01 Sep 2024] A guardianship order, other than an order appointing the Public Guardian as a guardian, may appoint a person to be an alternative guardian for the represented person.

(2) [Section 22 Subsection (2) amended by No. 21 of 2023, s. 12, Applied:01 Sep 2024] During the absence or incapacity of the guardian for a represented person, the alternative guardian of that person has the functions of his or her guardian.

23.

[Section 23 Amended by No. 18 of 2021, s. 125, Applied:05 Nov 2021] [Section 23 Repealed by No. 21 of 2023, s. 13, Applied:01 Sep 2024]

Expiration of guardianship orders

24 Expiration of guardianship orders

[Section 24 Substituted by No. 21 of 2023, s. 14, Applied:01 Sep 2024]

(1) A guardianship order has effect for 3 years, or such shorter period as the Tribunal may specify in the order, unless the order is continued under section 68 .

(2) In determining the duration of an order, the Tribunal must take into account the following:

(a) the likelihood of improvements to the represented person’s decision-making ability;

(b) the prospect that changes to circumstances, including interventions to establish support arrangements, will mitigate the need for a guardian;

(c) the requirement that the order to be made be that which is the least restrictive of the person’s freedom of decision and action as is possible in the circumstances.

Division 3

Powers and duties of guardian

Division 3 Powers and duties of guardian

Authority of guardian

25 Authority of guardian

[Section 25 Subsection (2) amended by No. 4 of 2000, s. 7, Applied:28 Apr 2000] [Section 25 Subsection (2) amended by No. 15 of 2021, s. 11, Applied:21 Nov 2022] [Section 25 Substituted by No. 21 of 2023, s. 15, Applied:01 Sep 2024]

(1) Subject to this Act, a guardianship order confers, on the person appointed as guardian, power to make decisions in relation to such of the represented person’s personal matters as are specified in the order.

(2) Where a decision is made, action taken, consent given, or act done, by a guardian for a represented person, the decision, action, consent or act has effect as if it had been made, taken, given, or done, by the represented person and the represented person had the legal capacity to do so.

(3) A guardian may, on behalf of a represented person, sign documents and do all such things as are necessary to give effect to any power or duty vested in the guardian by the guardianship order.

Exercise of authority by guardian

26 Exercise of authority by guardian

[Section 26 Subsection (1) amended by No. 18 of 2021, s. 126, Applied:05 Nov 2021] [Section 26 Substituted by No. 21 of 2023, s. 15, Applied:01 Sep 2024]

(1) A guardian under this Act must –

(a) promote the personal and social well-being of the person under guardianship; and

(b) act in accordance with the principles set out in section 8 ; and

(c) have regard to the decision-making process set out in section 9 ; and

(d) act honestly, diligently and in good faith; and

(e) treat the person under guardianship with respect and dignity; and

(f) communicate with the person under guardianship by means that the person will be best able to understand; and

(g) keep the person under guardianship informed about decisions made, information obtained and steps taken by the guardian, as appropriate in the circumstances; and

(h) regularly consult with any other guardian or administrator of the person under guardianship and keep them informed about substantial decisions or actions, subject to the terms of the guardian’s appointment; and

(i) act as an advocate for the person under guardianship where possible; and

(j) encourage and support the person under guardianship to develop the person's decision-making ability in respect of decisions where possible; and

(k) protect the person under guardianship from violence, neglect, abuse and exploitation.

(2) A guardian must make reasonable efforts –

(a) to ascertain whether the person under guardianship has given an advance care directive; and

(b) if the person under guardianship has given an advance care directive, to obtain a copy of that advance care directive.

Right of guardian to information

27 Right of guardian to information

[Section 27 Subsection (2) amended by No. 15 of 2021, s. 12, Applied:21 Nov 2022] [Section 27 Subsection (3) inserted by No. 15 of 2021, s. 12, Applied:21 Nov 2022] [Section 27 Substituted by No. 21 of 2023, s. 15, Applied:01 Sep 2024] A guardian has a right to all information to which the represented person is entitled, if the information is reasonably required for the purposes of performing a function as guardian.

27A

Keeping of records, &c.

27A Keeping of records, &c.

[Section 27A Inserted by No. 21 of 2023, s. 15, Applied:01 Sep 2024]

(1) A guardian for a represented person must keep an accurate record of all dealings and transactions made by the person as guardian.

Penalty:  Fine not exceeding 20 penalty units.

(2) A person who has ceased to be a guardian (the former guardian) for a person must retain the records required to be kept under subsection (1) in relation to that person for at least 7 years after so ceasing.

Penalty:  Fine not exceeding 20 penalty units.

(3) The former guardian for a person may give a copy of the records required to be retained under subsection (2) in relation to that person to the following persons:

(a) a guardian for that person;

(b) if the person has ceased to be a represented person, that person;

(c) if the person has died, the legal representative of that person;

(d) if the person responsible for that person is required to make decisions in relation to the person's health care, the person responsible for that person.

(4) The former guardian for a person must, on request, give a copy of the records required to be retained under subsection (2) in relation to that person to a person referred to in subsection (3)(a) , (b) , or (c) within 14 days after receipt of the request.

Penalty:  Fine not exceeding 20 penalty units.

Power to enforce guardianship order

28 Power to enforce guardianship order

(1) [Section 28 Subsection (1) amended by No. 21 of 2023, s. 16, Applied:01 Sep 2024] [Section 28 Subsection (1) amended by No. 21 of 2023, s. 16, Applied:01 Sep 2024] [Section 28 Subsection (1) amended by No. 18 of 2021, s. 127, Applied:05 Nov 2021] Without limiting section 25 , if the Tribunal makes a guardianship order appointing a guardian, the Tribunal may specify in the order that the person named as guardian or some other specified person is empowered to take such measures or actions as are specified in the order to ensure that the represented person complies with any decision of the guardian in the exercise of the powers and duties conferred by the order.

(1A) [Section 28 Subsection (1A) inserted by No. 21 of 2023, s. 16, Applied:01 Sep 2024] Measures or actions specified in a guardianship order under subsection (1) may be subject to such conditions or limitations as the Tribunal considers necessary.

(2) Where a guardian or other person specified in the order under subsection (1) takes any measure or action specified in the order in the reasonable belief that –

(a) [Section 28 Subsection (2) amended by No. 21 of 2023, s. 16, Applied:01 Sep 2024] the measure or action is required to comply with the order; and

(b) it is necessary or desirable to take that measure or action in the circumstances –

the guardian or other person is not liable to any action for false imprisonment or assault or any other action, liability, claim or demand arising out of the taking of that measure or action.

