ADVANCE PERSONAL PLANNING (CONSEQUENTIAL AMENDMENTS) BILL 2013 Explanatory Statement

2013

LEGISLATIVE ASSEMBLY OF THE

NORTHERN TERRITORY

ATTORNEY-GENERAL AND MINISTER FOR JUSTICE

ADVANCE PERSONAL PLANNING (CONSEQUENTIAL AMENDMENTS) BILL 2013

SERIAL NO. 54

EXPLANATORY STATEMENT

The Advance Personal Planning (Consequential Amendments) Bill makes a range of amendments to Acts and Regulations affected by the Advance Personal Planning Act. The Acts and Regulations amended by this Bill include the:

· Adult Guardianship Act,
· Aged and Infirm Persons’ Property Act,
· Mental Health and Related Services Act,
· Emergency Medical Operations Act,
· Transplantation and Anatomy Act;
· Powers of Attorney Act;
· Disability Services Act;
· Carers Recognition Act;
· Criminal Code Act;
· Prisons (Correctional Services) Act;
· Public Trustee Act;
· Retirement Villages Act;
· Serious Crime Control Act;
· Terrorism (Emergency Powers) Act;
· Child Protection (Offender Reporting and Registration) Regulations; and
· Powers of Attorney Regulations.
NOTES ON CLAUSES

Part 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 Advance Personal Planning (Consequential Amendments) Act 2013.

This part of the Bill will amend the Adult Guardianship Act.

Clause 4. Section 3 amended

This clause inserts new definitions into the Adult Guardianship Act that assists the reader in understanding terminology relating to the Advance Personal Planning Act. It also includes a definition of ‘agent’ to collectively refer to any person who has decision making capacity on behalf of a person such as a decision maker, manager appointed under the Aged and Infirm Persons’ Property Act and a donee appointed by the person under an enduring power of attorney.

Clause 5 Section 4 amended
This clause makes a consequential amendment to the Adult Guardianship Act to insert a new subsection 4(2) to provide that if a represented person has made an advance care statement, it enables the adult guardian to give effect to the advance care statement even if it is not in the adult’s best interests. An adult guardian will only be excused from following an advance care statement if the person having capacity states they do not want effect to be given to the statement or one of the five circumstances set out in subsection 23(2) of the Advance Personal Planning Act exist.

Clause 6 Section 8 amended
This clause amends section 8 of the Adult Guardianship Act to include an agent in the list of persons who are able to make an application for a guardianship order on behalf of a person.

Clause 7 Section 9 amended
This clause inserts a new subparagraph 9(3)(ca) to include a new subject category relating to advance personal plans that the Guardianship Panel can provide advice on.

Clause 8 Section 13 amended
This clause amends section 13 of the Adult Guardianship Act to include an agent in the list of persons who are able to make representations in an application for a guardianship order.

Clause 9 Section 14 amended
This clause amends section 14 of the Adult Guardianship Act to enable, when considering whether a person is suitable to act as a person’s guardian, whether the proposed guardian is an agent of the person or the compatibility of the proposed guardian with any agents.

Clause 10 Section 15 amended
This clause makes a minor consequential amendment to subsection 15(3) of the Adult Guardianship Act to also require the Executive Officer to forward a copy of the order to any agents of the person that are known to the Executive Officer.

Clause 11 Section 16A insert
Clause 10 inserts a new section 16A in the Adult Guardianship Act titled ‘Restriction on orders if person has advance personal plan’. Section 16A provides that when appointing a guardian the Court needs to take into account a person’s advance personal plan in determining whether a person is in need of a guardian, whether to make a guardianship order, the terms of the order and whether a manager of an estate needs to be appointed. If a person has a decision maker, the Court cannot give a guardian or manager authority to do anything the decision maker has authority to do.

Clause 12 Section 17 amended
Clause 11 amends section 17 by inserting a minor reference to Part 4 of the Advance Personal Planning Act.

Clause 13 Section 20 amended
Clause 12 amends section 20 by inserting a new subsection (2A) which provides that if a person has made an advance case statement, that a guardian must exercise their duties to give effect to that statement even if it is not in the person’s best interests.

Clause 14 Section 21 amended
Clause 13 amends section 21 by replacing subsections 21(1) and 21(2) with a new subsection 21(1) of substantially the same effect, ie a guardian does not have authority to give consent for the carrying out of a major medical procedure.

Section 21 is also amended by omitting subsections 21(6), 21(7), 21(8) and 21(9) which relate to court procedure and instead inserts a note for section 21 to explain that the Advance Personal Planning Act governs the giving of consent for health care action for an adult who has impaired decision-making capacity. It specifies the order of persons who have authority to make a consent decision, the last person being the Court and that a guardian may apply under the Advance Personal Planning Act to the Local Court for consent.

