GUARDIANSHIP OF ADULTS BILL 2016 Explanatory Statement

2016

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR HEALTH

GUARDIANSHIP OF ADULTS BILL 2016

SERIAL NO. 160

EXPLANATORY STATEMENT

The Guardianship of Adults Bill 2016 will replace the Adult Guardianship Act 1988 with new legislation that retains 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 seeks to recognise the overall wellbeing, human rights and fundamental freedoms of persons with impaired decision-making capacity and align with the United Nations Convention on the Rights of a Person with Disabilities.

Part 1 of the Bill outlines preliminary matters. Comprehensive definitions are provided for important terms that are used throughout the Bill. The Bill includes guardianship principles to guide any person and the Northern Territory Civil and Administrative Tribunal (the Tribunal) in the exercise of their authority under the Bill and to ensure consistency and accountability in undertaking the role of guardian.

Part 2 of the Bill outlines guardianship applications and matters relating to the appointment and authority of guardians, specific powers and duties of guardians and the terms of guardianship orders. A guardian may be an eligible adult, as defined in clause 15 of the Bill, the Public Guardian or the Public Trustee. One guardian or two or more guardians may be appointed for an adult and a guardianship order must specify the personal matters, financial matters or both for which the guardian has authority. If two or more guardians are appointed, the Tribunal may specify different matters for different guardians.

The Bill allows for an adult guardianship application to be lodged from the age of 17 years. An order will come into force only when the child turns 18 years old, allowing for a smooth transition of decision making authority from childhood into adulthood.

The Bill includes a guardian’s authority to make consent decisions about health care action for an adult. Subject to any restrictions on the guardian’s authority and sections 41 and 42 of the Advance Personal Planning Act, a guardian with authority for health care actions will be able to make consent decisions about those health care actions. Health care has a wide definition under the Bill but does not include any action that has been defined as restricted health care. Consent for restricted health care is governed by Part 4 of the Advance Personal Planning Act.

Part 3 of the Bill relates to the registration of interstate guardianship orders. Registration of an interstate order removes the need to apply for guardianship in the Northern Territory when an interstate order is already in place. This will minimise administrative processes for people involved with adult guardianship who move between jurisdictions.

Part 4 of the Bill creates an independent statutory officer as the Public Guardian and this position gives rise to the creation of the independent Office of the Public Guardian. This is an essential element of the new legislation and aligns the Northern Territory with the model used in other jurisdictions. It addresses the conflict that exists for the Minister for Health as the Public Guardian and provides for broader functions of the Public Guardian, including policy development, service improvement, systemic advocacy and community education.

The Bill outlines specific and general functions of the independent Public Guardian. It also deals with specific and general powers of the Public Guardian necessary to perform the functions of this position.

Part 5 of the Bill provides that the Northern Territory Civil and Administrative Tribunal will have jurisdiction to deal with guardianship matters under the Bill. The use of a tribunal to deal with guardianship matters will create a more accessible and flexible approach to adult guardianship and will allow applications to be determined in a timely manner.

Part 6 of the Bill covers enforcement matters and includes the creation of certain offences against the Bill and the consequences of a person being found guilty of an offence. Clause 9 of 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.

Part 7 of the Bill outlines miscellaneous matters including the power of the Administrator to make regulations.

Part 8 of the Bill notes the repeal of the Adult Guardianship Act when the Bill commences and transitional matters for guardianship orders made under the Adult Guardianship Act or applications or reviews pending under the Adult Guardianship Act.

Part 9 of the Bill notes consequential and related amendments to other legislation including the Advance Personal Planning Act.

This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Guardianship of Adults Bill 2016.

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

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.

This clause details comprehensive guardianship principles to guide decision makers in the exercise of their authority. The guardianship principles are fundamental to maximise participation in decision making and everyday life by adults with impaired decision-making capacity.

Any person and the Northern Territory Civil and Administrative Tribunal exercising authority under the Bill in relation to an adult, must exercise that authority in accordance with the guardianship principles. This authority must be exercised in a way that is least restrictive of the adult’s freedom of decision and action, as is practicable and provides the adult with as much support as is practicable to make his or her own decisions.

This clause also determines the interaction between the guardianship principles and the Advance Personal Planning Act if the adult has an Advance Personal Plan.

Clause 5 Meaning of decision-making capacity and impaired decision-making capacity

This clause defines when an adult has decision-making capacity and states that an adult is presumed to have decision-making capacity until the contrary is shown.

An adult has impaired decision-making capacity if the adult’s decision-making capacity is impaired. The cause of the impairment is immaterial. This clause recognises that an adult may have capacity to make decisions about some aspects of their life while having impaired decision-making capacity in relation to other matters, and that an adult's level of capacity may change over time.