Urgent powers in case of unlawful detention of persons in need of a guardian

29 Urgent powers in case of unlawful detention of persons in need of a guardian

(1) [Section 29 Subsection (1) amended by No. 21 of 2023, s. 17, Applied:01 Sep 2024] [Section 29 Subsection (1) amended by No. 21 of 2023, s. 17, Applied:01 Sep 2024] [Section 29 Subsection (1) amended by No. 18 of 2021, s. 128, Applied:05 Nov 2021] [Section 29 Subsection (1) amended by No. 18 of 2021, s. 128, Applied:05 Nov 2021] [Section 29 Subsection (1) amended by No. 18 of 2021, s. 128, Applied:05 Nov 2021] [Section 29 Subsection (1) amended by No. 18 of 2021, s. 128, Applied:05 Nov 2021] If the Tribunal has received information that a person who appears to be in need of a guardian –

(a) is being unlawfully detained against his or her will; or

(b) is likely to suffer damage to his or her physical, emotional or mental health or well-being unless immediate action is taken –

and the Tribunal considers it necessary to do so in order to secure access to that person, the Tribunal may empower the Public Guardian or some other person specified in the order to visit the person in the company of a police officer for the purpose of preparing a report for the Tribunal.

(2) [Section 29 Subsection (2) amended by No. 21 of 2023, s. 17, Applied:01 Sep 2024] [Section 29 Subsection (2) amended by No. 18 of 2021, s. 128, Applied:05 Nov 2021] If, after receiving a report under subsection (1) , the Tribunal is satisfied that the information referred to in subsection (1) (a) or (b) is correct, the Tribunal may make an order enabling the person in need of a guardian to be taken to, and cared for at, a place specified in the order until an application under section 19 is heard.

(3) [Section 29 Subsection (3) amended by No. 21 of 2023, s. 17, Applied:01 Sep 2024] A police officer acting under an order made under subsection (1) may, with such assistance as is necessary, use such force as is reasonably necessary to enter the premises where the person in need of a guardian is found.

(4) Any person who delays or obstructs any person acting under an order under this section is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units.

Removal of persons to place of safety

30 Removal of persons to place of safety

(1) [Section 30 Subsection (1) amended by No. 21 of 2023, s. 18, Applied:01 Sep 2024] If it appears to a police officer that there is reasonable cause to suspect that a person who appears to be in need of a guardian –

(a) has been, or is being, ill-treated, neglected or unlawfully detained against his or her will; or

(b) is likely to suffer serious damage to his or her physical, emotional or mental health or well-being unless immediate action is taken –

the police officer may enter, if necessary by force, any premises in which that person is believed to be, and, if thought fit, remove that person from those premises.

(2) A police officer, in removing a person under subsection (1) , is to be accompanied by a person nominated by the Public Guardian.

(3) A person nominated by the Public Guardian must, as soon as practicable –

(a) convey the person to a place of safety; and

(b) ensure that an application for guardianship or other appropriate arrangements are made; and

(c) [Section 30 Subsection (3) amended by No. 18 of 2021, s. 129, Applied:05 Nov 2021] provide the Tribunal with a written report giving details of the action that he or she has taken under this section.

Application by guardian to Board for advice or direction

31 Application by guardian to Board for advice or direction

(1) [Section 31 Subsection (1) amended by No. 18 of 2021, s. 130, Applied:05 Nov 2021] A guardian may apply for advice or direction by the Tribunal on any matter relating to the scope of the guardianship order or the exercise of any power by the guardian under the guardianship order.

(2) [Section 31 Subsection (2) amended by No. 18 of 2021, s. 130, Applied:05 Nov 2021] The Tribunal may require notice of an application under subsection (1) to be given to any person that the Tribunal directs and may exercise its powers under this section without a hearing.

(3) [Section 31 Subsection (3) amended by No. 18 of 2021, s. 130, Applied:05 Nov 2021] The Tribunal may –

(a) approve or disapprove of any act proposed to be done by the guardian; and

(b) give such advice or direction as it considers appropriate; and

(c) [Section 31 Subsection (3) amended by No. 15 of 2021, s. 13, Applied:21 Nov 2022] vary the guardianship order or make any other order that it could have made on the original application; and

(d) [Section 31 Subsection (3) amended by No. 15 of 2021, s. 13, Applied:21 Nov 2022] if the person under guardianship has given an advance care directive, give such advice and direction in relation to the advance care directive as the Tribunal considers appropriate.

(4) [Section 31 Subsection (4) amended by No. 18 of 2021, s. 130, Applied:05 Nov 2021] The Tribunal of its own motion may direct, or offer advice to, a guardian in respect of any matter.

(5) A guardian who contravenes a direction given to him or her under this section is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units.

Part 5

Appointment of enduring guardian

Part 5 Appointment of enduring guardian

Appointment of enduring guardian

32 Appointment of enduring guardian

(1) [Section 32 Subsection (1) amended by No. 4 of 2000, s. 8, Applied:28 Apr 2000] A person who is of or over the age of 18 years may, by instrument in writing, appoint a person as his or her enduring guardian and any such instrument may appoint 2 or more persons to act jointly as enduring guardians.

(2) An instrument is not effective to appoint an enduring guardian unless –

(aa) [Section 32 Subsection (2) amended by No. 21 of 2023, s. 19, Applied:01 Sep 2024] the appointor understands the nature and effect of the instrument; and

(a) it is in accordance with Form 1 in Schedule 3 or in a form to similar effect; and

(b) [Section 32 Subsection (2) amended by No. 4 of 2000, s. 8, Applied:28 Apr 2000] [Section 32 Subsection (2) amended by No. 15 of 2021, s. 14, Applied:21 Nov 2022] there is endorsed on it –

(i) an acceptance in the form, or to the effect, of the acceptance specified in Form 1 signed by each person appointed as an enduring guardian; and

(ii) a declaration in the form, or to the effect, of the declaration specified in Form 1 signed by each person appointed as an enduring guardian, that the person has obtained and understood any advance care directive given by the appointor; and

(c) [Section 32 Subsection (2) amended by No. 21 of 2023, s. 19, Applied:01 Sep 2024] it is signed by the appointor with that signature attested by the signature of two witnesses neither of whom is a party to it nor a close family member of a party to it and each of whom has witnessed it in the presence of the appointor and each other; and

(d) [Section 32 Subsection (2) amended by No. 18 of 2021, s. 131, Applied:05 Nov 2021] it is registered with the Tribunal.

