What it does
The Guardianship Regulation 2016 is subordinate legislation made under the Guardianship Act 1987 (NSW). Its primary function is to supply the operational machinery that the principal Act requires but does not itself contain. Part 1 contains preliminary provisions, including the commencement date of 1 September 2016 (clause 2), the repeal of the predecessor Guardianship Regulation 2010, and key definitions. The term “restricted substance” is defined by reference to Schedule 4 of the Poisons List under the Poisons and Therapeutic Goods Act 1966, while “the Act” simply means the Guardianship Act 1987. Clause 3(2) makes clear that any reference to a Form is to the versions set out in Schedule 1.
Part 2 deals with enduring guardians. Clause 4 prescribes additional classes of “eligible witness” for the purposes of the definition in section 5 of the Act: foreign lawyers under the Legal Profession Uniform Law (NSW) and certain trained and approved staff of the NSW Trustee and Guardian or Service NSW. Clauses 5, 6 and 7 prescribe Forms 1, 2 and 3 respectively for the appointment, revocation and resignation of an enduring guardian (ss 6C(1)(a), 6H(2)(b) and 6HB(2)(a) of the Act). Clause 8 prescribes a lengthy list of interstate instruments that are recognised as “interstate enduring guardians” under section 6O(5) of the Act. The list ranges from ACT enduring powers of attorney through to Western Australian instruments under the Guardianship and Administration Act 1990 (WA), including savings and transitional equivalents.
Part 3 is the most technically dense portion of the Regulation. It classifies medical and dental treatment for the purposes of Part 5 of the Act. Clause 9 declares three categories of “special medical treatment” beyond those already listed in section 33(1) of the Act: termination of pregnancy, vasectomy or tubal occlusion, and any treatment using an aversive stimulus. Clause 10 then declares a comprehensive list of “major medical treatment”. The list includes long-acting injectable hormonal substances for contraception (with an express note referencing Depo-Provera), administration of drugs of addiction (defined by reference to Schedule 8 of the Poisons List), general anaesthesia or sedation (subject to two specific exceptions), treatments to eliminate menstruation, administration of restricted substances affecting the central nervous system (subject to four detailed exceptions), treatments carrying a “substantial risk” of nine enumerated adverse outcomes, and HIV testing. Clause 11 performs the same task for dental treatment, capturing general anaesthesia, simple sedation (itself defined in subclause (2)), total tooth removal, and treatment likely to cause prolonged impairment of chewing ability.