Clause 6 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 7 Meaning of relative

A relative of an adult is included in the definition of an interested person. Relative is defined so that certain familial relationships will automatically afford the rights of an interested person under the Bill, including the right to make an application for a guardianship order for an adult and the right to have their views and wishes considered by the adult’s guardian.

Clause 8 Meaning of restricted health care

This clause defines restricted health care under the Bill and includes sterilisation of the adult, termination of a pregnancy of the adult, removal of non-regenerative tissue from the adult for the purpose of transplantation to another person, health care provided for medical research purposes or any health care action prescribed by regulation to be restricted health care.

Clause 9 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. It states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof.

Part 2 Guardianship

Division 1 Applications

Clause 10 Application for guardianship order

An application for a guardianship order is made to the Tribunal and may be made by the adult to whom the application relates or an interested person for the adult. Interested person is defined in clause 3 of this Bill.

Division 2 Appointment of guardian

Clause 11 When Tribunal may make a guardianship order
This clause states that the Tribunal may make an order appointing a guardian, for an adult if the Tribunal is satisfied that the adult has impaired decision-making capacity and that for some or all personal or financial matters the adult is unable to exercise their decision-making capacity and for some or all of these matters the adult needs a guardian.

In determining if an adult is in need of a guardian the Tribunal must take into account the nature and extent of the impairment of the adult’s decision-making capacity, whether the adult already has an agent with authority for the matters for which the adult’s decision-making capacity is impaired, any views and wishes stated by an interested person for the adult, the desirability of preserving existing family relationships and other relationships important to the adult and whether the adult’s needs could be adequately provided for in a way that is less restrictive of the adult’s freedom of decision and action than appointing a guardian.

Clause 12 Appointment in advance for young person

This clause provides that the Tribunal may make a guardianship order for a young person who is 17 years of age to come into effect when the young person turns 18. The Tribunal must be reasonably satisfied that when the young person turns 18 he or she will satisfy the criteria for making a guardianship order as specified in clause 11(1).

Clause 13 Who may be appointed

This clause states that the Tribunal may appoint any of the following as a guardian;

The Public Guardian or the Public Trustee may be appointed as one of two or more guardians for an adult under clause 14.

Clause 14 Number of guardians

Sub clause (1) provides that the Tribunal may appoint one guardian, or two or more guardians for an adult.

Sub clause (2) provides that if the Tribunal appoints two or more guardians for an adult, they may be appointed jointly, severally or jointly and severally.

Sub clause (3) provides that two or more guardians are appointed jointly unless the Tribunal provides otherwise.

Clause 15 Eligibility for appointment

This clause provides that an individual is eligible for appointment as a guardian under clause 13 if the individual is at least 18 years of age, consents to the appointment and the Tribunal is satisfied the individual is suitable to be a guardian for the adult.

Sub clause (2) provides detailed considerations that the Tribunal must take into account when determining an individual’s suitability to be a guardian for the adult.

Clause 16 Scope of authority

This clause provides that in a guardianship order the Tribunal must specify the personal matters or financial matters, or both personal and financial matters, for which the guardian has authority.
If two or more guardians are appointed, the Tribunal may specify different matters for which different guardians have authority.

Clause 17 Restrictions, requirements and directions

Sub clause (1) provides that in a guardianship order the Tribunal may impose restrictions on the guardian’s authority, impose requirements to be complied with by the guardian in relation to the exercise of the guardian’s authority or give directions to the guardian about the exercise of the guardian’s authority.

Sub clause (2) provides that if two or more guardians are appointed the Tribunal may make different provision under subsection (1) for different guardians.

Clause 18 Order if adult has advance personal plan or enduring power of attorney

This clause provides that if the adult who is the subject of an application for a guardianship order has an advance personal plan or enduring power of attorney, the Tribunal must take the advance personal plan or enduring power of attorney into account in determining:

This clause provides that a guardian has the same right to documents and information that the represented adult would have if he or she had full legal capacity so long as it is relevant to the exercise of the guardian’s authority.

A person who has custody or control of a relevant document or information must give it to the guardian if requested, unless the information holder has a reasonable excuse not to do so. If the information holder does not comply with a request, the Tribunal may order the information holder to comply.

Clause 27 Information and things may be given to guardian

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 guardian instead of giving it to the represented adult.

Protection is provided under this clause to persons releasing information in good faith. The release of the information in accordance with this clause will not breach any professional code of conduct and persons will not be civilly or criminally liable.

