Northern Territory Explanatory Statements

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ADULT DECISION MAKING BILL 2012

ADULT DECISION MAKING BILL 2012
SERIAL NO. 210

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR HEALTH

EXPLANATORY STATEMENT


GENERAL OUTLINE

This Bill replaces the Adult Guardianship Act 1988.

The purpose of this Bill is to replace the Adult Guardianship Act 1988 whilst retaining the primary purpose of ensuring that there is a legal mechanism for decisions to be made on behalf of adults whose capacity to make decisions for themselves is impaired. The Bill implements the recommendations made by the WestWood Spice review as endorsed by Cabinet Decision 3895 of 8 September 2009. The Bill provides a new legal framework for adults with capacity to appoint an Alternate Decision Maker to make decisions on their behalf, if the adult’s decision making capacity becomes impaired in the future, by completing and signing a Life Management Document. The Bill has a new provision for an adult with decision making capacity to make a written Advance Care Directive outlining how the adult wishes to be cared for in the future in the event of the loss of their decision making capacity, or loss of their ability to communicate, in line with the National Framework for Advance Care Directives.

The Bill introduces a legal framework for three types of Alternate Decision Makers. An Alternate Decision Maker (Tribunal) may be appointed by the Tribunal for an adult who has impaired decision-making capacity. An Alternate Decision Maker (Substitute) who may be appointed by an adult whilst the adult has capacity through a written Life Management Document. An Alternate Decision Maker (Health) is a customary carer or close friend of the adult with impaired capacity who is authorised under the Bill to make health care decisions under certain circumstances.

The Bill defines a set of decision-making principles that guide the Alternate Decision Maker when exercising their authority, which include acting in the best interests of the adult, taking into account the adult’s wishes and views as far as they can be ascertained, and in exercising authority preserving the adult’s freedom of decision and action to the greatest extent practicable.

The Bill provides for the establishment of a Tribunal for Adult Decision Making which has jurisdiction to deal with and determine all matters coming before it under the Bill and its decisions may be reviewed by the Supreme Court. The Bill establishes an Independent Commissioner for Adult Decision Making and Advocacy. The Commissioner has a number of functions including advocating on behalf of adults with impaired decision making capacity, providing advice and support for Alternate Decision Makers, and acting as an Alternate Decision Maker when no other suitable Alternate Decision Maker is available.

The Bill has a new provision which authorises the Tribunal to appoint an Alternate Decision Maker for a child with impaired decision-making capacity who has attained the age of 17 years and six months, and the order made will come into effect on the child’s 18th birthday allowing for a smooth transition of decision making from childhood into adulthood.

The Bill provides a legal framework for the appointment of either the Public Trustee or a Licensed Trustee Company as an Alternate Decision Maker with Financial Powers to manage the estate of an adult with impaired decision-making capacity. This appointment may be made by the Tribunal or by adult with capacity under a Life Management Document.

The Bill applies Part IIAA of the Northern Territory Criminal Code, which defines the circumstances in which criminal responsibility is ascribed to individuals and/or corporations and establishes principles relating to the burden and standard of proof that will apply when assessing criminal responsibility.


NOTES ON CLAUSES

Chapter 1 Introduction

Part 1.1 Preliminary Matters

Clause 1 Short Title

This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Adult Decision Making Act 2012.

Clause 2 Commencement

This is a formal clause that provides that the Act commences on the date fixed by the Administrator by Gazette notice.

Clause 3 Act binds Crown

This is a formal clause that provides that the Act binds the Crown to the extent permitted by the legislative power of the Legislative Assembly.

Clause 4 Application of Criminal Code

This is a formal clause that provides that Part IIAA of the Criminal Code applies to an offence against this Act. Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof.

Part 1.2 What this Act is about

Clause 5 Overview

This clause explains that the Bill provides for a scheme to enable decisions to be made about life management matters for adults whose capacity to make those decisions is impaired. Those decisions may be made by the adult himself or herself in advance through a Life Management Document; or by an alternate decision maker appointed by the Tribunal or an alternate decision maker authorised under the Bill, or indeed by the Tribunal is which established under this Bill.

Clause 6 Life management documents and advance care directives

This Bill allows an adult to make a document which is called a life management document. A life management document may be used to appoint an Alternate Decision Maker (substitute) and also to provide written instructions (called advance care directives), about how the adult wants to be cared for if he or she loses decision-making capacity in the future.

Clause 7 Alternate decision makers

This Bill allows for 3 types of alternate decision makers (called ADMs). An ADM (tribunal) is a person appointed by the Tribunal for an adult who has impaired decision-making capacity. An ADM (substitute) is a person appointed by an adult, by making a life management document while he or she still has capacity, to act for the adult if his or her decision-making capacity becomes impaired. An ADM (health) is a close friend or customary carer of an adult who has impaired decision-making capacity, who is authorised under this Bill to make decisions about health care for the adult in certain circumstances.

Clause 8 Consent to health care action

This Bill allows decisions to be made about giving or refusing to give consent for health care action in respect of adults whose capacity to make those decisions is impaired.

Clause 9 Decision-making principles

This Bill outlines a number of important decision-making principles which are the basis on which all decisions under this Bill about an adult must be made and are an important protection for the adult who has impaired capacity.

Clause 10 Impaired decision-making capacity

This Bill allows other people to exercise authority for a matter for an adult only if he or she has impaired decision-making capacity for that matter. Under this Bill an adult is presumed to have decision-making capacity unless the contrary is shown. This Bill also recognises that an adult may have capacity to make decisions about some aspects of their life while having impaired capacity in relation to others, and that an adult's level of capacity may change over time.

Clause 11 Commissioner, Tribunal and Public Trustee

This Bill establishes an independent Commissioner for Adult Decision Making and Advocacy, a Tribunal for Adult Decision Making and also confers powers and functions on the Public Trustee in respect of financial matters.

Clause 12 Recognition of orders, appointment etc. from other jurisdictions

This clause provides for the recognition in the Northern Territory of orders made in other jurisdictions that have an effect similar to that of an ADM order; and documents made by persons under laws of other jurisdictions that have an effect similar to that of a life management document.

Part 1.3 Interpretation

Clause 13 Definitions

This is a formal clause which provides for the clear definition of terms used in the body of this Bill. The definitions are numerous and listed in alphabetical order.

Clause 14 Meaning of life management matter

Under this Bill, a life management matter for an adult, means a matter relating to his or her care or welfare (including health care), or property or financial affairs. Examples of life management matters include day-to-day living matters, such as diet and dress; accommodation; health care; employment; education and training; banking; property (including real estate) ownership; and the management of assets. A life management matter does not include an excluded matter which is described in the clause 15.

Clause 15 Meaning of excluded matter

The Bill does not allow decisions to be made by an ADM for an excluded matter. There are a number of matters that been identified as excluded matters and include exercising the adult's right to vote, consenting to the adoption of a child of the adult; consenting to the marriage, or dissolution of the marriage, of the adult; making or revoking a will, power of attorney or a life management matter.

Clause 16 Meaning of reasonably believes

This clause defines ‘reasonably believes’ as when someone personally has grounds at a particular time for believing something, and the grounds, when judged objectively, are reasonable. The reasonableness of the belief is not affected by the grounds subsequently being found to be false or non-existent. A belief held by a health care provider about a health care matter is not reasonable unless it is consistent with the generally accepted standards of good professional practice of members of the provider's profession.

Clause 17 Meaning of restricted health care action

The Bill does not allow an ADM to consent to a health care matter that is classified as a restricted health care action. There are a number of restricted health care actions and these include sterilisation of the adult, termination of a pregnancy of the adult and participation in medical research. Consent to a restricted health care action can only be given under direction from a Court or Tribunal.

Clause 18 When advance care directive constitutes consent decision

This Bill allows for an Advance Care Directive to be made by an adult, when an adult has capacity, outlining their wishes for future health care treatment. The advance care directive will constitute a consent decision for health care action if the directive is an express statement of the adult's consent or refusal of consent for the health care action. For example, a statement that "I do not want to be given a blood transfusion in any circumstances" is a clear statement refusing consent for a blood transfusion.

The Advance Care Directive will also constitute a consent decision for health care action if, on a reasonable interpretation, it is reasonably clear from the directive that the adult would or would not want the health care action to be taken in the circumstances that exist at the time it is proposed to take the action. For example, a statement that "If I have a terminal illness and am going to die soon, I do not want to be given treatment just to keep me alive for a little bit longer – just keep me pain free" may constitute consent for a terminally ill person to be given pain relief and for other treatment to be discontinued.

Part 1.4 Important concepts

Clause 19 Decision-making principles

The Bill outlines in detail a number of decision-making principles that must be used when any authority is exercised under this Bill in relation to an adult. These principles include that the adult's best interests must be the paramount concern, the adult's views and wishes must, as far as it is practicable to do so, be sought, acknowledged and taken into account; and the adult's freedom of decision-making and action must be preserved to the greatest extent reasonably practicable.

Clause 20 Decision-making capacity and impaired decision-making capacity

This clause defines in detail when an adult has decision making capacity and states that an adult is presumed to have decision-making capacity for a matter until the contrary is shown. Impaired decision making is also defined in this clause and included in the definition is that the cause of the impairment is immaterial. It is noted as part of this definition that an adult does not have impaired decision-making capacity for a matter only because the may engage in certain practices including having unconventional behaviour or making decisions with which other people do not agree; or is or has been dependent on, alcohol or drugs, or has a particular religious, political or moral opinion.

Chapter 2 Life management documents and advance care directives

Clause 21 Making a life management document

This Bill allows for an adult with full legal capacity to make a written statement called a life management document. A life management document can be used to appoint an Alternate Decision Maker (substitute) and may also be used to give instructions about how the adult wants to be cared for if he or she loses decision-making capacity and this is called an Advance Care Directive.