Clause 15 Section 23 amended
Clause 14 amends section 23 to include an agent in the list of persons who may apply for the review of a guardianship order and who need to be notified of a review hearing.

Clause 16 Sections 23A and 23B inserted

This clause makes a consequential amendment to the Adult Guardianship Act by inserting new sections 23A and 23B.

New section 23A provides that where a person has more than one agent, a court may make orders as it thinks fit for a guardian’s powers, functions and duties to enable a reasonable and workable division of decision making authority between the guardian and the agents for the represented person.

New section 23B provides for consequences if the Court makes a guardianship order and is not aware of the advance personal plan.

If this occurs, an order is not invalid, however, as soon as practicable after becoming aware of the plan, the Executive Officer must apply to the Court for a review of the guardianship order.

Clause 17 Act amended
This part of the Bill will amend the Advance Personal Planning Act.

Clause 18 Section 3 amended
This clause makes consequential amendments to section 3 of the Advance Personal Planning Act to include new definitions of

‘Advance Personal Planning (Part 4A) Register’ and ‘registered’ as a result of a new Part 4A inserted by clause 20.

Clause 19 Section 22 amended
This clause makes an amendment to the Advance Personal

Planning Act by inserting a new subsection 22(5A) to make it clear that exercising a decision maker’s authority may be done in a way that is not in the adult’s best interests.

This clause makes an amendment to subparagraph 22(7)(b) and inserts new subparagraph 22(7)(ba) into the Advance Personal Planning Act to broaden what can be considered as maintenance or improvement of the adult’s health and wellbeing.

Clause 20 Section 42 amended
This clause makes a minor consequential amendment to section 42(4)(a) of the Advance Personal Planning Act as a result of the amendments to section 22 in clause 19.

Clause 21 Section 44A inserted
This clause makes an amendment to the Advance Personal

Planning Act by inserting a new section 44A titled ‘Consent decisions by persons under other laws’.

Section 44A provides that if an adult or Court has not made a consent decision or there is no other available consenter who is able to make a consent decision, then a person with any other right under a law of the Territory to make decisions on behalf of the person may make the consent decision.

Clause 22 Section 53 amended
Clause 17 amends section 53 by inserting new subsection 53(4) which refers to the application of section 3(3A) of the Emergency Medical Operations Act.

Subsection 55A(1) provides that a dealing, in relation to land arising as a result of a decision maker exercising their authority to act on behalf of a person, is of no effect unless the advance personal plan was registered.

Subsection 55A(2) provides that if at the time the dealing was registered the advance personal plan was in existence but had not been registered and the plan is subsequently registered, then the dealing will take effect from the time the plan is registered.

Subsection 55A(3) provides that the terms of the plan and the decision maker appointed at the time when the plan is first registered will be taken to be the terms and decision maker appointed until a notice to the contrary is registered.

Subsection 55A(4) provides that subsection 55A(3) does not apply if a person knows that an advance personal plan has been amended, the appointment of a decision maker has ceased or the plan has ceased to be in force.

Subsection 55A(5) provides that registration of a plan is not required for a dealing in land that is a lease for a period not exceeding one year.

Subsection 55B(1) provides that the Registrar-General must establish and maintain a register of advance personal plans under which a person is authorised to enter into dealings in relation to land.

Subsection 55B(2) provides that the Registrar-General can keep the register in any form that is appropriate.

Subsection 55B(3) provides that registration of an advance personal plan is optional and that non registration will not affect the validity of the plan.

Subsection 55C(1) provides that the Registrar-General may register an advance personal plan authorising entry into dealings in land, amendments to advance personal plans, notice that a decision maker has ceased to be a decision maker, notice that an advance personal plan has ceased to be in force and any other document made in accordance with the regulations.

Subsection 55C(2) provides that an application for registration must be made in accordance with the Regulations and be lodged with the prescribed fee.

Clause 24 Section 78 amended
This clause amends section 78 of the Advance Personal Planning Act by inserting a new subsection 71(1A) which makes it an offence for a person to exercise authority of a decision maker when they do not know whether the represented person has impaired decision-making capacity for the matter.

Clause 25 Section 87 amended
This clause makes a minor consequential amendment to section 87 of the Advance Personal Planning Act as a result of the amendment made by clause 20 to establish the APP Land Register.

Clause 26 Section 88 amended
This clause makes a minor consequential amendment to section 88 of the Advance Personal Planning Act as a result of the amendment made to section 6A of the Powers of Attorney Act by clause 107.

