ACTIn ForceAct
Guardianship and Management of Property Act 1991
36Assessment of likelihood of principal regaining
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36 Assessment of likelihood of principal regaining
decision-making capacity
(1) The likelihood of a principal regaining decision-making capacity
within the period mentioned in section 34 (2) (b) must be assessed by
an independent doctor, taking into account—
(a) the protected person’s medical, mental and physical condition;
and
(b) the severity of the protected person’s condition and the
prognosis for the protected person; and
(c) the current stage of treatment and care required for the protected
(d) any other circumstances relevant to the protected person; and
(e) the nature of the medical research, including the type of
treatment or care provided by the research and the timeframe for
the research.
(2) The independent doctor must state, in writing, the doctor’s belief
whether the protected person is likely to regain decision-making
capacity within the period mentioned in subsection (1), and the
reasons for the belief.
Note 1 An independent doctor must always give a statement under s (2),
regardless of whether the ACAT has made a declaration about the
decision-making capacity of a principal for an enduring power of attorney
under s 65.
Note 2 In a proceeding, a certificate by an independent doctor under s (2) stating
whether a protected person is likely to regain decision-making capacity
within the required period is evidence of that fact (see s 72D).
independent doctor, in relation to medical research, means a doctor
who is not involved in, nor connected to, the research, other than a
professional interest in the area of the research.