(2A) [Section 32 Subsection (2A) inserted by No. 21 of 2023, s. 19, Applied:01 Sep 2024] For the purposes of subsection (2)(aa) , an appointor is taken to understand the nature and effect of the instrument only if the appointor understands the following matters:

(a) that the appointor may, in the instrument of appointment of an enduring guardian, specify or limit the power to be given to an enduring guardian and provide instructions to the enduring guardian about the exercise of the power;

(b) when the powers contained in the instrument of appointment of an enduring guardian may be exercised;

(c) that, once the powers contained in the instrument may be exercised, the enduring guardian has power to make decisions on behalf of the appointor, subject to the terms or information about exercising the power in the instrument and in accordance with the duties and responsibilities under this Act;

(d) that the appointor may revoke the instrument of appointment of an enduring guardian at any time if the appointor has the decision-making ability to do so;

(e) that the power that the appointor has given continues even if the appointor subsequently loses decision-making ability;

(f) that the appointor is unable to oversee the use of the power if the appointor subsequently loses decision-making ability.

(3) [Section 32 Subsection (3) amended by No. 21 of 2023, s. 19, Applied:01 Sep 2024] A person is not eligible to be appointed as an enduring guardian unless the person is of or over the age of 18 years.

(4) [Section 32 Subsection (4) amended by No. 21 of 2023, s. 19, Applied:01 Sep 2024] A person is not eligible to be appointed as an enduring guardian if the person is, in a professional or administrative capacity, directly or indirectly responsible for, or involved in, the medical care or treatment of the appointor and, if a person who is validly appointed as an enduring guardian becomes so responsible or involved, the appointment lapses.

(5) [Section 32 Subsection (5) amended by No. 4 of 2000, s. 8, Applied:28 Apr 2000] [Section 32 Subsection (5) substituted by No. 21 of 2023, s. 19, Applied:01 Sep 2024] Subject to any conditions specified in the instrument, an instrument appointing an enduring guardian confers, on each appointee, power to make decisions in relation to the appointor's personal matters if the appointor subsequently is unable, by reason of impaired decision-making ability, to make decisions in relation to those personal matters.

(6) [Section 32 Subsection (6) amended by No. 18 of 2021, s. 131, Applied:05 Nov 2021] The powers conferred by an instrument appointing an enduring guardian are, unless the Tribunal otherwise directs, to be exercised in accordance with any lawful directions specified in the instrument.

(7) [Section 32 Subsection (7) inserted by No. 43 of 2006, s. 25, Applied:18 Dec 2006] [Section 32 Subsection (7) substituted by No. 21 of 2023, s. 19, Applied:01 Sep 2024] Subject to any conditions specified in the instrument, section 25(2) and (3) apply to an enduring guardian as if the enduring guardian were a guardian appointed under section 20 .

(8) [Section 32 Subsection (8) inserted by No. 15 of 2021, s. 14, Applied:21 Nov 2022] The amendments to this section and Schedule 3 made by the Guardianship and Administration Amendment (Advance Care Directives) Act 2021 do not apply in relation to an instrument of appointment of an enduring guardian made before the commencement of that Act.

32A

Alternative enduring guardian

32A Alternative enduring guardian

[Section 32A Inserted by No. 4 of 2000, s. 9, Applied:28 Apr 2000]

(1) An instrument of appointment of an enduring guardian under section 32(1) who is not the Public Guardian may appoint a person to be an alternative enduring guardian of the represented person.

(2) During the absence or incapacity of an enduring guardian of a represented person, an alternative enduring guardian of that person has the functions of his or her enduring guardian.

32B

Right of enduring guardian to information

32B Right of enduring guardian to information

[Section 32B Inserted by No. 40 of 2013, s. 5, Applied:21 Oct 2013]

(1) An enduring guardian has a right –

(a) to all the information to which the appointor is entitled; and

(b) [Section 32B Subsection (1) amended by No. 21 of 2023, s. 20, Applied:01 Sep 2024] if the appointor is unable, by reason of impaired decision-making ability, to make decisions in relation to personal matters, to all information to which the appointor would have been entitled but for the impaired decision-making ability –

if the information is reasonably required for the purpose of exercising a power, or determining whether to exercise a power, of the enduring guardian.

(2) [Section 32B Subsection (2) substituted by No. 21 of 2023, s. 20, Applied:01 Sep 2024] An enduring guardian has, if the appointor is unable, by reason of impaired decision-making ability, to make decisions in relation to the appointor's personal matters, a right to obtain, from a person who has possession of a will of the appointor, a copy, of the will, that is certified by the person.

(3) A person who has custody or control of information, or a will, to which an enduring guardian has a right under subsection (1) or (2) , must, at the request of the enduring guardian, disclose the information to the enduring guardian or provide to the enduring guardian a copy, of the will, that is certified by the person.

(4) Subsections (1) , (2) and (3) are subject to any condition or contrary intention, or express limitation, in the instrument of appointment of the enduring guardian.

32C

Transactions that may involve conflict of duty

32C Transactions that may involve conflict of duty

[Section 32C Inserted by No. 40 of 2013, s. 5, Applied:21 Oct 2013]

(1) An enduring guardian may only enter into a transaction that results, or may result, in a conflict of interest, if –

(a) the instrument of appointment of the enduring guardian specifies that the transaction may, even though it will or may result in a conflict of interest, be entered into by the enduring guardian; or

(b) the transaction is a member of a class of transactions that the instrument of appointment of the enduring guardian specifies may, even though the transactions will or may result in a conflict of interest, be entered into by the enduring guardian; or

(c) the instrument of appointment of the enduring guardian specifies that, even though such a transaction will or may result in a conflict of interest, any transaction may be entered into by the enduring guardian.

(2) For the purposes of subsection (1) , a conflict of interest is a conflict between –

(a) the duties of an enduring guardian in respect of the appointor; and

(b) either –

(i) the interests of the enduring guardian, or a relative, business associate or close friend of the enduring guardian; or

(ii) another duty of the enduring guardian.

32D

Keeping of records, &c.

32D Keeping of records, &c.

[Section 32D Inserted by No. 40 of 2013, s. 5, Applied:21 Oct 2013]

(1) An enduring guardian must keep an accurate record of all dealings and transactions made by the person as the enduring guardian.

Penalty:  Fine not exceeding 20 penalty units.

(2) A person who has ceased to be an enduring guardian must –

(a) retain, for at least 7 years after so ceasing, an accurate record of all dealings and transactions made as the enduring guardian; or

(b) [Section 32D Subsection (2) amended by No. 18 of 2021, s. 132, Applied:05 Nov 2021] provide to the Tribunal an accurate record of all dealings and transactions made as the enduring guardian.

Penalty:  Fine not exceeding 20 penalty units.

(3) [Section 32D Subsection (3) amended by No. 18 of 2021, s. 132, Applied:05 Nov 2021] A person with a proper interest in the matter may, in writing, request the Tribunal to exercise its power under subsection (4) in relation to a person who is or was an enduring guardian.