Clause 22 Formal requirements for life management document

This clause describes the formal requirements for a life management document. It must be in writing and in the form that will prescribed by regulation. The life management document must be signed by a medical practitioner to indicate that in the practitioner's opinion the maker's capacity to understand the nature and effect of the life management document is not impaired. The life management document must be signed by the maker in the presence of 2 witnesses who must be present at the same time, and one of those witnesses may include the medical practitioner who has attested to the adult’s capacity. If the life management document intends to appoint an ADM (substitute), the life management document must be signed by the intended ADM (substitute), to indicate his or her consent.

Clause 23 Effect of life management document

This clause indicates that the powers of an ADM (substitute) appointed under a life management document are outlined in Part 3.2 of this Bill, and that an advance care directive made in a life management document has effect as provided in clauses 19(2) and 75(2)(b)(i) and Chapter 4 of this Bill.

Clause 24 Tribunal may allow non-compliance with advance care directive if compliance wholly unreasonable

This clause allows the Tribunal to make a direction about a matter written in an advance care directive; ONLY if the Tribunal is satisfied that there is no reasonable possibility the maker would have intended the directive to apply in the present circumstances; or compliance with the directive is, for all practical purposes impossible; or the desirability of giving effect to the directive is outweighed by the unreasonably onerous burden that doing so would impose on another person; or compliance with the directive would be so wholly unreasonable that it is justifiable to override the maker's wishes.

Clause 25 Duration of life management document

This clause provides that a life management document comes into force when it is made. If the life management document is expressed to be for a limited period then it will expire when that limited period ends. Otherwise it will remain in force unless revoked by the maker or the Tribunal or the maker dies.

Clause 26 Amendment or revocation by maker

This clause allows that the maker of a life management document may amend or revoke the document at any time if he or she has will-making capacity.

Clause 27 Amendment by Tribunal if ADM (substitute) appointed

This clause gives power to the Tribunal to terminate the appointment of an ADM (substitute) made under a life management document, only if the maker no longer has full legal capacity and only in certain circumstances. Examples of these circumstances may include if the ADM themselves lost decision-making capacity; or in the case of the maker and ADM getting divorced.

Clause 28 Revocation by Tribunal if made under duress

This clause empowers the Tribunal to revoke a life management document if satisfied that, in making the life management document, the maker was acting under duress or otherwise not voluntarily.



Clause 29 Declarations about validity, capacity etc.

This clause allows the Tribunal to make declarations about a life management document. The declarations that the Tribunal may make include declaring whether a life management document is or is not valid and if the maker of a life management document has impaired decision-making capacity for a matter;

Chapter 3 Alternate decision makers

Part 3.1 ADM (tribunal)

Division 1 Appointment of ADM (tribunal)

Clause 30 When Tribunal may appoint ADM

This clause states that the Tribunal may appoint an alternate decision maker for a life management matter for an adult, if the tribunal is satisfied that the adult either has impaired decision-making capacity for a matter; or the adult is likely to develop impaired decision-making capacity for the matter in the reasonably foreseeable future; and the adult is in need of an ADM (tribunal) for the matter. Examples of the adult developing impaired decision making capacity would include an adult who may currently have decision-making capacity but suffer from an illness such as bipolar disorder that impairs his or her decision-making capacity from time to time. Or an adult may currently have decision-making capacity but suffer from a deteriorating condition, such as dementia, that is likely to result in his or her decision-making capacity becoming impaired.

Clause 31 Appointment in advance for child

This clause provides that the Tribunal may make an ADM order for a child who is under 18 when the child has reached the age of 17½ to come into force when the child turns 18 years. The Tribunal must be satisfied that there is a reasonable likelihood that, when the child turns 18, that the child will either have impaired decision-making capacity for a matter or the child is likely to develop impaired decision-making capacity for the matter in the reasonably foreseeable future; and the child will be in need of an ADM (tribunal) for the matter.

Clause 32 Who may be appointed

This clause specifies who the Tribunal may appoint to be an Alternate Decision Maker (tribunal) to make decisions for an adult with impaired capacity, in respect of a life matter or a range of life matters for the adult. The Tribunal may appoint an eligible individual (see clause 34), the Commissioner and if the matter relates to the adult's property and financial affairs – the Public Trustee. The Tribunal cannot appoint the Commissioner or the Public Trustee unless there is no other suitable person available for appointment; or there are special circumstances and the Commissioner or Public Trustee agrees to the appointment.

Clause 33 Appointment options

This clause outlines the various types of orders the Tribunal could make when appointing an Alternate Decision Maker (tribunal). The Tribunal may appoint one ADM, or two or more ADMs, for a matter or matters for an adult, and they may be appointed jointly, severally or jointly and severally. The Tribunal may also appoint an ADM (tribunal) for one matter, two or more matters or all matters. An ADM (tribunal) may be appointed with authority to act at all times or only in stated circumstances.

Clause 34 Eligibility for appointment

This clause outlines the criteria for eligibility of an individual for appointment as an ADM (tribunal) for an adult. The individual must be at least 18 years of age and consents to the appointment and the Tribunal after taking into account a number of prescribed matters, must be satisfied that the individual is suitable to be an ADM for the adult.

Clause 35 Notification of adult before making ADM order

This clause stipulates that the Tribunal must not make an ADM order for an adult unless satisfied that the adult was given notice of the application; and an adequate opportunity to provide the Tribunal with information relevant to the application.

Clause 36 Time limit for making an ADM order

This clause provides that if the Tribunal receives a properly completed application and supporting documentation then the Tribunal is required to deal with and determine the application within 6 weeks after the application is received.






Division 2 Authority of ADM (tribunal)

Clause 37 Authority of ADM (tribunal)

This clause provides authority to an ADM (tribunal) appointed for a matter to anything in relation to that matter that the represented adult could lawfully do if he or she had full legal capacity. However, the ADM may only exercise that authority only when the represented adult has impaired decision-making capacity for the matter, and the ADM's authority is also subject to the terms of the ADM order made by the Tribunal.

Clause 38 Restrictions on authority and requirements

This clause permits the Tribunal when the Tribunal is making an ADM order, and the Tribunal considers it to be appropriate, to impose restrictions on the ADM's authority.

Clause 39 Exercise of authority by ADM (tribunal)

This clause stipulates how an ADM (tribunal) may exercise their authority. This includes that an ADM (tribunal) may do all things necessary to be done for the exercise of the ADM's authority, and in exercising that authority, the ADM must act in accordance with the decision-making principles and comply with the ADM order and any direction made by the Tribunal. An ADM (Tribunal) must act honestly and with care, skill and diligence.

Clause 40 Effect of exercise of authority by ADM (tribunal)

This clause specifies that any act done or omission made by an ADM (tribunal) in the exercise of the ADM's authority has effect as if it were done or made by the represented adult and he or she had full legal capacity.

Clause 41 No authority for restricted health care action

This clause precludes an ADM (tribunal) cannot make a consent decision about restricted health care action for the represented adult.

Clause 42 Right to documents and information

This clause recognises that an ADM (tribunal) has the same right to documents and information relevant to the exercise of the ADM's authority in relation to a matter as the represented adult would have if he or she had full legal capacity. The ADM has a right to documents and information of the represented adult that are relevant to the exercise of the ADM's authority in relation to that matter. A person who has custody or control of a relevant document or information must give it to the ADM if requested by the ADM to do so, unless the information holder has a reasonable excuse not to do so. If a person does not comply with the request, an application can be made by the ADM to the Tribunal for an order that the person comply and there is a penalty for non-compliance with a Tribunal order.

Clause 43 Information and things may be given to ADM (tribunal)

This clause permits a person who is required by law to give information or a thing to a represented adult to give the information or thing to the authorised ADM (tribunal) instead of giving it to the represented adult.

Clause 44 Record keeping and reporting requirements

This clause requires that an ADM (tribunal) must keep reasonable records in relation to the exercise of the ADM's authority and comply with any record keeping and reporting requirements prescribed by regulation under this Bill.

Clause 45 Property to be managed as if trust property

This clause stipulates that an ADM (tribunal) who has financial management powers must deal with the represented adult's property as if it were trust property held by the ADM on trust for the represented adult; and in dealing with the property, is subject to the duties, obligations and limitations that apply under any law of the Territory to a trustee dealing with trust property.

Clause 46 Gifts

This clause allows an ADM (tribunal) who has financial management powers to make a gift or donation from the represented adult's property if the gift or donation is of a kind the represented adult made when he or she had decision–making capacity for the matter; or might reasonably be expected to make; and the value of the gift or donation is reasonable in the circumstances.

Clause 47 Maintenance of dependants

This clause provides that an ADM (tribunal) who has financial management powers may provide from the represented adult's property for the needs of a dependant of the represented adult under appropriate circumstances outlined in this clause, and otherwise under the direction of the Tribunal.

Clause 48 Asset management planning

This clause requires an ADM (tribunal) who has financial management powers to prepare an asset management plan in accordance with any requirements prescribed by regulation, and if an asset management plan is included in an ADM order made by the Tribunal.

Clause 49 Reimbursement of expenses

This clause provides that an ADM (tribunal) is entitled to reimbursement from the represented adult’s estate for reasonable costs incurred in acting as ADM. These costs are required to be approved by the Tribunal.

Clause 50 Remuneration for professional appointee

This clause states that an ADM (tribunal) who is a professional ADM is entitled to reasonable remuneration from the represented adult as approved by the Tribunal. This clause defines a professional ADM as a person who carries on a business which includes the provision of services as an ADM, the Commissioner and the Public Trustee.

Clause 51 Reimbursement and remuneration for other services provided by ADM to represented adult

This clause recognises that there may be occasions when a person who is an ADM also provides other services to the represented adult. The Tribunal may in such cases give approval for reimbursement or remuneration to be made to the ADM if it is reasonable in the circumstances for the person who is the ADM to also be providing the other services, and the amount to be paid is reasonable.

Clause 52 ADM to hand over when ceasing to be ADM

This clause specifies that when person ceases to be an ADM (tribunal) the person must take all reasonable steps to provide for the smooth transfer of decision making authority to another ADM or to the represented adult who has regained their decision making capacity. If the represented adult has died then the ADM must take all reasonable steps for the smooth transfer of the adult's estate to the adult's executor.