Clause 27 Act amended
This part of the Bill will amend the Aged and Infirm Persons’ Property Act.

Clause 28 Section 4 amended
This clause inserts new definitions into the Aged and Infirm Persons’ Property Act that assists the reader in understanding the terminology relating to the Advance Personal Planning Act.

Clause 29 Section 5 amended
This clause makes a consequential amendment to section 5 of the Aged and Infirm Persons’ Property Act to change the jurisdiction from the Supreme Court to the Local Court. This will enable the Local Court to hear matters relating to protection orders in addition to their jurisdiction to hear and determine all matters arising under the Advance Personal Planning Act, which includes making of protection orders for adults with advance personal plans.

Clause 30 Section 6 repealed
This clause makes a minor consequential amendment to section 6 of the Aged and Infirm Persons’ Property Act as a result of amendments made to section 5 of the Aged and Infirm Persons’ Property Act by clause 29 of this Bill.

Clause 31 Section 7 amended
This clause makes a minor consequential amendment to section 7 of the Aged and Infirm Persons’ Property Act as a result of amendments made to section 5 of the Aged and Infirm Persons’ Property Act by clause 29 of this Bill.

This clause also makes a minor consequential amendment to insert a new subparagraph 7(1)(ba) to include an agent in the list of persons who are able to make an application for a protection order on behalf of a person.

Clause 32 Section 8 amended
This clause makes minor consequential amendments to section 8 of the Aged and Infirm Persons’ Property Act as a result of amendments made to sections 5 and 7 of the Aged and Infirm Persons’ Property Act by clauses 29 and 31 of this Bill.

Clause 33 Section 9 amended
This clause makes a minor consequential amendment to section 9 of the Aged and Infirm Persons’ Property Act as a result of amendments made to section 5 of the Aged and Infirm Persons’ Property Act by clause 29 of this Bill.

Clause 34 Section 10 amended
This clause makes a minor consequential amendment to section 10 of the Aged and Infirm Persons’ Property Act as a result of amendments made to section 5 of the Aged and Infirm Persons’ Property Act by clause 29 of this Bill.

This clause also makes a minor consequential amendment to remove a redundant reference to a former Administrative Arrangement Order.

Clause 35 Section 11 amended
This clause makes a minor consequential amendment to section 11 of the Aged and Infirm Persons’ Property Act as a result of amendments made to section 5 of the Aged and Infirm Persons’ Property Act by clause 29 of this Bill.

Clause 36 Section 12 amended
This clause makes a minor consequential amendment to section 12 of the Aged and Infirm Persons’ Property Act as a result of amendments made to section 5 of the Aged and Infirm Persons’ Property Act by clause 29 of this Bill.

Clause 37 Section 12A inserted
This clause makes a consequential amendment to the Aged and Infirm Persons’ Property Act by inserting a new section 12A titled
‘Restriction on orders if person has advance personal plan’.

New section 12A provides that if a person the subject of an application for a protection order has an advance personal plan, the Court must take the plan into account in determining whether the person’s estate needs protecting, whether it is necessary for a protection order to be made and the terms of the order. The Court cannot make a protection order giving a manger authority something the decision maker already has authority to do.

Clause 38 Section 13 amended
This clause makes a minor consequential amendment to section 13 of the Aged and Infirm Persons’ Property Act as a result of amendments made to section 5 of the Aged and Infirm Persons’ Property Act by clause 29 of this Bill.

Clause 39 Section 14 amended
This clause makes minor consequential amendments to section 14 of the Aged and Infirm Persons’ Property Act as a result of amendments made to sections 4 and 5 of the Aged and Infirm Persons’ Property Act by clauses 28(2) and 29 of this Bill.

Clause 40 Section 15 amended
This clause makes a minor consequential amendment to section 15 of the Aged and Infirm Persons’ Property Act as a result of amendments made to section 5 of the Aged and Infirm Persons’ Property Act by clause 29 of this Bill.

Clause 41 Section 16 amended
This clause makes minor consequential amendments to section 16 of the Aged and Infirm Persons’ Property Act as a result of amendments made to sections 5 and 12A(2)(c) of the Aged and Infirm Persons’ Property Act by clauses 29 and 37 of this Bill.

Clause 42 Section 17 amended
This clause makes a consequential amendment to the Aged and Infirm Persons’ Property Act to insert new subsection 17(4) to require a manager appointed to cooperate with any other agents appointed.