(4) [Section 32D Subsection (4) amended by No. 18 of 2021, s. 132, Applied:05 Nov 2021] [Section 32D Subsection (4) amended by No. 18 of 2021, s. 132, Applied:05 Nov 2021] The Tribunal, after receiving under subsection (3) a request in relation to –

(a) a person who is an enduring guardian; or

(b) [Section 32D Subsection (4) amended by No. 18 of 2021, s. 132, Applied:05 Nov 2021] a person who was, within the previous 7 years, an enduring guardian and who has not provided an accurate record to the Tribunal in accordance with subsection (2)(b) –

may, by notice in writing to the person, require the person to provide to the Tribunal, within the period of not less than 14 days specified in the notice, a document setting out an accurate record of all dealings and transactions made by the person as an enduring guardian.

(5) [Section 32D Subsection (5) amended by No. 18 of 2021, s. 132, Applied:05 Nov 2021] A person who receives a notice under subsection (4) must provide to the Tribunal, before the end of the period specified in the notice, a document setting out an accurate record of all dealings and transactions made by the person as the enduring guardian.

Penalty:  Fine not exceeding 20 penalty units.

(6) [Section 32D Subsection (6) amended by No. 18 of 2021, s. 132, Applied:05 Nov 2021] A document provided to the Tribunal by a person in accordance with a notice under subsection (4) –

(a) [Section 32D Subsection (6) amended by No. 18 of 2021, s. 132, Applied:05 Nov 2021] is to be in a form approved by the Tribunal; and

(b) is to be verified by a statutory declaration that is signed by the person; and

(c) [Section 32D Subsection (6) amended by No. 18 of 2021, s. 132, Applied:05 Nov 2021] is to be accompanied by other evidence, if any, that the Tribunal specifies in the notice is required to accompany the document.

Revocation of appointment by appointor

33 Revocation of appointment by appointor

(1) The appointor of an enduring guardian may, by instrument in writing, revoke the appointment.

(2) An instrument is not effective to revoke an appointment as enduring guardian unless –

(a) it is in accordance with Form 2 in Schedule 3 ; and

(b) there are at least 2 attesting witnesses to the instrument, neither of whom is a party to it nor a relative of a party to it and who have witnessed the instrument in the presence of the appointor and each other; and

(c) [Section 33 Subsection (2) amended by No. 18 of 2021, s. 133, Applied:05 Nov 2021] it is registered with the Tribunal.

Revocation or amendment of appointment by Tribunal

34 Revocation or amendment of appointment by Tribunal

(1) [Section 34 Subsection (1) amended by No. 18 of 2021, s. 134, Applied:05 Nov 2021] [Section 34 Subsection (1) amended by No. 43 of 2006, s. 26, Applied:18 Dec 2006] [Section 34 Subsection (1) amended by No. 18 of 2021, s. 134, Applied:05 Nov 2021] [Section 34 Subsection (1) substituted by No. 21 of 2023, s. 21, Applied:01 Sep 2024] The Tribunal may, on an application under this section or on its own motion and after a hearing –

(a) revoke or amend an instrument of appointment of an enduring guardian if –

(i) the enduring guardian seeks revocation of the appointment; or

(ii) the Tribunal is satisfied that the enduring guardian is not willing or able to act in that capacity; or

(iii) the Tribunal is satisfied that the enduring guardian has, in that capacity –

(A) not acted to promote the personal and social well-being of the appointor; or

(B) acted in an incompetent or negligent manner or contrary to the provisions of this Act; or

(iv) the Tribunal is satisfied that the circumstances of the appointor have changed to the extent that it is appropriate to revoke or amend the instrument; and

(b) if the Tribunal thinks fit, and is satisfied of the matters specified in 20(1)(b) and (c) , appoint a guardian for the appointor of the enduring guardian.

(1A) [Section 34 Subsection (1A) amended by No. 18 of 2021, s. 134, Applied:05 Nov 2021] [Section 34 Subsection (1A) amended by No. 18 of 2021, s. 134, Applied:05 Nov 2021] [Section 34 Subsection (1A) inserted by No. 23 of 2009, s. 14, Applied:16 Jun 2009] [Section 34 Subsection (1A) amended by No. 40 of 2013, s. 6, Applied:21 Oct 2013] [Section 34 Subsection (1A) amended by No. 40 of 2013, s. 6, Applied:21 Oct 2013] [Section 34 Subsection (1A) substituted by No. 21 of 2023, s. 21, Applied:01 Sep 2024] The Tribunal may, on an application under this section or on its own motion and after a hearing –

(a) declare that an instrument of appointment of an enduring guardian or an instrument revoking the appointment of an enduring guardian is invalid if the Tribunal is satisfied that –

(i) the appointor did not have decision-making ability in respect of the making or revoking of the instrument; or

(ii) the instrument is contrary to the provisions of this Act; or

(iii) the appointor was induced to make the instrument by reason of dishonesty or undue influence; and

(b) if the Tribunal thinks fit, and if satisfied of the matters specified in 20(1)(b) and (c) , appoint a guardian for the appointor of the enduring guardian.

(1B) [Section 34 Subsection (1B) inserted by No. 21 of 2023, s. 21, Applied:01 Sep 2024] An appointment of a person as a guardian under subsections (1)(b) or (1A)(b) has the same effect as if it had been made under Part 4 .

(2) The application –

(a) is to be in writing; and

(b) is to be lodged with the registrar; and

(c) is to contain the prescribed information.

(3) The application may be made by –

(a) the Public Guardian; or

(b) the enduring guardian; or

(c) the appointor of the enduring guardian; or

(d) the administrator of the appointor's estate; or

(e) [Section 34 Subsection (3) amended by No. 18 of 2021, s. 134, Applied:05 Nov 2021] any other person who the Tribunal is satisfied has a proper interest in the matter.

Advice or directions as to instruments of appointment

35 Advice or directions as to instruments of appointment

(1) [Section 35 Subsection (1) amended by No. 18 of 2021, s. 135, Applied:05 Nov 2021] An enduring guardian may apply for advice or direction by the Tribunal on any matter 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) [Section 35 Subsection (2) amended by No. 18 of 2021, s. 135, Applied:05 Nov 2021] The Tribunal may require notice of an application under subsection (1) to be given to any person that the Tribunal directs and may exercise its powers under this section without a hearing.

(3) [Section 35 Subsection (3) amended by No. 18 of 2021, s. 135, Applied:05 Nov 2021] The Tribunal may –

(a) approve or disapprove of any act proposed to be done by the enduring guardian; and

(b) give such advice or direction as it considers appropriate; and

(c) vary the effect of the instrument of appointment or make any other order that it could have made on an application for a guardianship order.