Clause 53 ADM unaware of entitlement to act

This clause stipulates that if an ADM (tribunal) exercises their authority for a matter in good faith and reasonably believing that circumstance exist that entitle the ADM to do so; but in fact those circumstance do not exist, then anything done by the ADM in the purported exercise of the authority has effect, and the ADM is liable to the same extent, as if the circumstances had existed. Alternatively, if an ADM (tribunal) has authority for a matter; and circumstances exist in which the ADM is entitled to exercise that authority; but the ADM is unaware, and could not reasonably have been expected to be aware, of the existence of those circumstances; then the ADM is not liable for any failure to exercise the authority.

Division 3 Supervision of ADM (tribunal)

Clause 54 Commissioner or Public Trustee may give advice

This clause states that the Commissioner or Public Trustee may give a written opinion or advice to an ADM (tribunal) about the exercise of the ADM's authority, and an ADM (tribunal) who acts in accordance with an opinion or advice given under subclause (1) is taken to have acted properly.

Clause 55 Tribunal may give directions

This clause provides that the Tribunal may give directions to an ADM (tribunal) about the exercise of the ADM's authority, at any time on its own initiative; or on application by the represented adult; or on application by an interested person for the represented adult.

Clause 56 Declarations about authority, effect etc.

This clause allows the Tribunal to make a declaration about the scope of the authority of an ADM (tribunal), when the authority of an ADM (tribunal) for a matter has commenced or has ceased; whether a represented adult has impaired decision-making capacity for a matter and any other matter relating to the effect of an ADM order. The Tribunal may make a declaration at any time on its own initiative; or on application by the represented adult or an interested person for the represented adult.

Clause 57 Tribunal may give directions to former ADM (tribunal)

This clause provides for the Tribunal to give directions about the transfer of decision making authority when a person ceases to be an ADM (tribunal) for any reason other than the ADM's death. If the person contravenes a direction of the Tribunal the Tribunal may impose a financial penalty.

Clause 58 Variation of ADM order

This clause allows the Tribunal to vary an ADM order as the Tribunal considers appropriate and the Tribunal may vary an ADM order at any time on its own initiative; or on application by the represented adult; or an interested person for the represented adult.

Division 4 Review of ADM orders

Clause 59 ADM order to be reviewed

This clause requires that an ADM order must be reviewed by the Tribunal at least once every 3 years, or more frequently in accordance with its terms. The Tribunal may review an ADM order at any time on its own initiative; or on application by the represented adult; or an interested person for the represented adult.

Clause 60 Matters to be considered on review

This clause requires that when reviewing an ADM order the Tribunal must consider a number of matters which are outlined in the clause including whether any change should be made in the persons who are appointed as an ADM under the order and whether any changes should be made to the other terms of the order.

Clause 61 Outcome of review

This clause allows the Tribunal on completion of a review of an ADM order to revoke the ADM order or confirm the ADM order for a further period or vary the ADM order or revoke the ADM order and make another in its place.

Division 5 Duration of order and appointment

Clause 62 Duration of ADM order

This clause specifies that an ADM order comes into force when it is made or at a later time specified in it; and remains in force if the order is expressed to be for a limited period and that period ends. The ADM order also ceases to be in force if the order is revoked by the Tribunal or upon the death of the represented adult. If an ADM order is made under clause 31 for a child, the order does not come into force until the child turns 18.

Clause 63 When appointment of ADM (tribunal) ends

This clause stipulates that a person ceases to be an ADM (tribunal) if the person dies, or resigns by giving written notice to the Tribunal or if the appointment is expressed to be for a limited period and that period ends. A person also ceases to be an ADM (tribunal) if the ADM order appointing the person ceases to be in force; or is varied to terminate the person's appointment.

Clause 64 Notification requirements

This clause requires that in the event of the death of a represented adult, an ADM (tribunal) must notify the Tribunal of the death as soon as practicable after becoming aware of it. If an ADM (tribunal) dies, any other ADM for the represented adult must notify the Tribunal of the death as soon as practicable after becoming aware of it. If the Tribunal becomes aware of circumstances that cause the Commissioner to become an ADM then the Tribunal must notify the Commissioner as soon as practicable after becoming aware of those circumstances.

Clause 65 Effect of cessation of appointment if joint appointees

This clause applies if a person ceases to be an ADM (tribunal) for a matter and the person was jointly appointed as an ADM (tribunal) for the matter and if there were two jointly appointed ADMs (tribunal) for the matter, the remaining person will become the sole ADM (tribunal) for the matter.

Clause 66 Effect of cessation of appointment if sole appointee

This clause specifies that if a person ceases to be an ADM (tribunal) for a matter and the person was the sole ADM (tribunal) for the matter then the Commissioner automatically becomes the ADM (tribunal) for the matter.

Clause 67 ADM (tribunal) temporarily unable to act

This clause specifies that if an ADM (tribunal) for a matter becomes temporarily unable to act; and there is no other ADM (tribunal) with authority for the matter, they must notify the Tribunal as soon as practicable. The Commissioner then automatically becomes the ADM (tribunal) for the matter in place of the person and the Commissioner remains the ADM until the person is again able to act.

Clause 68 Tribunal to update ADM order

This clause permits the Tribunal to amend an ADM order if a person ceases to be an ADM (tribunal) but the ADM order remains in force. The Tribunal may, on application, amend the ADM order to reflect the fact that the person has ceased to be an ADM (tribunal). An application for amendment may be made by the represented adult the former ADM (tribunal); or an interested person for the represented adult.

Part 3.2 ADM (substitute)

Division 1 Appointing an ADM (substitute)


Clause 69 Appointing an ADM (substitute)

This clause states than an adult with capacity may appoint a person to be an alternate decision maker (substitute) for a life management matter for the adult, in a life management document. The adult may appoint as an ADM (substitute) an individual who is at least 18 years of age, a licensed trustee company or the Commissioner. The Public Trustee may be approved only in respect of financial matters. It is noted that the adult cannot appoint a person as an ADM (substitute) unless that person consents to the appointment in writing in the life management.

Clause 70 Appointment in advance of a child

This clause allows an adult to appoint an individual who is under 18 to become an ADM (substitute) when the individual turns 18. The appointment will have no effect until the individual turns 18; and after turning 18, the individual signs the life management document accepting the appointment.

Clause 71 Appointment options for matters

This clause recognizes that an ADM (substitute) may be appointed for one matter, 2 or more matters or all matters. If a life management document appoints an ADM but does not identify the matter or matters for which the ADM is appointed, the ADM is therefore appointed for all life management matters.

Clause 72 Appointment options for ADMs

This clause recognizes that an ADM (substitute) may be appointed with authority to act at all times; or only in stated circumstances; or at all times except in stated circumstances. An adult may appoint one ADM, or 2 or more ADMs, for a matter or matters. If the adult appoints 2 or more ADMs for a matter, they may be appointed jointly, severally or jointly and severally. Two or more ADMs (substitute) for a matter are appointed jointly unless the adult provides otherwise.

Division 2 Authority of ADM (substitute)

Clause 73 Authority of ADM (substitute)

This clause stipulates that an ADM (substitute) for a matter is authorised to do anything in relation to the matter that the represented adult could lawfully do if he or she had full legal capacity. However, the ADM may exercise that authority only when the represented adult has impaired decision-making capacity for the matter and the ADM's authority is subject to the terms of the life management document.

Clause 74 Restrictions on authority, requirements and
directions

This clause expresses that the represented adult in making a life management document, may impose restrictions on the extent of the ADM's (substitute) authority and also impose requirements to be complied with by the ADM in relation to the exercise of the authority and give specific directions.

Clause 75 Exercise of authority by ADM (substitute)

This clause stipulates that an ADM (substitute) may do all things necessary for the exercise of the ADM's authority. However, in exercising that authority, the ADM must act in accordance with a number of matters outlined in this clause including the decision-making principles, the life management document, and any direction that may be given by the Tribunal.

Clause 76 Effect of exercise of authority by ADM (substitute)

This clause states an act done or omission made by an ADM (substitute) in the exercise of the ADM's authority has effect as if it were done or made by the represented adult and he or she had full legal capacity.



Clause 77 Authority for restricted health care action

This clause allows an ADM (substitute) to make a consent decision for a restricted health care action for the represented adult only if the life management document expressly authorises the ADM to make a decision about that particular kind of restricted health care action.

Clause 78 Right to documents and information

This clause recognises that an ADM (substitute) has the same right to documents and information relevant to the exercise of the ADM's authority in relation to a matter as the represented adult would have if he or she had full legal capacity. An ADM (substitute) has a right to documents and information of the represented adult that are relevant to the exercise of the ADM's authority in relation to that matter. A person who has custody or control of a relevant document or information must give it to the ADM if requested by the ADM to do so, unless the person has a reasonable excuse not to do so. If a person does not comply with the request an application can be made by the ADM (substitute) to the Tribunal for an order that the person shall comply and there is a penalty for non-compliance with a Tribunal order.

Clause 79 Information and things may be given to ADM


This clause permits a person who is required by law to give information or a thing to a represented adult, then that person may give the information or thing to the authorised ADM (substitute) instead of giving it to the represented adult.

Clause 80 Record keeping and reporting requirements

This clause requires ADMs (substitute) to keep reasonable records relevant to their areas of authority and in accordance with regulations. These regulations may include requirements for the preparation of annual or other reports; auditing or other verification of records and reports and also specify who may be given copies of, or access to, records or reports. The regulations may also include provision for the examination of records or reports by the Tribunal, Commissioner, Public Trustee or other persons.

Clause 81 Property to be managed as if trust property

This clause requires that an ADM (substitute) who has financial management powers must deal with the represented adult's property as if it were trust property held by the ADM on trust for the represented adult. However, the ADM may deal with property other than in accordance with this requirement if permitted to do so under this Bill by the represented adult in the Life Management Document, or the Tribunal. This clause does not prevent the continuation of joint ownership of property by the represented adult and the ADM (whether as joint tenants or tenants in common) if the joint ownership commenced before the ADM was appointed; or after the appointment but while the represented adult had decision-making capacity for the matter.