Clause 43 Section 18 amended
This clause makes a consequential amendment to the Aged and Infirm Persons’ Property Act to insert new subsection 18(2) to provide that if a represented person has made an advance care statement, it enables the manager to give effect to the advance care statement even if it is not in the adult’s best interests. A manager will only be excused from following an advance care statement if the person having capacity states they do not want effect to be given to the statement or one of the five circumstances set out in subsection 23(2) of the Advance Personal Planning Act exist.

Clause 44 Section 20 amended
This clause makes a minor consequential amendment to section 20 of the Aged and Infirm Persons’ Property Act as a result of amendments made to section 5 of the Aged and Infirm Persons’ Property Act by clause 29 of this Bill.

Clause 45 Section 22 amended
This clause makes minor consequential amendments to section 22 of the Aged and Infirm Persons’ Property Act as a result of amendments made to section 5 of the Aged and Infirm Persons’ Property Act by clause 29 of this Bill.

Clause 46 Section 24 amended
This clause makes minor consequential amendments to section 24 of the Aged and Infirm Persons’ Property Act as a result of amendments made to section 5 of the Aged and Infirm Persons’ Property Act by clause 29 of this Bill.

Clause 47 Section 25 amended
This clause makes a minor consequential amendment to section 25 of the Aged and Infirm Persons’ Property Act as a result of amendments made to section 5 of the Aged and Infirm Persons’ Property Act by clause 29 of this Bill.

Clause 48 Section 28A inserted
This clause makes a consequential amendment to the Aged and Infirm Persons’ Property Act by inserting a new section 28A titled ‘Consequences if Court not aware of advance personal plan’.

New section 28A provides that if a Court makes a protection order and the Court was unaware that the person had previously made an advance personal plan, the protection order is not invalidated. A decision maker or any person with a proper interest in the matter may apply to the Court to have the protection order amended or revoked.

Clause 49 Section 29 amended
This clause makes a minor consequential amendment to section 25 of the Aged and Infirm Persons’ Property Act as a result of amendments made to section 5 of the Aged and Infirm Persons’ Property Act by clause 29 of this Bill.

Clause 50 Section 29A inserted
This clause makes a consequential amendment to the Aged and Infirm Persons’ Property Act by inserting a new section 29A titled Additional orders if protected person has agents.

New section 29A provides that where a person has more than one agent, a Court to make orders it thinks fit for a manager’s powers, functions and duties to enable a reasonable and workable division of decision making authority between the manager and the agents for the represented person.

Clause 51 Act Amended
This part of the Bill will amend the Alcohol Mandatory Treatment Act.

Clause 52 Section 5 amended
This clause inserts a new definition of decision maker into the Alcohol Mandatory Treatment Act to assist the reader in understanding the terminology relating to the Advance Personal Planning Act.

This clause also makes a minor consequential amendment to the existing definitions of guardian and primary contact in the Alcohol Mandatory Treatment Act.

Clause 53 Section 16 amended
This clause makes a minor consequential amendment to the Alcohol Mandatory Treatment Act to include a decision maker appointed under an advance personal plan to be included as a person to be notified.

Clause 54 Section 23 amended
This clause makes a minor consequential amendment to the Alcohol Mandatory Treatment Act to include a decision maker appointed under an advance personal plan to be included as a person to be notified.

Clause 55 Section 31 amended
This clause makes a minor consequential amendment to the Alcohol Mandatory Treatment Act to include a decision maker appointed under an advance personal plan to be included as a person who is entitled to attend a hearing.

Clause 56 Section 45 amended
This clause makes a minor consequential amendment to the Alcohol Mandatory Treatment Act to include a decision maker appointed under an advance personal plan to be included as a person who is entitled to attend a hearing.

Clause 57 Section 53 amended
This clause makes a minor consequential amendment to the Alcohol Mandatory Treatment Act to ensure contact details of a decision maker appointed under an advance personal plan are included in documents relevant to the person’s admission to a treatment centre.

Clause 58 Section 59 amended
This clause makes a minor consequential amendment to the Alcohol Mandatory Treatment Act to ensure contact details of a decision maker appointed under an advance personal plan are given to the community treatment provider.

Clause 59 Section 65 amended
This clause makes a minor consequential amendment to the Alcohol Mandatory Treatment Act to ensure a decision maker appointed under an advance personal plan is consulted in the preparation of the aftercare plan and receives a copy of the aftercare plan.

Clause 60 Section 69 amended
This clause makes a minor consequential amendment to the Alcohol Mandatory Treatment Act to include a decision maker appointed under an advance personal plan to be included as a person who is entitled to access information.