(4) [Section 35 Subsection (4) amended by No. 18 of 2021, s. 135, Applied:05 Nov 2021] The Tribunal of its own motion may direct, or offer advice to, an enduring guardian in respect of any matter.

(5) An enduring guardian who contravenes a direction given to him or her under this section is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units.

Part 5A

Advance care directives

Part 5A Advance care directives

35A

Objects of Part

35A Objects of Part

The objects of this Part include the following:

(a) [Section 35A Amended by No. 21 of 2023, s. 22, Applied:01 Sep 2024] to enable persons with decision-making ability to give directions about their future health care;

(b) [Section 35A Amended by No. 21 of 2023, s. 22, Applied:01 Sep 2024] to enable persons with decision-making ability to express their preferences and values in respect of their future health care, including by specifying outcomes or interventions they wish to avoid;

(c) to ensure, as far as is reasonably practicable and appropriate, that health care that is provided to a person who has given an advance care directive accords with the person's directions, preferences and values;

(d) to protect health practitioners and others giving effect to the directions, preferences and values of a person who has given an advance care directive;

(e) to provide mechanisms for the resolution of disputes in relation to advance care directives.

35B

Principles to be taken into account

35B Principles to be taken into account

[Section 35B Amended by No. 21 of 2023, s. 23, Applied:01 Sep 2024] In addition to the principles set out in section 8 , the following principles must be taken into account in connection with the administration, operation and enforcement of this Part:

(a) [Section 35B Amended by No. 21 of 2023, s. 23, Applied:01 Sep 2024] advance care directives enable persons with decision-making ability to make decisions about their future health care by stating their own directions, values and preferences;

(b) [Section 35B Amended by No. 21 of 2023, s. 23, Applied:01 Sep 2024] a person with decision-making ability can decide what constitutes quality of life for that person and can express that in an advance care directive;

(c) [Section 35B Amended by No. 21 of 2023, s. 23, Applied:01 Sep 2024] an adult is, in the absence of evidence or a law of the State to the contrary, to be presumed to have decision-making ability in respect of decisions about the adult’s health care;

(d) a person must be allowed to make his or her own decisions about the person’s health care to the extent that the person is able;

(e) a person can exercise his or her autonomy by making self-determined decisions, making collaborative decisions within a family or community, or a combination of any of these, according to the person's culture, background, history, or spiritual or religious beliefs;

(f) [Section 35B Amended by No. 21 of 2023, s. 23, Applied:01 Sep 2024] subject to this Part, an advance care directive has the same authority as the person who gave the advance care directive had when the person had decision-making ability;

(g) a person giving effect to an advance care directive on behalf of another in accordance with this Part –

(i) must, as far as is reasonably practicable, reflect the decision that the person would have made in the circumstances; and

(ii) must, in the absence of any specific directions or expressed views of the person, make decisions that are consistent with the proper care of the person and the protection of the person’s interests; and

(iii) [Section 35B Amended by No. 21 of 2023, Applied:01 Sep 2024] must, as far as is reasonably practicable, promote the human rights of the person including rights recognised in the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of Persons with Disabilities;

(h) in the event of a dispute arising in relation to an advance care directive, the directions, preferences and values (whether expressed or implied) of the person who gave the advance care directive are of paramount importance and should, insofar as is reasonably practicable, be given effect;

(i) subject to this Part, in determining the preferences and values of a person who has given an advance care directive containing a direction that is unclear, consideration may be given to –

(i) any past preferences and values expressed by the person in relation to the matter; and

(ii) the person's values as displayed or expressed during the whole or any part of the person’s life; and

(iii) any other matter that is relevant in determining the preferences and values of the person in relation to the matter.

35C

Interpretation of Part

35C Interpretation of Part

(1) In this Part –

advance care directive form means a form approved by the Secretary of the Department for the giving of advance care directives or a form to similar effect;

authorised decision maker, in relation to a person, means a person referred to in section 35R(1) who is authorised to provide consent or a refusal of consent to the provision of health care to that person;

binding provision – see section 35M ;

[Section 35C Subsection (1) amended by No. 21 of 2023, s. 23, Applied:01 Sep 2024] health care – see section 35E ;

health care decision, in relation to a person, means a decision regarding the provision of health care to that person;

[Section 35C Subsection (1) amended by No. 21 of 2023, s. 24, Applied:01 Sep 2024]

health service has the same meaning as in the Health Practitioner Regulation National Law (Tasmania);

life-sustaining measures means health care that supplants or maintains the operation of vital bodily functions that are temporarily or permanently incapable of independent operation, and includes assisted ventilation, the provision of nutrition and hydration through artificial means and cardiopulmonary resuscitation;

[Section 35C Subsection (1) amended by No. 21 of 2023, s. 24, Applied:01 Sep 2024]

non-binding provision – see section 35M ;

[Section 35C Subsection (1) amended by No. 21 of 2023, s. 24, Applied:01 Sep 2024]

(2) For the purposes of this Part, a reference to an act is to be taken to include a reference to an attempt to do the act, and a refusal or omission to act.

(3) For the purposes of this Part, a reference to a provision of an advance care directive is to be taken to include a reference to a condition of, or instruction or direction in, an advance care directive.

(4) Unless the contrary intention appears, a reference in this Part to the provision of health care to a person is to be taken to include a reference to the withdrawal, or withholding, of health care to the person (including the withdrawal or withholding of life-sustaining measures).

(5) Subject to any provision of an advance care directive to the contrary, a reference in an advance care directive to particular health care is to be taken to include a reference to any other health care that is of substantially the same kind, or that is only distinguishable on technical grounds not likely to be understood or appreciated by the person who gave the advance care directive.

35D.

[Section 35D Repealed by No. 21 of 2023, s. 24, Applied:01 Sep 2024]

35E

Meaning of health care

35E Meaning of health care

(1) Subject to subsection (2) , in this Part, health care means health care of the following kinds:

(a) any care, health service, procedure or treatment (including medical or dental treatment) provided by, or under the supervision of, a health practitioner for the purpose of diagnosing, preventing, assessing, maintaining or treating a physical condition or mental illness;

(b) an intimate forensic procedure and a non-intimate forensic procedure normally carried out by a person authorised to carry out the procedure under section 40 of the Forensic Procedures Act 2000 ;

(c) [Section 35E Subsection (1) amended by No. 21 of 2023, s. 25, Applied:01 Sep 2024] the conduct of health and medical research;

(d) any other kind of health care prescribed to be health care for the purposes of this Part.

(2) In this Part, health care does not include –

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

(b) first-aid medical or dental treatment; or

(c) the administration of a pharmaceutical drug for the purpose, and in accordance with the dosage level, recommended in the manufacturer's instructions (if the drug is one for which a prescription is not required and which is normally self-administered); or

(d) any other kind of health care that is prescribed as not being health care for the purposes of this Part.