Clause 82 Gifts

This clause allows an ADM (substitute) who has financial management powers to make a gift or donation from the represented adult's property if the gift or donation is of a kind the represented adult made when he or she had decision–making capacity or might reasonably be expected to make; and the value of the gift or donation is reasonable in the circumstances. However, the represented adult may, in the Life Management Document, restrict the ADM's authority to make gifts or donations; or authorise the ADM to make a gift or donation not otherwise permitted by this clause. Further, the Tribunal may, authorise the ADM to make a gift or donation not otherwise permitted by this clause.

However, an ADM(substitute) cannot make a gift or donation from the represented adult's property to the ADM(substitute) unless specifically authorised to do so under the life management document or by an order of the Tribunal.

Clause 83 Maintenance of dependants

This clause authorises an ADM (substitute) who has financial management powers to provide from the represented adult's property for the needs of a dependant of the represented adult if the provision is of a kind the represented adult made when he or she had decision–making capacity for the matter; or might reasonably be expected to make; and the value of the provision is reasonable in the circumstances. However, the represented adult may, in the Life Management Document restrict the ADM's authority to provide for dependants or authorise the ADM to make provision for a dependant that is not otherwise permitted by this clause. The Tribunal may, by direction under clause 90 (2)(c) authorise the ADM to make provision for a dependant that is not otherwise permitted by this clause.


Clause 84 Reimbursement of expenses

This clause allows for an ADM (substitute) to receive reimbursement from the represented adult for reasonable costs incurred in acting as ADM as authorised in the Life Management Document; or by the Tribunal. However, the Tribunal cannot approve reimbursement of expenses contrary to any express provision in the Life Management Document. Clause 86 deals with reimbursement of expenses incurred in providing other services.

Clause 85 Remuneration for professional appointee

This clause defines a professional ADM (substitute) as a person who carries on a business including, the provision of services as an ADM; the Commissioner; or the Public Trustee. A professional ADM may receive reasonable remuneration from the represented adult as authorised in the Life Management Document; or as approved by the Tribunal. However, the Tribunal cannot approve payment of remuneration contrary to any express provision in a Life Management Document. This clause does not affect any right of the Public Trustee or a trustee company to remuneration or commission under another Act or the Corporations Act 2001.


Clause 86 Reimbursement and remuneration for other services provided by ADM to represented adult

This clause deals with an ADM (substitute) who also provides other services (including acting as a carer) to the represented adult. The ADM is not entitled to reimbursement for costs incurred in providing the other services unless this is written by the represented adult in the Life Management Document; or by a direction made by the Tribunal. The Tribunal must not give approval unless satisfied that it is reasonable in the circumstances for the person who is the ADM to also be providing the other services; and the amount to be paid is reasonable.

Clause 87 ADM to hand over when ceasing to be ADM

This clause states that a person who ceases to be an ADM (substitute) for an adult must take all reasonable steps to provide for the smooth transfer of decision making authority to another ADM or to the represented adult (as appropriate); or if the represented adult has died – the smooth transfer of the adult's estate to the adult's executor.


Clause 88 ADM unaware of entitlement to act

This clause stipulates that if an ADM (substitute) purports to exercise authority for a matter in good faith and reasonably believing that circumstances exist that entitle the ADM to do so; but those circumstance do not in fact exist; anything done by the ADM in the purported exercise of the authority has effect, and the ADM is liable to the same extent, as if the circumstances had existed. If an ADM (substitute) has authority for a matter; and circumstances exist in which the ADM is entitled to that authority; but the ADM is unaware, and could not reasonably have been expected to be aware, of the existence of those circumstances, the ADM is not liable for any failure to exercise the authority.

Division 3 Supervision of ADM (substitute) and jurisdiction of Tribunal

Clause 89 Commissioner or Public Trustee may give advice

This clause authorises that the Commissioner or Public Trustee may give a written opinion or advice to an ADM (substitute) about the exercise of the ADM's authority. In this situation, an ADM (substitute) who acts in accordance with an opinion or advice given under this clause is taken to have acted properly and in accordance with this Bill. This does not apply if, in obtaining the opinion or advice, the ADM acted fraudulently or wilfully misrepresented or concealed material information.

Clause 90 Tribunal may give directions

This clause authorises the Tribunal to give directions to an ADM (substitute) about the exercise of the ADM's authority. These may include how the ADM may, or must, or must not, exercise their authority, or if joint ADMs are unable to reach a unanimous decision to facilitate the resolution of their differences. The Tribunal must not give a direction requiring or permitting the ADM to act contrary to an express provision of a Life Management Document. The Tribunal may give directions about the exercise of the ADM's authority generally or for a particular circumstance. The Tribunal may also give directions on application by the represented adult; or an interested person for the represented adult.

Clause 91 Declarations about validity, capacity etc.

This clause authorises the Tribunal to make a declaration about whether a Life Management Document that appoints an ADM (substitute) is or is not valid; whether a represented adult has impaired decision-making capacity for a matter; the scope of the authority of an ADM (substitute); whether the authority of an ADM (substitute) for a matter has commenced or has ceased or any other matter relating to the validity or effect of a Life Management Document that appoints an ADM (substitute). The Tribunal may make a declaration on application by the represented adult; or an interested person for the represented adult.

Clause 92 Tribunal may give directions to former ADM (substitute)

This clause deals with a person who ceases to be an ADM (substitute) other than as a result of the ADM's death. The Tribunal may give the person any directions the Tribunal considers appropriate to provide for the smooth transfer of decision making authority from the person to another ADM or to the represented adult (as appropriate); or if the represented adult has died – the smooth transfer of the adult's estate to the adult's executor. If the person engages in conduct that results in a contravention of the direction, the Tribunal has the power to impose a financial penalty on the person. The Tribunal may give directions on application by any of the following: the represented adult, an interested person for the represented adult; the former ADM; or if the represented adult has died, the adult's executor.

Division 4 Duration of appointment

Clause 93 When appointment of ADM (substitute) ends

This clause stipulates that a person ceases to be an ADM (substitute) if any of the following occurs: the person dies; the person resigns by giving written notice to the represented adult if he or she has full legal capacity, or otherwise, the Tribunal; if the appointment is expressed to be for a limited period and that period ends; the Life Management Document by which the person was appointed ceases to be in force or is amended so as to terminate the person's appointment.

Clause 94 Effect of cessation of appointment if jointly appointed

This clause applies when a person ceases to be an ADM and the person was jointly appointed as an ADM (substitute). If there were 2 jointly appointed ADMs for the matter, the remaining person becomes the sole ADM (substitute) for the matter. If there were 3 or more jointly appointed ADMs for the matter, the remaining 2 or more of them continue as jointly appointed ADMs for the matter.

Clause 95 Tribunal to endorse cessation of ADM (substitute)

This clause applies if a person ceases to be an ADM (substitute) but the Life Management Document remains in force; and the represented adult no longer has will-making capacity. The Tribunal must, on application, endorse on the Life Management Document: the fact that the person has ceased to be an ADM (substitute); and the effect, if applicable, if the person was jointly appointed as an ADM. An application for endorsement may be made by the represented adult; or the former ADM (substitute); or an interested person for the represented adult.

Part 3.3 ADM (health)

Division 1 Who is an ADM (health)

Clause 96 Meaning of close friend and customary carer

This clause defines relationships for Clause 97. A close friend is an individual who has a close personal relationship with the adult and a genuine personal interest in the adult's care and welfare. It is immaterial whether the individual is a relative of the adult – this means that a relative may be a “close friend” but also must have a close personal relationship and genuine interest in the person’s welfare. An individual may be a close friend of an adult even if the individual does not personally provide regular care and assistance to the adult. However, an individual is not a close friend of an adult if the individual's relationship with the adult and interest in the adult's care and welfare arises from the individual being a professional support worker for the adult. A professional support worker means a person who, in the practice of the person's profession or the ordinary course of the person's business, provides of day-to-day care and assistance to people. For an adult who is an Aboriginal person or Torres Strait Islander, an individual is a customary carer of the adult if, according to the customs and traditions of the adult's community or group, the individual is someone who would ordinarily make decisions about health care matters for the adult.

Clause 97 Who is an ADM (health)

This clause specifies that each of the following persons is an ADM (health) for an adult: a close friend of the adult; a customary carer of the adult. However, a person is not an ADM (health) for an adult if: the person is under 18; or the person does not want to be an ADM (health) for the adult; or the adult has made an Advance Care Directive as mentioned in clause 21(3) stating that the person is not an ADM (health) for the adult.

Division 2 Authority of ADM (health)

Clause 98 Authority of ADM (health)

If an adult has impaired capacity for a health care action, an ADM (health) for the adult is authorised to make a consent decision about the health care action. A health care provider is able to rely on a consent decision given by an ADM about health care action only if the health care provider reasonably believes that the represented adult has impaired capacity for that health care action. Therefore an ADM (health) will only be able to exercise his or her authority to make consent decisions if the health care provider believes the represented adult has impaired capacity. An ADM (health) does not have authority to do anything other than make consent decisions about health care action.

Clause 99 Exercise of authority by ADM (health)

This clause defines the parameters of the exercise of the authority of an ADM (health). In exercising that authority, the ADM must: act in accordance with the decision-making principles; and comply with, any advance care directives made by the represented adult that do not constitute consent decisions, any direction or order of the Tribunal; and this Bill. The ADM must cooperate with any other ADMs for the represented adult to enable them to properly exercise their authority; and act honestly and with care, skill and diligence.

Clause 100 Effect of exercise of authority by ADM (health)

This clause confirms that an act done or omission made by an ADM (health) has the same effect as if it were done or made by the represented adult and he or she had full legal capacity.

Clause 101 No authority for restricted health care action

This clause limits the authority of the ADM (health). An ADM (health) cannot consent to restricted health care action for the represented adult.