Clause 61 Section 82 amended
This clause makes a minor consequential amendment to the Alcohol Mandatory Treatment Act to include a decision maker appointed under an advance personal plan as a person who has access to information relating to complaint procedures.

Clause 62 Section 92 amended
This clause makes a minor consequential amendment to the Alcohol Mandatory Treatment Act to include a decision maker appointed under an advance personal plan as a person to be given information about the community visitors program and be a person who may contact a community visitor.

Clause 63 Section 137A inserted
This clause makes a consequential amendment to the
Alcohol Mandatory Treatment Act by inserting a new section 137A titled ‘Requirements in relation to decision makers’.

New section 137A provides that where a decision maker appointed under an advance personal plan is to be notified or provided with information under a provision of the Alcohol Mandatory Treatment Act, it will be sufficient compliance if reasonable steps are taken to ascertain whether the person has a decision maker and then takes reasonable steps taken to notify and consult with the decision maker.

Clause 64 Act amended
This part of the Bill will amend the Disability Services Act.

Clause 65 Section 2 amended
This clause inserts a new definition into the Disability Services Act to assist the reader in understanding the terminology relating to the Advance Personal Planning Act.

Clause 66 Section 9 amended
This clause makes a minor consequential amendment to insert a new subparagraph 9(1)(ba) into the Disability Services Act to include a decision maker appointed under an advance personal plan to be notified of an application on behalf of a represented person.

Clause 67 Section 10 amended
This clause makes a minor consequential amendment to insert a new subparagraph 10(ba) into the Disability Services Act to include a decision maker appointed under an advance personal plan to be included as a party to proceedings for an application hearing.

Clause 68 Section 17 amended
This clause makes a minor consequential amendment to insert a new subparagraph 17(2)(ba) into the Disability Services Act to include a decision maker appointed under an advance personal plan to be notified of the date, time and place for the review of a person’s treatment and care plan.

Clause 69 Section 30 amended
This clause makes a minor consequential amendment to insert a new subparagraph 30(4)(aa) into the Disability Services Act to include a decision maker appointed under an advance personal plan to be notified if the person is absent from a secure care facility without approval.

This clause also makes a minor amendment to subparagraph 30(4)(ab) to fix a drafting error.

Clause 70 Section 36 amended
This clause makes a minor consequential amendment to insert a new subparagraph 36(3)(c)(i) into the Disability Services Act to include a decision maker appointed under an advance personal plan to be consulted with in the preparation of a behavior support plan.

Clause 71 Section 39 amended
This clause makes a minor consequential amendment to insert a new subparagraph 39(3)(c)(i) into the Disability Services Act to include a decision maker appointed under an advance personal plan to be consulted with in the 12 month review of a behavior support plan.

Clause 72 Section 45 amended
This clause makes a minor consequential amendment to insert a new subparagraph 45(3)(c) into the Disability Services Act to include a decision maker appointed under an advance personal plan to have accessible to them information of the established complaints procedure.

This clause also makes a minor amendment to subparagraph 45(3)(b) to fix a drafting error.

Clause 73 Section 46 amended
This clause makes a minor consequential amendment to insert a new subparagraph 46(1)(ba) into the Disability Services Act to include a decision maker appointed under an advance personal plan to have standing to make a complaint to the manager of a residential facility.

Clause 74 Section 58 amended
This clause makes a minor consequential amendment to insert a new subparagraph 58(2)(aa) into the Disability Services Act to include a decision maker appointed under an advance personal plan to be included as an interested person for the purposes of receiving information about the role of the community visitors program.

Clause 75 Section 72A inserted
This clause makes a consequential amendment to the
Disability Services Act by inserting a new section 72A titled ‘Requirement to notify or consult with decision maker’.

New section 72A provides that where a decision maker appointed under an advance personal plan is to be notified or provided with information under a provision of the Disability Services Act, it will be sufficient compliance if reasonable steps are taken to ascertain whether the person has a decision maker and then reasonable steps taken to notify or consult with the decision maker.

Part 7 Amendment of Emergency Medical Operations Act

Clause 76 Act amended
This part of the Bill will amend the Emergency Medical Operations Act.

Clause 77 Section 3 amended
Subclause (1) makes a consequential amendment to subsection 3 of the Emergency Medical Operations Act to provided that a medical practitioner is not entitled to perform an operation unless it is not reasonably practicable to delay performing the operation until it can be ascertained if the patient has made an advance consent decision or if an advance consent decision can be made by a decision maker or the Court.

A new subparagraph 3(3A) is also inserted to provide that a medical practitioner is not entitled to perform an operation if the medical practitioner is aware that a patient, decision maker or Court has made an advance consent decision refusing consent for the operation.