35F.

[Section 35F Repealed by No. 21 of 2023, s. 26, Applied:01 Sep 2024]

35G

Giving an advance care directive

35G Giving an advance care directive

(1) Subject to this Part, a person may give an advance care directive containing provisions that reflect the directions, values and preferences of that person with regard to that person’s future health care.

(2) A person may give an advance care directive if the person –

(a) [Section 35G Subsection (2) amended by No. 21 of 2023, s. 27, Applied:01 Sep 2024] has decision-making ability in respect of health care decisions; and

(b) understands what an advance care directive is; and

(c) understands the consequences of giving an advance care directive.

(3) An advance care directive is invalid if the advance care directive –

(a) was not made voluntarily; or

(b) was made as a result of dishonesty, inducement or coercion.

(4) A person must not by dishonesty or undue influence induce another person to give an advance care directive or include a provision in an advance care directive.

Penalty: In the case of –

(a) an individual, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(5) A person must not require another person to give an advance care directive, or include a provision in an advance care directive, as a precondition to providing a service.

Penalty: In the case of –

(a) an individual, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

35H

Formal requirements for advance care directives

35H Formal requirements for advance care directives

(1) In this section –

minor error includes, but is not limited to, a typographical, grammatical, spelling, punctuation, cross referencing or obsolete referencing error.

(2) Subject to this Part, a person may give an advance care directive in writing, orally or by any other means that enables the directions, preferences and values of the person giving the advance care directive to be documented (including through audio visual recording).

(3) A person giving an advance care directive in writing may give the advance care directive by completing an advance care directive form or causing an advance care directive form to be so completed.

(4) An advance care directive given in writing must –

(a) include the name, residential address and date of birth of the person giving the advance care directive; and

(b) be signed and dated by –

(i) the person giving the advance care directive; or

(ii) an adult on behalf of the person giving the advance care directive, only if the signing by that adult –

(A) is requested by the person giving the advance care directive; and

(B) is made in the presence of the person giving the advance care directive; and

(c) be witnessed upon completion in accordance with section 35I(2) ; and

(d) comply with any prescribed requirements in relation to the giving of written advance care directives.

(5) An advance care directive given by means, other than writing, must –

(a) include the name, residential address and date of birth of the person giving the advance care directive; and

(b) include the date on which the advance care directive was given; and

(c) be witnessed upon completion in accordance with section 35I(4) ; and

(d) comply with any prescribed requirements in relation to the giving of advance care directives by means other than writing.

(6) An advance care directive, or a provision of an advance care directive, is not invalid under section 35K merely because –

(a) in the case of a written advance care directive, the person giving the advance care directive did not complete a particular section of the advance care directive form, or did not cause it to be completed, other than a section specified in an instruction on the form as being a section that must be completed; or

(b) the person giving the advance care directive was not fully informed in relation to each medical condition, or any other circumstance, to which the advance care directive relates; or

(c) the person giving the advance care directive did not seek medical, legal or other professional advice in relation to the advance care directive; or

(d) the advance care directive contains a minor error that does not affect the ability to understand the directions, preferences and values of the person who gave the advance care directive; or

(e) provisions in the advance care directive are expressed in informal language rather than medical or technical terminology; or

(f) the person giving the advance care directive expressed his or her preferences and values in general terms rather than specific provisions, or his or her preference and values in relation to a particular matter need to be inferred from the advance care directive; or

(g) provisions in the advance care directive are based on cultural or religious grounds.

35I

Witnessing of advance care directive

35I Witnessing of advance care directive

(1) [Section 35I Subsection (1) omitted by No. 21 of 2023, s. 28, Applied:01 Sep 2024] . . . . . . . .

(2) A written advance care directive must be witnessed by 2 persons as follows:

(a) each witness must sign and date the advance care directive in the presence of each other and the person giving the advance care directive;

(b) each witness must certify on the advance care directive form the following:

(i) that he or she is satisfied as to the identity of the person giving the advance care directive;

(ii) that the person giving the advance care directive appears to understand that the advance care directive is about future health care;

(iii) that the person giving the advance care directive appears to understand the nature and effect of each statement contained in the advance care directive;

(iv) that, in the opinion of the witness, the person giving the advance care directive did not appear to be acting under any form of duress or coercion;

(v) that, in the opinion of the witness, the provisions contained in the advance care directive reflect the directions, preferences and values of the person making the advance care directive;

(c) in accordance with any other prescribed witnessing requirements.

(3) If a written advance care directive is given by a child, one of the witnesses referred to in subsection (2) must be a registered health practitioner.

(4) An advance care directive given by means other than writing must be witnessed –

(a) by 2 persons (one of whom is a registered health practitioner) who are present at the same time; and

(b) in accordance with any prescribed witnessing requirements.

(5) A person must not witness an advance care directive given under this Part –

(a) [Section 35I Subsection (5) amended by No. 21 of 2023, s. 29, Applied:01 Sep 2024] if the person is a close family member of the person giving the advance care directive; or

(b) if the person is a carer for the person giving the advance care directive (whether those services are provided in a paid or voluntary capacity); or

(c) if the person has signed the advance care directive pursuant to section 35H(4)(b)(ii) on behalf of the person giving the advance care directive; or

(d) if the person has not attained 18 years of age; or

(e) if the person has a known pecuniary interest in the estate of the person giving the advance care directive; or

(f) if the person, as a result of his or her position in a hospital, hospice, nursing home or other facility, has a direct or indirect ability to control or influence the care and management of the person giving the advance care directive who is resident at that facility; or

(g) [Section 35I Subsection (5) amended by No. 21 of 2023, s. 29, Applied:01 Sep 2024] if the person has been appointed as a guardian for the person giving the advance care directive; or

(h) in any other prescribed circumstances in which a person may not be a witness in relation to an advance care directive.

35J

Formal requirements for advance care directive in language other than English

35J Formal requirements for advance care directive in language other than English

(1) The following provisions apply if a person wishes to give an advance care directive in a language other than English:

(a) the advance care directive may be given with the assistance of an interpreter or translator who is qualified as an interpreter or translator in the language that the person who wishes to give the advance care directive understands;

(b) the advance care directive form must be completed in English;

(c) the interpreter or translator must certify on the advance care directive form that the interpreter or translator assisted in the interpretation or translation of the advance care directive form.

(2) A person must not act as an interpreter or translator for a person who wishes to give an advance care directive under this Part if the interpreter or translator is a person prohibited from witnessing the advance care directive under section 35I(5) .

35K

Advance care directives that do not meet requirements

35K Advance care directives that do not meet requirements

(1) If a person has given, or attempted to give, an advance care directive in a form that does not meet a requirement under section 35H , 35I or 35J , that advance care directive is not valid unless the Tribunal otherwise orders under subsection (2) .