Clause 102 Right to documents and information

This clause provides the ADM (health) with access to documents and information relevant to making a consent decision about health care action for the represented adult. The sub-clauses require that persons with custody or control of the information (information holders) to provide the requested information to the ADM.

Protection is provided to information holders that release information in good faith under this clause. The release of information in good faith does not breach any professional code of conduct and persons releasing information are not civilly or criminally liable.

The Tribunal may order the information holder to release the documents or information upon application from the ADM. The information holder may incur penalties for failing to comply with an order from the Tribunal.

Clause 103 Information and things may be given to ADM (health)

This clause applies in circumstances where a person is required by another law of the Territory to provide the represented adult with information and/or things. This clause permits an ADM to receive information and things related to health care action instead of the represented adult. Protection is provided under this clause to persons releasing information in good faith. The release of the information in accord with this clause will not breach any professional code of conduct and persons will not be civilly or criminally liable.

Clause 104 Record keeping and reporting requirements

This clause requires the ADM (health) to keep records that relate to decisions about health care action for the represented adult.

Clause 105 Reimbursement of expenses

Under this clause an ADM (health) is entitled to reimbursement for reasonable costs incurred in acting as an ADM, as approved by the Tribunal. However, an ADM (health) is not entitled to remuneration for being an ADM (health).


Clause 106 ADM to hand over when ceasing to be ADM

Under this clause a person ceasing to be and ADM (health) must take all reasonable steps to ensure a smooth transition of decision making authority to another ADM or the represented adult (where appropriate).
In the event the represented adult has died the ADM (health) must take all reasonable steps to ensure a smooth transition of the represented adult’s estate to the adult’s executor.

Division 3 Supervision of ADM (health) and jurisdiction of Tribunal

Clause 107 Commissioner may give advice

Under this clause an ADM acting in good faith may seek out and act in accordance with the Commissioner’s opinion and advice relating to the exercise of the ADM’s authority.

Clause 108 Tribunal may give directions

This clause allows the Tribunal to give direction to an ADM (health) about the exercise of the ADM’s authority in general or a specific circumstance.
The represented adult or an interested person for the represented adult may make applications to the Tribunal for directions.

Clause 109 Declarations about capacity etc.

This clause empowers the Tribunal may make a declaration as to whether an adult has impaired capacity for health care action and whether a person is an ADM (health) for an adult and the scope of the authority of an ADM (health)

Clause 110 Tribunal may give directions to former ADM (health)

This clause allows the Tribunal to direct a former ADM (health) upon application by the former ADM, represented adult or interested party of the represented adult to ensure a smooth transition of decision making authority. Failure to comply with the Tribunals direction may result in penalties.



Chapter 4 Consent to health care action

Part 4.1 Consent to health care action by ADM or Tribunal

Clause 111 Scope of consent decision

This clause provides that consent about health care action may be provided for either a particular instance or a course of health care over a period of time.

Clause 112 Consent decision in advance care directive

This clause allows the Tribunal to make a direction about an advance care directive, if the Tribunal is satisfied that there is no reasonable possibility that the adult would have intended the consent decision in the directive to apply in the present circumstances; or that by taking the health care action in reliance on the consent decision in the directive it would cause the adult unacceptable pain and suffering or the consent decision is so wholly unreasonable that it is justifiable to override the adult's wishes. The Tribunal may give a direction at any time on its own initiative; or on application by the adult, a health care provider for the adult or any other interested person for the adult.

Clause 113 Consent decisions by ADMs

This clause provides for a hierarchy of decision making in situations where there are a number of ADM’s with authority to make a health care decision on behalf of a represented person. A consent decision about the health care action must be made in order of the priority of the ADMs’ which is firstly an ADM who is reasonably available and willing to make the decision and whose decision-making capacity for the action is unimpaired.

The order of priority of ADMs for a represented adult is firstly an ADM (substitute) under a life management document, secondly an ADM (tribunal), and then thirdly an ADM (health).

Clause 114 Two or more ADMs with same priority

This clause allows for a situation when two or more ADMs with the same priority are appointed. If the ADMs agree on how the consent decision is to be made then the consent decision can be made by any one of the ADMs.

Alternatively, when ADMs of the same priority do not agree this clause allows the health care provider to select an ADM. The health care provider must reasonably believe one ADM is able to act in the best interests of the represented adult in the circumstances. The selected ADM must then make the consent decision.

Clause 115 Uninformed consent by ADM not sufficient

This clause requires that health care providers must not accept an ADM’s consent decision unless reasonably satisfied the ADM is informed. This requires that the ADM understands their obligation to act in accord with decision making principles and the effect of making the decision. The ADM must also act freely and voluntarily in making the decision.

In addition, all information the ADM reasonably needs to make a balanced judgement has been provided and that adequate time has been afforded to the ADM to consider information.

The information needed by the ADM includes a clear explanation of the health problem, the proposed health care action and any alternatives. The health care provider must also explain the risks, effects of taking the proposed health care action and answer relevant questions. The ADM should also be informed of their right to refuse consent and the option to apply to the Tribunal to make the consent decision.

The health care provider must also disclose any financial or other interest related to the outcome of the ADM consent decision.

Clause 116 Consent decisions by Tribunals

This clause articulates the matters to be taken into account by the Tribunal when making a consent decision for a health care action in respect of an adult with impaired capacity in situations where an advance care directive written by the adult does not provide consent to the specific health care action or the Tribunal has given a direction under clause 112(3) that the directive is to be disregarded.

Clause 117 Application for urgent consent decision

This clause allows a medical practitioner whose patient is an adult with impaired capacity to apply to the Tribunal for a consent decision to be made urgently. The Tribunal must within 24 hours make that decision or if satisfied the application is not urgent, adjourn the application.

This clause also prevents the Tribunal from considering urgent consent decision applications for a course of health care action that is for a period exceeding 2 weeks.

Clause 118 Effect of consent decision by Tribunal

This clause states that a consent decision made by the Tribunal has the same effect as if it were made by the adult had he or she had full legal capacity. Any health care action to be provided over a period can only by withheld or withdrawn by the Tribunal or if the care is a restricted health care action.

The ADM can still make consent decisions about other health care actions for the represented adult.

Clause 119 Effect of application to Tribunal on consent decision

This clause provides that an application to the Tribunal to disregard an advance care directive or make a consent decision does not impact either consent decision, which stands until the Tribunal orders otherwise.

Clause 120 Effect of appeal against Tribunals decision

This clause states that the lodgement of an appeal to the Supreme Court does not impact the Tribunal’s consent decision, which stands until the Supreme Court orders otherwise.

Part 4.2 Health care providers

Clause 121 Health care provider relying on consent in advance care directive

This clause stipulates that if a health care provider takes health care action for an adult in reliance of a consent provided for in the represented person’s advance care directive, the health care provider taking the action is taken is for all purposes, to have done so with the consent of the adult and as if the adult had full legal capacity. This remains the case in a situation that the Tribunal had made an order that the advance care directive be disregarded but the health care provider had no knowledge of that direction.

Clause 122 Health care provider relying on consent of ADM or Tribunal

This clause stipulates that in situations where a health care provider takes a health care action for an adult, and reasonably believes that valid consent to the health care action had been given either by the ADM or the Tribunal, and this later is found not to be the case, then the health care provider taking the action is taken is for all purposes, to have done so with the consent of the adult and as if the adult had full legal capacity.

Clause 123 Health care provider acting with consent of adult when unaware of impaired capacity

This clause recognises that if a health care provider takes health care action for an adult relying in good faith on consent purportedly given by the adult, when in fact the adult has impaired capacity for the action; and the provider did not know, and could not reasonably be expected to know, that the adult has impaired capacity for the action, then the health care provider taking the action is taken, for all purposes, to have done so with the consent of the adult and as if the adult had full legal capacity.

Part 4.3 Miscellaneous matters

Clause 124 Tribunal declaration about health care action

This clause allows the Tribunal to make a declaration about a number of matters involving a health care action. Examples of the type of declaration that may be made include whether an adult has impaired capacity for health care action, whether an advance care directive constitutes a consent decision about health care action and which of 2 or more ADMs for a represented adult is to make a consent decision for health care action for the represented adult.

Clause 125 Right to refuse health care

The Bill does not impact an adult with decision-making capacity’s right to refuse health care.

Clause 126 No obligation to take health care action

This Bill does not require a health care provider to take health care action if the provider would not otherwise be required to do so.

Clause 127 Unlawful health care action not permitted

This Bill does not authorise a person to take health care action that would not be lawful health care action for an adult with full legal capacity to consent. Specifically this clause does not permit the intentional killing of another called euthanasia.

Clause 128 Other Acts not affected

This Bill does not affect the operation of any other law of the Territory that allows a person to take health care action for another person without that person's consent.

Chapter 5 Administration of this Act

Part 5.1 Commissioner for Adult Decision Making and Advocacy

Division 1 Commissioner for Adult Decision Making and Advocacy

Clause 129 Commissioner for Adult Decision Making and Advocacy

This clause establishes that there is to be a Commissioner for Adult Decision Making and Advocacy.

Clause 130 Commissioner's functions

This clause specifies the functions given to the Commissioner under this Bill. These functions include acting as advocate for adults with impaired decision-making capacity, providing advice and support for ADMs, monitoring or investigating complaints about the conduct of ADMs, ensuring compliance with this Bill and the prosecution any offences against this Bill and to act an ADM (tribunal) or ADM (substitute) for adults when appointed.

Clause 131 Commissioner's powers

This clause empowers the Commissioner to do all things necessary in the performance of the Commissioner's functions.

Clause 132 Commissioner to act in accordance with decision-making principles

This clause specifies the Commissioner must act in accordance with the decision-making principles.

Clause 133 Commissioner's independence

This clause recognises that the Commissioner is not subject to the direction of anyone in relation to the exercise of the Commissioner's function, with the following exceptions;
· unless otherwise provided in another law of the Territory; or
· where the Commissioner is an ADM, the Commissioner in this capacity is subject to the direction of the Tribunal to the same extent as other ADMs.