This clause makes a minor amendment to the title of Division 3 so that the terminology is consistent.

This clause makes a consequential amendment to the Land Title Act to insert a new section 149 into the Land Title Act titled Decision makers.

New section 149 provides that the Registrar-General may register an advance personal plan without needing to be satisfied that the plan has not been amended, that the plan has not ceased to be in force, that the decision maker has not ceased to be a decision maker or that the circumstances exist that entitle the decision maker to exercise authority. However, a dealing cannot be registered if either a notice that a decision maker has ceased to be a decision maker or a notice that the advance personal plan has ceased to be in force has been registered.

Clause 82 Section 4 amended
This clause inserts new definitions into the Mental Health and Related Services Act that assists the reader in understanding the terminology relating to the Advance Personal Planning Act.

Clause 83 Section 25 amended
This clause makes a minor consequential amendment to insert a new subsection 25(10) in the Mental Health and Related Services Act to make it clear that a decision maker or guardian are not able to make a voluntary admission on behalf of a person.

Clause 84 Section 27 amended
This clause makes a minor consequential amendment to subsection 27(1) of the Mental Health and Related Services Act to provide a decision maker appointed under an advance personal plan with authority to admit a person as a voluntary patient.

A minor consequential amendment is also made to subsection 27(3) to include the decision maker as a person who is to be notified.

Clause 85 Section 29 amended
This clause makes a minor consequential amendment to section 29 of the Mental Health and Related Services Act as a result of amendments made to section 27 of the Mental Health and Related Services Act by clause 85 of this Bill.

Clause 86 Section 41 amended
This clause makes a minor consequential amendment to subparagraph 41(1)(b) of the Mental Health and Related Services Act to include the decision maker as a person who is to be notified.

Clause 87 Section 43 amended
This clause makes a minor consequential amendment to subparagraph 43(1)(ba) of the Mental Health and Related Services Act to include the decision maker as a person who is to be notified.

Clause 88 Section 44D amended
This clause makes a minor consequential amendment to subparagraph 44D(1)(ba) of the Mental Health and Related Services Act to include the decision maker as a person who is to be notified.

Clause 89 Section 47 amended
This clause makes a minor consequential amendment to subparagraph 47(1)(b)(ii) of the Mental Health and Related Services Act to include the decision maker as a person who is to be notified.

Clause 90 Section 50A amended
This clause makes a minor consequential amendment to subparagraph 50A(1)(b)(iia) of the Mental Health and Related Services Act to include the decision maker as a person who is to be notified.

Clause 91 Section 53 amended
This clause makes a minor consequential amendment to subparagraph 53(3)(a)(ia) of the Mental Health and Related Services Act to include the decision maker as a person who is to be informed.

Clause 92 Section 54 amended
This clause makes a minor consequential amendment to section 54 to make it clear that consent for treatment may also be given by an adult guardian, decision maker or the Local Court in accordance with Part 4 of the Advance Personal Planning Act.

Clause 93 Section 61 amended
This clause makes a minor consequential amendment to subsection 61(15) of the Mental Health and Related Services Act to include the decision maker as a person who is to be notified.

Clause 94 Section 62 amended
This clause makes a minor consequential amendment to subsection 62(15) of the Mental Health and Related Services Act to include the decision maker as a person who is to be notified.

Clause 95 Section 63 amended
This clause makes a minor consequential amendment to subparagraph 63(3)(c) of the Mental Health and Related Services Act to make it clear that consent for treatment may also be given by an adult guardian, decision maker or the Local Court in accordance with Part 4 of the Advance Personal Planning Act.

This clause also makes a minor consequential amendment to subsection 63(6) of the Mental Health and Related Services Act to include the decision maker as a person who is to be reported to.

Clause 96 Section 64 amended
This clause makes a minor consequential amendment to subparagraph 64(2)(b) to make it clear that consent for treatment may also be given by an adult guardian, decision maker or the Local Court in accordance with Part 4 of the Advance Personal Planning Act.

This clause also makes a minor consequential amendment to subsection 64(4) of the Mental Health and Related Services Act to include the decision maker as a person who is to be notified.

Clause 97 Section 65 amended
This clause makes a minor consequential amendment to sub-paragraph 65(b) of the Mental Health and Related Services Act to make it clear that approval for treatment may also be given by a decision maker.

Clause 98 Section 66 amended
This clause makes a minor consequential amendment to subparagraph 66(1)(b) of the Mental Health and Related Services Act to make it clear that consent for treatment may also be given by an adult guardian, decision maker or the Local Court in accordance with Part 4 of the Advance Personal Planning Act.