(2) The Tribunal may make an order declaring that an advance care directive is valid despite a failure to comply with a requirement under section 35H , 35I or 35J .

(3) Despite subsection (1) , if an advance care directive given by a person does not meet a requirement under section 35H , 35I or 35J , a provision of that advance care directive may be taken into account by a health practitioner, the Public Guardian, the Tribunal or an authorised decision maker for that person, in determining the person's directions, preferences and values.

35L

Provisions that are void or of no effect in advance care directives

35L Provisions that are void or of no effect in advance care directives

(1) In this section –

mandatory health care means –

(a) an assessment that is authorised under an assessment order under the Mental Health Act 2013 ; or

(b) treatment that is authorised under a treatment order under the Mental Health Act 2013 ; or

(c) health care of a kind prescribed for the purposes of this definition.

(2) Subject to this Part, a provision in an advance care directive is void and of no effect to the extent that the provision –

(a) is unlawful; or

(b) requires an unlawful act to be performed; or

(c) comprises a refusal of mandatory health care; or

(d) would, if given effect, cause a health practitioner or other person to provide health care that –

(i) contravenes a professional standard or code of conduct that applies to the health practitioner or person; or

(ii) would otherwise amount to professional misconduct or unprofessional conduct under the Health Practitioner Regulation National Law (Tasmania); or

(e) is a type of provision prescribed for the purposes of this section as being void and of no effect.

(3) For the purposes of subsection (2) , a reference to a professional standard or code of conduct does not include a reference to a standard or code of conduct that –

(a) is prepared by or on behalf of a hospital, clinic, hospice, nursing home or any other place at which health care is provided to a person; and

(b) regulates the provision of health care or other services at that place.

(4) A provision in an advance care directive that compromises a refusal or withdrawal of health care is not void under subsection (2)(b) solely on the basis that the refusal or withdrawal of that health care would result in the necessaries of life not being provided.

(5) For the purposes of subsection (4) , the expression necessaries of life has the same meaning as in sections 144 and 145 of the Criminal Code.

Division 4

Operation of advance care directives

Division 4 Operation of advance care directives

[Division 4 Inserted by No. 15 of 2021, s. 15, Applied:21 Nov 2022]

35M

Binding and non-binding provisions

35M Binding and non-binding provisions

(1) Subject to this section, a provision of an advance care directive that comprises a clear and unambiguous refusal or withdrawal of particular health care is a binding provision.

(2) If a binding provision of an advance care directive is expressed to apply, or to be binding, only in specified circumstances, the provision is to be taken to be a binding provision only in respect of those circumstances.

(3) All other provisions of an advance care directive are non-binding provisions.

(4) For the purposes of this Part, a non-binding provision is a statement of a person’s preferences and values with regard to their future health care and may include but is not limited to the following:

(a) what is important to the person regarding any future health care;

(b) what gives the person quality of life;

(c) what health care outcomes the person regards as acceptable;

(d) the person’s preferred places of care and place to die;

(e) cultural or religious beliefs which may impact on future health care;

(f) any other matter that the person wishes to be taken into account in making decisions about their future health care.

(5) If an otherwise binding provision is unclear or ambiguous in relation to a particular circumstance but is still indicative of a person’s preferences or values in relation to those circumstances, the provision is to be taken to be a non-binding provision for that particular circumstance.

35N

When advance care directives are in force

35N When advance care directives are in force

(1) An advance care directive is taken to be in force from the time the advance care directive is witnessed in accordance with this Part.

(2) Subject to this Part, an advance care directive remains in force until the earliest of the following:

(a) if an expiry date is specified in the advance care directive, that date;

(b) it is revoked in accordance with this Act;

(c) the death of the person who gave the advance care directive.

35O

Requirement to make reasonable inquiries as to advance care directive

35O Requirement to make reasonable inquiries as to advance care directive

(1) In this section –

health care facility means a hospital, nursing home or such other facility as is prescribed for the purposes of this definition.

(2) [Section 35O Subsection (2) amended by No. 21 of 2023, s. 29, Applied:01 Sep 2024] If a health practitioner reasonably believes that an adult has impaired decision-making ability in respect of a health care decision, the health practitioner must, before providing health care to that adult, make reasonable efforts –

(a) to ascertain if the adult has given an advance care directive; and

(b) if the adult has given an advance care directive, to obtain a copy of that advance care directive.

(3) If a health practitioner reasonably believes that a child has given an advance care directive, the health practitioner must make reasonable efforts to obtain a copy of that advance care directive before providing health care to that child.

(4) Subsections (2) and (3) apply subject to section 35V .

(5) The person in charge of a health care facility must take reasonable steps –

(a) to ascertain if a person who is cared for in that facility has given an advance care directive; and

(b) if the person who is cared for in that facility has given an advance care directive, to ensure that a copy of the advance care directive is placed on the person’s health records at the facility.

35P

No variation of advance care directive

35P No variation of advance care directive

An advance care directive may not be varied except by the Tribunal pursuant to sections 35Z or 35ZK .

Division 5

Consent to health care when advance care directive in effect

Division 5 Consent to health care when advance care directive in effect

[Division 5 Inserted by No. 15 of 2021, s. 15, Applied:21 Nov 2022]

35Q

Consent given or refused in advance care directive

35Q Consent given or refused in advance care directive

(1) A health practitioner may provide health care in accordance with a consent given or refused in an advance care directive if –

(a) [Section 35Q Subsection (1) amended by No. 21 of 2023, s. 30, Applied:01 Sep 2024] at the relevant time, the person who gave the advance care directive has impaired decision-making ability in respect of the health care decision; and

(b) the consent or refusal of consent to the health care is clear and unambiguous.

(2) Clear and unambiguous consent to health care given or refused in an advance care directive –

(a) is taken to be the consent or refusal of consent (as the case requires) of the person who gave the advance care directive; and

(b) is taken to have the same effect for all purposes as if the person who gave the advance care directive were capable of giving such consent or the refusal of such consent.

35R

Consent given or refused by authorised decision maker for person who has given an advance care directive

35R Consent given or refused by authorised decision maker for person who has given an advance care directive

(1) A person may provide consent or a refusal of consent to the provision of health care to a person who has given an advance care directive if, at the relevant time –

(a) [Section 35R Subsection (1) amended by No. 21 of 2023, s. 31, Applied:01 Sep 2024] the health practitioner seeking consent reasonably believes that the person who gave the advance care directive has impaired decision-making ability in respect of the decision; and

(b) the advance care directive does not provide clear and unambiguous consent or a refusal of consent to the health care; and

(c) the person being asked to provide the consent –

(i) is a person who would otherwise be authorised to provide consent to the provision of that health care under Part 6; or

(ii) has been appointed as a guardian for the person who gave the advance care directive and that appointment provides authority for them to make a decision of the relevant kind; or

(iii) is the person responsible under this Act for the person who has given the advance care directive.