Division 2 Appointment of Commissioner

Clause 134 Appointment of Commissioner

This clause permits the Administrator, by Gazette notice, to appoint a person to be Commissioner.

Clause 135 Term of appointment

This clause establishes that the Commissioner holds office for a maximum term of 5 years and may be reappointed.

Clause 136 Conditions of appointment

This clause permits the Administrator to determine conditions of appointment including remuneration, expenses and allowances. These conditions can not be altered to the Commissioner's detriment during his or her term.

This clause also allows the Minister to grant a leave of absence on the conditions as determined by the Minister.

Clause 137 Resignation

This clause states the Commissioner may resign from office by giving written notice to the Administrator.

Clause 138 Termination of appointment

This clause allows the Administrator to terminate the appointment of a person as Commissioner on specific grounds outlined in the sub-clauses. The notice of termination must be in writing.

Clause 139 Acting Commissioner

This clause allows the Minister to appoint a person to act in the office of Commissioner during a period of vacancy or when the Commissioner is unable to exercise the duties of the office. The period of appointment must not exceed 12 months (continuously) in the office of the Commissioner.

The Minister may determine conditions of the appointment including remuneration, expenses and allowances.

Clause 140 Oath of office

The clause requires that a person appointed to be the Commissioner, before taking office, takes an oath of office in accordance with the Oaths, Affidavits and Declarations Act.

Division 3 Administrative matters

Clause 141 Delegation

This clause permits the Commissioner to delegate to a person any of the Commissioner's authorities under this Bill. The Commissioner must be satisfied the person has the appropriate qualifications or experience to properly exercise the delegated authority. The delegation must be in writing.

Clause 142 Staff and facilities for Commissioner

This clause requires that the Chief Executive Officer must provide the Commissioner with staff and facilities to enable the Commissioner to properly exercise the Commissioner's authorities. Staff are subject only to the direction of the Commissioner or other staff of the Commissioner.

Clause 143 Annual report

This clause stipulates that the Commissioner must prepare and give to the Minister a report on the performance of the Commissioner's functions during each financial year, by 31 October. The Minister must table a copy of the report in the Legislative Assembly within 6 sitting days after the Minister receives the report.

This clause also sets out the content of the report, which must not include the name of, or any information that might identify, any adult with impaired decision-making capacity. The report must include the following:
· the number of persons for whom the Commissioner was an ADM (tribunal) or ADM (substitute) during the year and changes in those numbers from the previous year;
· details of the staff and resources provided to the Commissioner and their adequacy in relation to the performance of the Commissioner's functions;
· any other matters required by the Minister, by regulation or the Commissioner considers appropriate.

Part 5.2 Public Trustee

Clause 144 Public Trustee's functions

This clause specifies the functions given to the Public Trustee under this Bill. These functions include acting as an ADM (tribunal) or ADM (substitute) for adults in respect of financial matters when appointed, to provide advice and support for ADMs with financial management powers, to monitor or investigate complaints about the conduct of ADMs exercising financial management powers, and to assist the Commissioner in the performance of the Commissioner's functions in relation to matters relating to an adult's property or financial affairs.

Clause 145 Public Trustee's powers

This clause authorises the Public Trustee to do all things necessary to be done for the performance of the Public Trustee's functions under this Bill.

Clause 146 Public Trustee to act in accordance with decision-making principles

This clause requires the Public Trustee to act in accordance with decision-making principles.

Clause 147 Public Trustee's independence

This clause recognises that the Public Trustee is not subject to the direction of anyone in relation to the exercise of the Public Trustee's authorities under this Bill are exercised, with the following exceptions;
· unless otherwise provided in another law of the Territory; or
· where the Public Trustee is an ADM, the Public Trustee in this capacity is subject to the direction of the Tribunal to the same extent as other ADMs.

Clause 148 Annual report

This clause requires the Public Trustee's annual report under clause 18 of the Public Trustee Act for a financial year must include a report on the performance by the Public Trustee of the Public Trustee's functions under this Bill for the financial year.

This clause also sets out the content of the report, which must not include the name of, or any information that might identify, any adult with impaired decision-making capacity.

Part 5.3 Tribunal for Adult Decision Making

Division 1 Preliminary matters

Clause 149 Definitions

This is a formal clause which provides for the clear definition of terms used in this Part.

· The term affected adult, for a proceeding before the Tribunal, refers to the adult (or represented adult) for whom the application, consent decision or order is sought.
· The term legal member is defined as a lawyer with at least 5 years experience as a legal practitioner.
· The term medical member is defined as a medical practitioner with at least 5 years experience as a medical practitioner
· The term member means a member of the membership pool for the Tribunal under clause 151.
· The term party to proceedings refers to the applicant, affected adult, any person proposed for appointment as an ADM, any ADM for the affected adult or a person joined as a party in the proceedings.
· The term president means the president of the Tribunal.



Division 2 Establishment and membership of Tribunal

Clause 150 Tribunal for Adult Decision Making established

This Bill establishes a tribunal for Adult Decision Making.

Clause 151 Membership Pool

This clause describes the requirements of persons eligible to be appointed to the membership pool as decided upon by the Administrator. The Administrator decides upon the numbers of persons on the membership pool required to ensure that the Tribunal has the capacity to properly exercise its functions. A person is eligible to be appointed as a member of the Tribunal if the person is a lawyer with at least 5 years experience as a legal practitioner; or a medical practitioner with at least 5 years experience as a medical practitioner; or is a health care provider with experience working with people with impaired decision-making capacity; or otherwise has demonstrated experience or knowledge in relation to people with impaired decision-making capacity.

Clause 152 President and deputy president

This clause allows for the administrator to appoint the president and deputy president of the Tribunal.

Clause 153 Duration of appointment

This clause specifies that a member of the Tribunal is appointed for a three year period.

Clause 154 Vacation of office

This clause states the circumstances in which a person ceases to be a member of the Tribunal.

Clause 155 Termination of appointment

This clause describes the circumstances in which the Administrator is able to terminate the appointment of a person as a member of the Tribunal. This clause defines how the Administrator must notify the termination of appointment.

Division 3 Jurisdiction and exercise of functions

Clause 156 Tribunal’s jurisdiction

This clause states that the Tribunal has jurisdiction to deal with and determine all matters coming before it under this or any other Act.

Clause 157 Tribunal to act in accordance with decision-making principles

This clause states that the Tribunal must act in accordance with the decision-making principles.

Clause 158 Convening Tribunal for a proceeding

This clause describes how the Tribunal should be convened for a proceeding by the president.

Clause 159 Selected members to be impartial

This clause describes the circumstances in which the president must not select a member for a proceeding when the member has an interest in the proceeding and defines the meaning of “an interest.”

Clause 160 Member withdrawing, vacating office etc. during proceeding

This clause outlines how the president must alter the constitution of the Tribunal in the event that a member selected for a proceeding withdraws, vacates office or otherwise becomes unable to deal with a proceeding.

Clause 161 Tribunal decisions by a majority decision

This clause defines that the decision of the Tribunal will be that of the majority of the members when the Tribunal convened for a proceeding comprises more than one member.

Division 4 Tribunal proceedings

Subdivision 1 Starting a proceeding

Clause 162 How proceeding may be started

This clause describes how a proceeding before the Tribunal may be commenced. A proceeding may be commenced by an application by an interested party or on the Tribunals own initiative.

Clause 163 Application requirements

This clause stipulates that applications to the Tribunal are required to be provided in the form provided by the rules made under clause 189, or if no form is provided, in writing and must be accompanied by relevant documents to the application.

Clause 164 Notice of proceedings

This clause requires that as soon as possible after a proceeding is commenced the Tribunal must give notice of the proceeding to each party in the proceeding, other than the applicant; the Commissioner and if the proceeding relates to a matter relating to the affected adult's property or financial affairs - the Public Trustee.

Clause 165 Tribunal may decline to deal with a matter

This clause permits that the Tribunal may decline to deal with an application, or discontinue a proceeding if the Tribunal is satisfied that the applicant does not have standing to make the application, or the application is frivolous or vexatious, or is misconceived or lacking in substance, or it was not made in good faith; or in cases where the application is incomplete. In situations under this clause the Tribunal may order the applicant to pay some or all of the costs of the proceeding.

Clause 166 Parties in proceeding

This clause defines who is a party to a proceeding before a Tribunal. A party to a proceeding includes the applicant, the affected adult, any ADM or proposed ADM for the affected adult and any person joined as a party in the proceeding by the Tribunal. The Tribunal may join as a party in the proceeding any person the Tribunal is satisfied is an interested person for the affected adult, or otherwise has a proper interest in the proceeding.

Subdivision 2 Conduct of proceeding

Clause 167 Conduct of proceeding generally

This clause specifies that a proceeding before the Tribunal is an inquiry, not an adversarial proceeding. The Tribunal must conduct a proceeding as expeditiously as is reasonably practicable; and with as little formality and technicality as is reasonably practicable. The Tribunal may conduct a proceeding in any way the Tribunal considers appropriate but must comply with the rules of natural justice. The Tribunal is not bound by the rules of evidence and the Tribunal can decide where and how a proceeding may be conducted.

Clause 168 Right to be heard

This clause stipulates that in a proceeding before the Tribunal, each party has a right to be heard and must be given a reasonable opportunity to exercise that right and the Tribunal must seek to obtain the views of the affected adult as far as it is practicable to do so.

Clause 169 Obtaining information

This clause permits the Tribunal to obtain relevant information from any persons the Tribunal considers appropriate, consult with any persons the Tribunal considers appropriate and make any inquiries the Tribunal considers appropriate.

Clause 170 Self-incrimination

This clause stipulates that an individual is not excused from answering a question or producing a document to the Tribunal on the ground that doing so may tend to incriminate the individual or expose the individual to a penalty. However, an answer or document provided by an individual is not admissible as evidence against the individual in civil or criminal proceedings, other than proceedings arising out of the false or misleading nature of the answer or document.