Clause 99 Section 80A amended
This clause makes a minor consequential amendment to subparagraph 80A(1)(b) of the Mental Health and Related Services Act to make it clear that consent may also be given by an adult guardian, decision maker or the Local Court in accordance with Part 4 of the Advance Personal Planning Act.

Clause 100 Section 87 amended
This clause makes a minor consequential amendment to subparagraph 87(1A)(ba) of the Mental Health and Related Services Act to include the decision maker as a person who is to be informed.

This clause makes a minor consequential amendment to subparagraph 88(2)(ba) of the Mental Health and Related Services Act to include the decision maker as a person who is to be informed.

Clause 102 Section 89 amended
This clause makes a minor consequential amendment to subparagraph 89(4)(ba) of the Mental Health and Related Services Act to include the decision maker as a person who is to be consulted and informed.

Clause 103 Section 91 amended
This clause makes a minor consequential amendment to subparagraph 91(2)(b) of the Mental Health and Related Services Act to include the decision maker as a person who can consent to disclosure of information.

Clause 104 Section 92 amended
This clause makes a minor consequential amendment to subparagraph 92(1)(ba) of the Mental Health and Related Services Act to include the decision maker as a person who may apply for access to information.

Clause 105 Section 93 amended
This clause makes a minor consequential amendment to subsection 93(1) of the Mental Health and Related Services Act to include the decision maker as a person who may be permitted access to information.

Clause 106 Section 94 amended
This clause makes a minor consequential amendment to section 94 of the Mental Health and Related Services Act to require comments of the decision maker to be included in the person’s records.

Clause 107 Section 98 amended
This clause makes a minor consequential amendment to subparagraph 98(5)(a) of the Mental Health and Related Services Act to include the decision maker as a person who is to be notified.

Clause 108 Section 99 amended
This clause makes a minor consequential amendment to subparagraph 99(2)(hb) of the Mental Health and Related Services Act to include the decision maker as a person referred to.

Clause 109 Section 100 amended
This clause makes a minor consequential amendment to subsection 100(1) of the Mental Health and Related Services Act to include the decision maker as a person who has standing to make a complaint.

This clause also makes a minor consequential amendment to subsection 100(5) of the Mental Health and Related Services Act to include the decision maker as a person who is to be given information relating to the complaints procedure.

Clause 110 Section 108 amended
This clause makes a minor consequential amendment to subsection 108(1) of the Mental Health and Related Services Act to include the decision maker as a person who is to be informed of the person’s right to be visited by a community visitor.

Clause 111 Section 122 amended
This clause makes a minor consequential amendment to subparagraph 122(2)(aa) of the Mental Health and Related Services Act to include a reference to a person who has a decision maker.

Clause 112 Section 127 amended
This clause makes a minor consequential amendment to subparagraph 127(3)(b)(i) of the Mental Health and Related Services Act to include the decision maker as a person who has standing to make an application.

Clause 113 Section 132 amended
This clause makes minor consequential amendments to section 132 of the Mental Health and Related Services Act to include the decision maker as a person to be given access to medical records and reports and be subject to an undertaking not to disclose information.

Clause 114 Section 136 amended
This clause makes minor consequential amendments to section 136 of the Mental Health and Related Services Act to include the decision maker as a person to be provided with a copy of records and be subject to an undertaking not to disclose information.

Clause 115 Section 154 amended
This clause makes a minor consequential amendment to subparagraph 154(2)(aa) of the Mental Health and Related Services Act to include the decision maker as a person who is to be notified.

Clause 116 Section 161 amended
This clause makes a minor consequential amendment to section 161 of the Mental Health and Related Services Act to include the decision maker as a person who may sign.

Clause 117 Section 166A amended
This clause makes a minor consequential amendment to subparagraph 166A(5)(a) of the Mental Health and Related Services Act to include the decision maker as a person who is to be notified.

Clause 118 168A amended
This clause makes a minor consequential amendment to subparagraph 168A(1)(b) of the Mental Health and Related Services Act to include the decision maker as a person who is to be notified.

Clause 119 Sections 168B and 168C inserted
This clause makes a consequential amendment to the Mental Health and Related Services Act by inserting new sections 168B and 168C.

Clause 121 Section 5 amended
This clause inserts new definitions into the Powers of Attorney Act that assists the reader in understanding terminology relating to the Advance Personal Planning Act.