(2) A consent provided under this section in respect of the provision of health care to a person who has given an advance care directive has effect as if –

(a) the person had been capable of giving consent to the provision of the health care; and

(b) the health care had been carried out with that person's consent.

35S

Authorised decision maker to make decisions to give effect to advance care directive

35S Authorised decision maker to make decisions to give effect to advance care directive

(1) Subject to this Part, an authorised decision maker for a person who has given an advance care directive –

(a) must comply with any binding provisions of the advance care directive; and

(b) is to, as far as is reasonably practicable –

(i) comply with any non-binding provisions of the advance care directive that relates to health care of the relevant kind; and

(ii) seek to avoid any outcome or intervention that the person who gave the advance care directive would wish to be avoided (whether such wish is expressed or implied); and

(iii) endeavour to make health care decisions in a manner that is consistent with the principles set out in section 35B ; and

(iv) make health care decisions that the authorised decision maker reasonably believes the person who gave the advance care directive would have made in the circumstances.

(2) Despite subsection (1), an authorised decision maker for a person who has given an advance care directive must act in accordance with –

(a) any agreement reached in relation to the advance care directive at a mediation under section 35ZI ; and

(b) any direction of the Tribunal given in relation to the advance care directive.

35T

Health practitioners to give effect to advance care directives

35T Health practitioners to give effect to advance care directives

(1) [Section 35T Subsection (1) amended by No. 21 of 2023, s. 32, Applied:01 Sep 2024] Subject to this Part, a health practitioner who is providing, or is to provide, health care to a person who has given an advance care directive and who has impaired decision-making ability in respect of a health care decision –

(a) must comply with a binding provision of the advance care directive; and

(b) is to comply, as far as is reasonably practicable, with a non-binding provision of the advance care directive; and

(c) must seek, as far as is reasonably practicable, to avoid any outcome or intervention that the person who gave the advance care directive would wish to be avoided (whether such wish is expressed or implied); and

(d) must endeavour to provide the health care in a manner that is consistent with the principles set out in section 35B .

(2) Despite subsection (1) , a health practitioner who is providing, or is to provide, health care to a person who has given an advance care directive, must, in providing that health care, act in accordance with the following:

(a) any agreement reached in relation to the advance care directive at a mediation under section 35ZI ;

(b) any direction of the Tribunal given in relation to the advance care directive.

35U

Circumstances where health practitioners may not comply with advance care directive

35U Circumstances where health practitioners may not comply with advance care directive

(1) A health practitioner may refuse to comply with a provision of an advance care directive if the health practitioner believes on reasonable grounds that –

(a) the person who gave the advance care directive did not intend the provision to apply in the particular circumstances; or

(b) the provision is ambiguous or does not appear to reflect the current wishes of the person who gave the advance care directive.

(2) A health practitioner must, before refusing to comply with a provision of an advance care directive under subsection (1) , make reasonable efforts to consult with the authorised decision maker for the person who gave the advance care directive.

(3) A health practitioner who refuses to comply with a binding provision of an advance care directive must, in the clinical records of the person who gave the advance care directive, make a written record of the refusal and the reasons for the refusal.

(4) A health practitioner is not compelled to comply with a provision of an advance care directive that –

(a) specifies a particular kind of health care that the person giving the advance care directive wishes to receive; or

(b) in the opinion of the health practitioner would result in health care being provided that is futile in the circumstances; or

(c) requests a kind of health care that is not consistent with current standards of health care in this State.

(5) Despite this section, a health practitioner is to –

(a) provide health care consistent with the values and preferences expressed in the advance care directive; and

(b) act in accordance with any direction of the Tribunal given in relation to the advance care directive.

35V

Urgent health care

35V Urgent health care

A health practitioner may provide health care to a person who has given an advance care directive, despite the health practitioner not having access to that advance care directive, if the health practitioner considers that providing the health care is necessary, as a matter of urgency –

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

(b) to prevent serious damage to the person's health; or

(c) to prevent the person from suffering or continuing to suffer significant pain or distress.

35W

Conscientious objection

35W Conscientious objection

(1) Despite any other provision of this Part, a health practitioner may refuse to comply with a provision of an advance care directive if the health practitioner has a conscientious objection to complying with the provision.

(2) If a health practitioner refuses to comply with a provision of an advance care directive under subsection (1) the health practitioner –

(a) must refer the patient’s care on to another health practitioner in the same profession as the referring health practitioner; and

(b) must not, in any event, provide treatment that would prevent provisions in an advance care directive from being given effect.

Division 6

Registration of advance care directives

Division 6 Registration of advance care directives

[Division 6 Inserted by No. 15 of 2021, s. 15, Applied:21 Nov 2022]

35X

Registration of advance care directives

35X Registration of advance care directives

(1) The Tribunal may, on application, register an advance care directive.

(2) The Tribunal may, at its discretion, refuse to register an advance care directive if the advance care directive does not comply with sections 35H , 35I or 35J .

(3) An advance care directive is not invalid merely because it is not registered under this section.

(4) The Tribunal is to keep, or cause to be kept, a register of advance care directives.

(5) The register of advance care directives maintained under subsection (4) –

(a) may be kept in any form, including electronic; and

(b) is to include copies of all advance care directives that are registered with the Tribunal under this Act.

Division 7

Revocation of advance care directives

Division 7 Revocation of advance care directives

[Division 7 Inserted by No. 15 of 2021, s. 15, Applied:21 Nov 2022]

35Y

Revoking advance care directive where person has decision-making ability

35Y Revoking advance care directive where person has decision-making ability

(1) [Section 35Y Subsection (1) amended by No. 21 of 2023, s. 33, Applied:01 Sep 2024] A person giving an advance care directive may revoke the advance care directive at any time in the prescribed manner if the person has decision-making ability in respect of that decision and understands the consequences of revoking the advance care directive.

(2) On revoking an advance care directive, the person who revoked the advance care directive must, as soon as is reasonably practicable, take reasonable steps –

(a) to advise each person appointed as the person’s enduring guardian of the revocation; and

(b) to notify each other person or organisation that has been given a copy of the advance care directive of the revocation; and

(c) in the case of an advance care directive that has been registered, notify the Tribunal of the revocation.

(3) If a person gives an advance care directive, any previous advance care directive given by the person is revoked.

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Source text: opening excerpt

Sourced from Tasmanian Legislation Online (legislation.tas.gov.au), CC BY 4.0.