Clause 171 Information not admissible as evidence in other proceedings

This clause states that information given to the Tribunal in a proceeding cannot be used as evidence in civil or criminal proceedings.

Clause 172 Questions of law

This clause states that if the Tribunal convened for a proceeding does not include a legal member and a question of law arises for determination in the proceeding the Tribunal may refer the question to the president for determination. However, if the deputy president is acting as president and is not a legal member, the Tribunal may refer the question to another legal member. A decision by the president or other legal member on the question of law is taken to be part of the decision of the Tribunal in the proceeding.

Clause 173 Assistance to affected adult

This clause authorises the Tribunal to appoint a legal practitioner to represent an affected adult if the adult is unrepresented; and the Tribunal considers legal representation is desirable. The Tribunal may appoint an interpreter or communications assistant for an affected adult if the adult does not speak English at a level that will enable the adult to understand the proceeding or has any other communications difficulty; and the Tribunal considers the assistance of an interpreter or other assistant is desirable. The Tribunal may appoint any other person to assist or support the affected adult if the Tribunal considers it desirable to do so. The Tribunal may make these appointments despite any objections of the adult. The services of a person appointed under this clause are to be provided at no cost to the affected adult.

Subdivision 3 Proceeding to be private, reporting etc.

Clause 174 Tribunal proceeding to be private

This clause requires that a proceeding before the Tribunal, including any hearing held as part of the proceeding, is to be conducted in private and not open to the public.

Clause 175 Record of proceeding

This clause requires the Tribunal to keep an accurate record of all proceedings and on request, give a party in the proceeding access to the record of the proceeding at no cost.

Clause 176 Notice of Tribunal decision

This clause requires the Tribunal to, after determining a proceeding, give notice of its decision to each party. The Tribunal may give notice of the decision to any other person it considers appropriate and must inform the party of the party's right to request written reasons and to appeal to the Supreme Court. The Tribunal must give reasons for its decision; and on request by a party, give the party written reasons for its decision.

Clause 177 Publication of information about proceeding

This clause states that a person commits an offence and can receive a financial penalty or be sentenced to a term of imprisionment if the person engages in conduct that results in the publication of information about a proceeding; and the information identifies the affected adult or enables the identity of the affected adult to be ascertained. This does not apply if the Tribunal has authorised the publication of the information. The Tribunal may authorise publication of information that is otherwise prohibited only if satisfied that publication is consistent with the decision-making principles; and in the public interest. The Tribunal may authorise publication at any time on its own initiative; or on the application of: a party in the proceeding; or another person the Tribunal is satisfied has a proper interest in the proceeding.

Division 5 Appeal to Supreme Court

Clause 178 Definitions

This clause defines: original decision, in an appeal to the Supreme Court, as the Tribunal's decision that is the subject of the appeal. Original proceeding, for an appeal, is defined as the proceeding before the Tribunal in which the original decision was made.

Clause 179 Appeal to Supreme Court

This clause allows any of the following persons to appeal to the Supreme Court against a decision of the Tribunal: a party in the proceeding; the Commissioner or the Public Trustee. An appeal must be lodged with the Supreme Court within 28 days after the Tribunal's decision is made.

Clause 180 Parties to appeal and notice

This clause states that the respondent to an appeal is the Tribunal. The Supreme Court may add any of the following as a party to the appeal: a person who was a party in the original proceeding; the Commissioner; the Public Trustee. The Supreme Court may add a person as a party: at any time on its own initiative; or on the application of: a party to the appeal; or a party in the original proceeding. However, the Supreme Court cannot add a person as an appellant without the person's consent. As soon as practicable after being served with a notice of appeal, the Tribunal must give notice of the appeal to each party in the original proceeding other than the appellant.

Clause 181 Stay of decision and other interim orders

This clause allows the Supreme Court to, pending determination of the appeal, do either or both of the following: stay the operation of the original decision; make other interim orders as it considers appropriate. A stay or other interim order may be given on any conditions specified by the Supreme Court.

Clause 182 Hearing of appeal

This clause states that at the hearing of an appeal, fresh evidence or evidence in addition to or in substitution for the evidence before the Tribunal may be given.

Clause 183 Power of Supreme Court

This clause requires that after hearing an appeal, the Supreme Court must do one of the following: confirm the original decision; vary the original decision; set aside the original decision; set aside the original decision and replace it with the Court's own decision; set aside the original decision and refer the matter back to the Tribunal for reconsideration. In making its decision, the Supreme Court must act in accordance with the decision-making principles. The Supreme Court may make any ancillary orders as to costs or other matters as it considers appropriate. If it makes a decision to set aside the original decision and refer the matter back to the Tribunal for reconsideration, the Supreme Court may give directions to the Tribunal as it considers appropriate.

Division 6 Administrative matters for Tribunal

Clause 184 Staff and facilities for Tribunal

This clause states that the Chief Executive Officer must provide the Tribunal with staff and facilities to enable it to properly exercise its authorities.

Clause 185 Annual report

This clause requires the president to prepare and give to the Minister by 31 October following the end of the financial year, a report on the performance of the Tribunal’s functions during each financial year. The report must not include the name of, or any information that might identify any adult with impaired decision-making capacity. The Minister must table a copy of the report in the Legislative Assembly within 6 sitting days after the Minister receives the report.

Division 7 Miscellaneous matters

Clause 186 Tribunal may make orders as to costs etc.

This clause allows the Tribunal in any proceeding to make any ancillary orders as to costs or other matters as it considers appropriate.

Clause 187 Tribunal decisions generally

This clause states that an order, determination, direction or other decision of the Tribunal has effect according to its terms; and may be varied or revoked by the Tribunal.

Clause 188 Validity of actions

This clause states that anything done by the Tribunal is valid even if the appointment of a person as a member was defective; or a person appointed as a member was ineligible to be a member.

Clause 189 Tribunal rules and practice directions

This clause allows the president to make rules for the practice and procedure of the Tribunal. The rules may deal with the following: the conduct of proceedings; the conduct of hearings held during proceedings; access by parties to information and documents provided to the Tribunal for proceedings; representation of parties; determination of proceedings in the absence of one or more of the parties in a proceeding and forms for use in proceedings and documents required to accompany forms. Rules dealing with forms may provide for the use of forms approved by the president. The president may also issue practice directions about the practice or procedure of the Tribunal.

Part 5.4 Other administrative matters

Clause 190 Protection from liability

This clause states that a person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of authority as an official. This does not affect any liability the Territory would, apart from that subclause, have for the act or omission. For the purposes of this clause exercise, of authority, includes the purported exercise of authority.

Clause 191 Confidentiality of information

This clause establishes that a person commits an offence and may receive a financial penalty or be sentenced to a term of imprisonment, if the person: obtains information while exercising authority as an official; and engages in conduct that results in the disclosure of information.
This does not apply if the person discloses the information for the administration of this Bill; or with the consent of the person to whom the information relates; or for legal proceedings arising out of the operation of this Bill.

Chapter 6 Enforcement

Part 6.1 Investigations

Division 1 Preliminary matters

Clause 192 Definitions

This clause provides the clear definition of terms defines terms used in this Part.

Division 2 Investigators

Clause 193 Investigators

This clause states that the Commissioner; the Public Trustee a person appointed under clause 194 or a police officer has all the powers and functions of an investigator.

Clause 194 Appointment of investigators

This clause requires the Commissioner and Public Trustee (each an appointor) to each appoint the number of investigators they consider necessary for the proper performance of the appointor's investigation functions.


Clause 195 Identity card

This clause requires each appointor to issue an identity card to himself or herself; and each investigator appointed by the appointor. The identity card must state the investigator's name; that the person is an investigator; the card's expiry date; and show a recent photograph of the investigator. A person who ceases to be an investigator must return his or her identity card to the appointor who issued it within 2 weeks after the cessation or a financial penalty may apply.

Clause 196 Production of identity card

This clause requires an investigator to produce their identity card if requested to do so by the person. If they do not produce the card, they are not authorised to exercise the authority; and the person is not required to comply with a requirement made by the investigator.

Clause 197 Exercise of powers

This clause stipulates that an investigator may exercise authority under this Part: only if the investigator reasonably believes that doing so is reasonably necessary for investigative purposes; alone or with the number of persons to assist the officer that is necessary and reasonable; or use the force that is necessary and reasonable. In exercising authority under this Part an investigator is subject to directions of the appointer by whom he or she was appointed.

Division 3 Powers of entry and inspection

Clause 198 Powers of entry

This clause authorises an investigator for investigative purposes to: enter and remain at a place if the place is not used exclusively or primarily as a residence at any reasonable time; or with the consent of the occupier of the place or under the authority of a warrant. The investigator may enter a vehicle, vessel or aircraft and may require a person to stop it; move or not move it; or take it to a stated place and remain in control of it until the investigator permits the person to leave. If the place is Aboriginal land within the meaning of the Aboriginal Land Act, the investigator may enter the place even though the investigator does not hold a permit under that Act to do so.

Clause 199 Consent to entry

This clause requires that when seeking the consent of the occupier of a place to enter the place, the investigator must identify himself or herself as an investigator; and explain to the occupier the reasons why entry is sought; and inform the occupier that the occupier may refuse to give consent. If the investigator does not comply with this clause, the occupier is taken not to have given consent.

Clause 200 Warrant to enter place

This clause allows an investigator to apply to a Magistrate for a warrant to enter a place if entry would cause an unreasonable delay; and consent has been refused or cannot be obtained within a reasonable time. The Magistrate may issue a warrant to the investigator if satisfied by evidence on oath that there are reasonable grounds for entering the place. The warrant authorises the investigator to enter and remain at the place; and to exercise authority under this Part for the purpose stated in the warrant. The warrant may be executed by the investigator to whom it is issued or another investigator. The investigator executing a warrant must, when asked by a person at the place, show the warrant to the person. If the investigator does not do so when asked, the investigator is not authorised to remain at the place.