Clause 122 Section 6A amended
This clause makes a consequential amendment to section 6A of the Powers of Attorney Act to insert new subparagraph 6A(4)(c) which makes it clear that interstate enduring powers of attorney cannot be registered under the Powers of Attorney Act if they are a recognised instrument under section 88 of the Advance Personal Planning Act.

Clause 123 Part III, note inserted
This clause inserts a note for Part III of the Powers of Attorney Act to make it clear that Part III only applies to NT instruments executed before commencement and to interstate enduring powers of attorney regardless of when they were made.

Clause 124 Section 13 amended
This clause amends section 13 of the Powers of Attorney Act to effectively close off the ability to make an enduring power of attorney after section 8 of the Advance Personal Planning Act commences.

Clause 125 Section 15 amended
This clause makes minor consequential amendments to section 15 of the Powers of Attorney Act to change jurisdiction from the Supreme Court to the Local Court.

This clause also makes a consequential amendment to section 15 by introducing a new subsection 15(6) which makes it clear that the Court must take into account whether a donor has made an advance personal plan.

Clause 126 Section 15A inserted
This clause makes a consequential amendment to the Powers of Attorney Act by inserting a new section 15A titled Exercise of power.

New section 15A provides that if a donor of an enduring power of attorney has made an advance care statement, it enables the donee of the power to give effect to the advance care statement even if it is not in the adult’s best interests. A donee will only be excused from following an advance care statement if the person having capacity states they do not want effect to be given to the statement or one of the five circumstances as set out in subsection 23(2) of the Advance Personal Planning Act exist.

Clause 127 Section 19 amended
This clause makes minor consequential amendments to section 19 of the Powers of Attorney Act to change jurisdiction from the Supreme Court to the Local Court.

This clause amends section 32 of the Retirement Villages Act to include a requirement that a Court give notice to the following persons in addition to a guardian appointed under the Adult Guardianship Act: a decision maker appointed under an advance personal plan; a manager appointed under the Aged and Infirm Persons’ Property Act; and a donor appointed under a registered enduring power of attorney.

This clause makes a minor consequential amendment to section 8 by including a note to make it clear that a donor’s consent may be given in an advance consent decision and that if they do not have decision-making capacity, then Part 4 of the Advance Personal Planning Act permits consent to be given by a decision maker or the Local Court.

Clause 132 Section 10 amended
This clause makes a minor consequential amendment to section 10 by inserting a new subsection 10(1) that makes it clear that consent can be given by the donor personally or by another person as permitted by the Advance Personal Planning Act.

Clause 133 Section 11 replaced
This clause makes a consequential amendment to the
Transplantation and Anatomy Act by replacing section 11 with a new section 11 that includes references to consent provided by the
Local Court as permitted by the Advance Personal Planning Act. The policy intent of the section remains unchanged.

Clause 134 Section 13 amended
This clause makes a minor amendment to section 13 of the Transplantation and Anatomy Act to refer to the correct section references.

Clause 135 Section 14 amended
This clause makes a minor consequential amendment to section 14 by including a note to make it clear that if a person is 18 years of age or more then consent may be given in an advance consent decision and that if they do not have decision-making capacity, then Part 4 of the Advance Personal Planning Act permits consent to be given by a decision maker or the Local Court.

Clause 136 Section 16 amended
This clause makes a minor consequential amendment to section 16 of the Transplantation and Anatomy Act to refer generally to consent as consent is no longer only provided under the Transplantation and Anatomy Act.

Clause 137 Section 16A amended
This clause makes a minor consequential amendment to section 16A of the Transplantation and Anatomy Act to refer generally to consent as consent is no longer only provided by the person, it can now also be provided by a decision maker or the Local Court under Part 4 of the Advance Personal Planning Act.

Clause 138 Section 17 amended
This clause makes a minor consequential amendment to section 17 of the Transplantation and Anatomy Act to refer generally to consent as consent is no longer only provided under the Transplantation and Anatomy Act.

Part 13 Amendments of Other laws

Clause 139 Other laws amended
This clause inserts a schedule that makes minor consequential amendments to a range of Acts and Regulations affected by the Advance Personal Planning Act.

Clause 140 Expiry of Part
This clause provides that this Act expires the day after it commences.

Schedule - Other laws amended

The schedule makes minor consequential amendments to the Carers Recognition Act, the Criminal Code Act, the Prisons (Correctional Services) Act, the Public Trustee Act, the Serious Crime Control Act, the Terrorism (Emergency Powers) Act,

the Child Protection (Offender Reporting and Registration) Regulations and the Powers of Attorney Regulations.

Northern Territory Explanatory Statements

ADVANCE PERSONAL PLANNING (CONSEQUENTIAL AMENDMENTS) BILL 2013