This clause requires a guardian to keep reasonable records in relation to the exercise of the guardian’s authority and comply with any record keeping and reporting requirements prescribed by regulation under this Bill.

Clause 29 Property to be managed as if trust property

This clause stipulates that a guardian who has financial management powers must deal with the represented adult's property as if it were trust property held by the guardian 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. To avoid any confusion section 24A of the Trustee Act has been expressed to not apply.

Clause 30 Gifts

This clause allows a guardian who has authority for financial matters to make a gift from the represented adult's property if the gift 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 is reasonable in the circumstances.

The Tribunal may specifically restrict a guardian’s authority to make gifts or alternatively authorise the giving of gifts that are not otherwise permitted by this clause.

This clause provides that a guardian who has authority for financial matters may provide from the represented adult's property for the needs of a dependant if the provision 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 provision is reasonable in the circumstances. The inclusion of this clause is also to support the represented adult’s participation in everyday life and to give effect to what the adult would have done if their decision making capacity was not impaired.

This clause provides that the Tribunal may specify in a guardianship order or an order under section 33(2)(c) that a guardian, with authority for financial matters, prepare an asset management plan and as far as reasonably practicable, manage the represented adult’s property in accordance with the plan. The matters to be dealt with in the plan may be provided for in regulations.

Division 5 Orders about exercise of authority

Clause 33 Orders to guardians

This clause gives wide power to the Tribunal to make orders as to the exercise of a guardian’s authority.

Clause 34 Orders to former guardian

This clause gives authority to the Tribunal to make orders to former guardians to ensure the orderly transfer of decision-making authority from the former guardian to the adult or another agent for the adult (as appropriate) or if the represented adult has died, the orderly transfer of the adult’s estate to the executor or administrator of the estate.

Division 6 Orders about represented adult’s compliance

Clause 35 Represented adult to comply with guardian’s decisions

This clause allows the Tribunal to make an order where a guardian or another specified person is authorised to take specific measures or actions to ensure a represented adult complies with a guardian’s decision. For example, this will allow for a represented adult to be removed from a setting where they may be subject to abuse, exploitation or neglect but from which they refuse to be removed. Orders of this nature may only be made by the Tribunal and must be reassessed within 42 days of the order being made.

An order under this clause may only be made if the Tribunal is satisfied that authorising the specified measures to be taken is the only appropriate way to protect the represented adult from harm, neglect, abuse or exploitation.

The clause also provides protection to the guardian or any other person authorised by an order under this clause from any action for false imprisonment or assault, or any other action, liability, claim or demand arising out of the authorised measures.

Division 7 Reassessment and variation of guardianship orders

Clause 36 Guardianship order to be reassessed

This clause provides for a reassessment of a guardianship order to occur on, or as soon as practicable after, the reassessment date specified in the order.

It also allows for a represented adult or an interested person for the adult to apply to the Tribunal for a reassessment of the guardianship order at any time.

Clause 37 Matters to be considered on reassessment

Reassessments are an important safeguard for represented adults to ensure that guardianship orders are relevant to the adult’s current decision-making capacity. Impaired decision-making capacity may be time or matter specific. A guardianship order is not presumed to be permanent or ongoing and a reassessment allows the Tribunal to consider all of the circumstances relevant to the represented adult and decide if there should be any variation to the guardianship order, including to the appointed guardians or if the order should be revoked.

Clause 38 Outcome of reassessment

This clause gives the Tribunal power upon completion of a reassessment to confirm the guardianship order, vary the order, revoke the order and make another one in its place or revoke the order completely.

Clause 39 Variation or revocation of guardianship order
This clause gives wide power to the Tribunal to vary a guardianship order as it considers appropriate. The Tribunal may do so by its own initiative or on application.

A guardianship order may only be revoked after the Tribunal has conducted a reassessment.

Division 8 Duration of orders and appointment

Clause 40 Duration of guardianship order

This clause provides certainty as to the commencement and duration of guardianship orders. It makes it clear that a guardianship order commences when it is made (except in the case of an order for a young person which does not commence until the young person turns 18). Accordingly, an order can only be made for a person who currently has impaired decision-making capacity – not a person who may have impaired decision-making capacity in the future. It also states the guardianship order will continue until its expiry date (if specified on the order), the order is revoked by the Tribunal or the represented adult dies.

Clause 41 When appointment of guardian ends

This clause provides that a person ceases to be a guardian if the person dies, the person resigns by giving written notice to the Tribunal, the period of appointment ends, the guardianship order appointing the person ceases to be in force or is varied so as to terminate the person’s appointment or the person’s appointment is terminated because the person has been found guilty of an offence against this Bill.