Clause 201 Powers of inspection

This clause authorises an investigator who enters a place under clause 198 to do any of the following: inspect the place or anything at the place; open anything found at the place; take measurements of the place or anything at the place; photograph, film or otherwise make a record of the place or anything at the place; take copies of, or extracts from, documents at the place; operate or test anything at the place; exercise another power prescribed by regulation. The investigator may require a person who is at the place to do any of the following: give the person's full name and address; provide information to the investigator; make available to the investigator documents kept at the place; answer questions asked by the investigator; give the investigator reasonable help to exercise powers under this clause.

Clause 202 Requirement to provide information

This clause authorises an investigator to require a person whom the investigator reasonably believes has information to do any of the following: give the person's full name and address; provide the information to the investigator; answer questions asked by the investigator.

Clause 203 Requirement to produce documents of things

This clause authorises an investigator to require a person whom the investigator reasonably believes has a document or other thing that is relevant for those purposes to produce the document or thing to the investigator. The investigator may exercise any of the powers mentioned in clause 201 in relation to the document or thing.

Clause 204 How requirements to be made

This clause applies in relation to: a requirement to move, not move or take a vehicle, vessel or aircraft under clause 198; or provide information or documents under clauses 201, 202 or 203. The requirement must be given in writing and the investigator must identify himself or herself as in investigator; and inform the person to whom the requirement is given that it is an offence not to comply with it unless the person establishes a reasonable excuse. If the investigator does not comply with this clause, the person is not required to comply with the requirement.

Clause 205 Failing to comply with requirement

This clause states that a person who is given a requirement under this Division commits an offence if they engage in conduct that results in a contravention of the requirement. A financial penalty may apply. It is a defence to a prosecution if the defendant establishes a reasonable excuse. It is a reasonable excuse for an individual to fail comply with the requirement if doing so might tend to incriminate the individual.

Division 4 Seizure and forfeiture of things

Clause 206 When thing is connected with an offence

This clause defines for the purpose of this Division a thing is connected with an offence if the offence has been committed in relation to the thing; or the thing will provide evidence of the commission of the offence; or the thing was used, is being used or is intended to be used for the purpose of committing the offence.



Clause 207 Powers of seizure

This clause allows an investigator to seize a thing on the reasonable belief that the thing is connected with an offence against the Bill. The investigator must also believe the seizure is necessary to prevent the thing from being used to commit the offence or for forensic or evidentiary purposes.

Clause 208 Notice of seizure

This clause requires as soon as practicable after seizing a thing, the investigator must give the person from whom it is seized written notice of the seizure.

The notice must include a description of the thing, reason for its seizure and details of the right to apply to the Local Court for the release of the thing under clause 212.

Clause 209 Commissioner to keep seized things

This clause authorises the Commissioner to keep a seized thing at the place where it was seized or remove it to another place. The Commissioner is taken to be in possession of the seized thing and must take reasonable steps to ensure it is kept safely and securely.

Clause 210 Retention of seized things

This clause allows the Commissioner to retain a seized thing until the Commissioner is satisfied it is no longer necessary to retain it for forensic or evidentiary purposes or to prevent it being used in the commission of an offence. Further, if a court orders its release or forfeiture to the Territory.

Clause 211 Release of seized thing to person entitled to it

This clause permits the Commissioner to release the seized thing to a person who the Commissioner reasonably believes is entitled to it.

Clause 212 Local Court may order release or forfeiture of seized thing

This clause applies to a seized thing in the possession of the Commissioner and no one has been charged with an offence related to the thing. This clause authorises the Local Court to on application by a person entitled to the thing order the Commissioner to release the thing.
Alternatively, upon application by the Commissioner the Local Court may order that the thing is forfeited to the Territory, if satisfied that the Commissioner has made all reasonable steps but failed to find a person entitled to the thing.

Clause 213 Court hearing charge may order release or forfeiture of seized thing

This clause applies to a seized thing in the possession of the Commissioner and a person has been charged with an offence related to the thing. This clause authorises the court hearing the charge to make orders for the release of the thing to a person entitled to it or for its forfeiture to the Territory.

Part 6.2 Offences

Clause 214 Misleading information

This clause prescribes that a person commits an offence if the person knowingly gives misleading information to an official who is acting in an official capacity.

A person also commits an offence if the person knowingly gives a document containing misleading information to an official who is acting in an official capacity. However, an exception to the offence arises if the person draws the misleading aspect of the document to the official's attention and provides reasonably information to remedy the misleading aspect of the document. The maximum penalty for these offences is 200 penalty units or imprisonment for 2 years.

Clause 215 Obstruction of official or Tribunal

This clause prescribes that a person commits an offence if the person obstructs (hinders and/or resists) an official acting in an official capacity. A person also commits an offence if the person obstructs the Tribunal. The maximum penalty for these offences is 50 penalty units or imprisonment for 6 months.

Clause 216 Falsely representing to be an official

This clause prescribes that a person commits an offence if the represents by words or conduct that the person or another person is an official and knows the representation is false. The maximum penalty for these offences is 200 penalty units or imprisonment for 2 years.

Clause 217 Falsely representing to be ADM

This clause prescribes that a person commits an offence if the represents by words or conduct that the person or another person is an ADM with authority for a particular matter and knows the representation is false. The maximum penalty for this offence is 200 penalty units or imprisonment for 2 years.

The clause also prescribes that a person commits an offence if the represents by words or conduct that the person or another person is an ADM with intent to obtain a benefit for the person or another person. The maximum penalty for this offence is 7 years imprisonment.

Clause 218 Improperly inducing person to make life management document

This clause prescribes that a person commits an offence if the person engages in conduct with intent to induce another person to make or amend a life management document with threats, dishonesty or the use of other undue influence. The maximum penalty for this offence is 7 years imprisonment.

Clause 219 Improper exercise of authority by ADM

This clause prescribes that a person who is an ADM commits an offence if the person engages in conduct that contravenes clauses 39(2), 75(2) or 99(2) of the Bill and the person is reckless as to whether the conduct contravenes that clause. The maximum penalty for this offence is 5 years imprisonment.

This clause also prescribes that a person who is an ADM commits an offence if the person engages in conduct that contravenes clauses 39(2), 75(2) or 99(2) of the Bill and the person is reckless as to whether the conduct contravenes that clause and does so with intent to obtain a benefit for the person or another person. The maximum penalty for this offence is 7 years imprisonment.

Clause 220 Inducing ADM to exercise authority improperly

This clause prescribes that a person commits an offence if the person engages in conduct with intent to induce an ADM to engage in conduct that contravenes clauses 39(2), 75(2) or 99(2) of the Bill.

The maximum penalty for this offence is 5 years imprisonment.

This clause also prescribes that a person commits an offence if the person engages in conduct with intent to induce an ADM to engage in conduct that contravenes clauses 39(2), 75(2) or 99(2) of the Bill, with intent to obtain a benefit for the person or another person.

The maximum penalty for this offence is 7 years imprisonment.

Part 6.3 Criminal liability for offences

Clause 221 Conduct of representative

This clause applies to a prosecution of an individual for an offence against a provision of this Bill and outlines matters that the Court may take into consideration when hearing a prosecution for an offence under this Bill.

Clause 222 Criminal liability of executive officer of body corporate

This clause applies to a prosecution of an Executive Officer of a Body Corporate for an offence against a provision of this Bill and outlines matters that the Court may take into consideration when hearing a prosecution for an offence under this Bill.

Clause 223 Alternative verdicts

This clause stipulates that the Court may substitute an alternate offence for the offence originally prosecuted, in cases where the Court not is satisfied beyond reasonable doubt that the person committed the originally prosecuted offence, but is satisfied beyond reasonable doubt that the person did commit an alternate offence under the Bill. This clause also provides a table outlining the alternate verdicts available to the Court.

Clause 223 Alternative verdicts

This clause stipulates that the Court may substitute an alternate offence for the offence originally prosecuted, in cases where the Court not is satisfied beyond reasonable doubt that the person committed the originally prosecuted offence, but is satisfied beyond reasonable doubt that the person did commit an alternate offence under the Bill. This clause also provides a table outlining the alternate verdicts available to the Court.

Part 6.4 Consequences of conviction

Clause 224 Termination of appointment as ADM and
disqualification

This clause authorises a court convicting a person of an offence against this Bill to, in addition to imposing any penalty on the person, do either or both of the following: if the person is an ADM, terminate the person's appointment as ADM; disqualify the person from being an ADM for the period specified by the court. If a person's appointment is terminated, this Bill applies as if the person had died. A person who is disqualified under this clause cannot be appointed as an ADM (tribunal) or ADM (substitute) and cannot act as an ADM (health) during the period of the disqualification.

Clause 225 Payment of compensation to represented adult

This clause applies if a person (the offender) is convicted of an offence against clauses 217 to 220. If the court convicting the offender is satisfied that the conduct of the offender in committing the offence caused loss to the represented adult, the court may order the offender to pay compensation to the represented adult for that loss. If the represented adult is dead, a reference to the represented adult includes a reference to the adult's estate. The standard of proof for a matter under this clause is beyond reasonable doubt. This clause does not affect any civil liability the offender may have in relation to the conduct constituting the offence, but any compensation paid under this clause must be taken into account in assessing damages in any later civil action. In this clause represented adult includes a person for whom the offender was an ADM; or a person whom the offender sought to induce to make a life management document.

Part 6.5 Legal proceedings

Clause 226 Commencement of prosecution

This clause states that proceedings for an offence against this Bill may only be started by: the Commissioner; or the Chief Executive Officer; or a person authorised by the Minister.



Clause 227 When prosecution to be started

This clause states that proceedings for an offence against this Bill that is a simple offence, may be started within 2 years after the date on which an investigator first became aware of the commission of the offence.

Chapter 7 Miscellaneous matters

Clause 228 Regulations

This clause allows the Administrator to make regulations under this Bill. The regulations may provide for the following: recognition in the Territory of orders made in other jurisdictions that have an effect similar to that of an ADM order; documents made by persons under laws of other jurisdictions that have an effect similar to that of a life management document; fees payable under this Bill.


 


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