Clause 42 Notification requirements

This clause provides that the death of a represented adult or a guardian must be notified to the Tribunal and the Public Guardian.

Clause 43 Effect of appointment of joint guardians for matter ceasing

This clause outlines the effect if a joint guardian ceases to be a guardian for an adult. It provides that if there were two or more joint guardians and one ceases to be a guardian, the remaining person becomes the sole guardian for the matter or if there were three or more joint guardians and one ceases to be a guardian, the remaining two or more joint guardians continue as joint guardians for the matter. It provides certainty in these circumstances and the order is varied automatically without the need to return to the Tribunal for a reassessment of the order.

Clause 44 Effect of appointment of sole guardian for matter ceasing

This clause provides that if a sole guardian ceases to be a guardian and there is no other guardian with authority for the matter, the Public Guardian becomes the guardian for the adult, without the need to return to the Tribunal for a reassessment of the order.

Clause 45 Guardian temporarily unable to act

This clause gives the Public Guardian authority to act as guardian for a represented adult if the adult’s guardian becomes temporarily unable to act. It ensures the continuity of decision-making authority for represented adults without the need to return to the Tribunal for a reassessment of the order.

The term ‘unable to act’ is defined for the purpose of this clause.

Clause 46 Registrar to update guardianship order

This clause authorises the Registrar of the Tribunal to update a guardianship order if there are specific changes to the guardianship arrangements. A former guardian, the represented adult or an interested person for the represented adult may apply to have a guardianship order updated.

Division 9 Reimbursement and remuneration

Clause 47 Reimbursement of expenses

This clause provides that a guardian is entitled to reimbursement from the represented adult, as approved by the Tribunal, for reasonable expenses incurred in acting as a guardian. The Tribunal has wide discretion to provide approval for a particular expense, for expenses up to a specified amount, for expenses generally, or otherwise as the Tribunal considers appropriate.

Clause 48 Remuneration for professional guardian

This clause states that a professional guardian is entitled to reasonable remuneration from the represented adult as approved by the Tribunal.

This clause defines a professional guardian to mean the Public Trustee, the Public Guardian or an individual who carries on the business or providing services as a guardian.

Clause 49 Reimbursement and remuneration for other services provided by guardian to represented adult

This clause recognises that there may be occasions when a person who is a guardian also provides other services to the represented adult. A guardian is only entitled to reimbursement of expenses or remuneration for providing other services as approved by the Tribunal.

The Tribunal can only give approval for reimbursement or remuneration if it is reasonable in the circumstances for the person who is the guardian to also be providing the other services, and the amount to be paid is reasonable.

This clause provides protection to guardians in circumstances where they are unaware of their entitlement to act or not to act, providing they act in good faith and have a reasonable belief of the relevant circumstances. It is a necessary protection to enable guardians to make decisions without imposing an unrealistic burden of inquiry on the guardian on every occasion that they exercise their decision making authority.

Clause 51 Protection for guardian in financial matters

This clause is a consequential amendment resulting from the repeal of section 16 of the Adult Guardianship Act. This clause provides protection from civil liability to guardians with authority for financial matters, when acting in good faith and within the scope of the guardians’ authority, in relation to any contract entered into, or other acts done or omitted to be done in relation to a financial matter on behalf of the represented adult.

Clause 52 Tribunal unaware of advance personal plan or enduring power of attorney when making guardianship order

This clause provides clarity in the circumstance where a guardianship order is made without the Tribunal having knowledge of an advance personal plan or enduring power of attorney. It gives legal effect to any orders made by the Tribunal and any exercise of authority by a guardian under a guardianship order in these circumstances.

Part 3 Interstate orders

Division 1 Preliminary matters

Clause 53 Definitions

This clause defines the terms ‘corresponding law’, ‘interstate order’ and ‘registered order’ for the purpose of Part 3 of this Bill.

Division 2 Registration of interstate orders

Clause 54 Tribunal may register interstate order

This clause gives power to the Tribunal to register an interstate order without requiring an application for a guardianship order to be made in the Northern Territory. It also gives power to the Tribunal, upon registering an interstate order, to vary it, including to appoint a person in the Northern Territory as an additional guardian or make orders to the guardians as to the exercise of their authority.

An application to register an interstate order may be made by the adult to whom the order relates or an interested person for the adult.

Clause 55 Duration of registration

This clause confirms that an interstate order becomes a registered order when it is registered and ceases to be a registered order when it ceases to be in force in the jurisdiction in which it was made or it ceases to be in force in the Northern Territory because it expires, it is revoked by the Tribunal or the represented adult dies.

Clause 56 Effect of registered order

This clause provides that a registered order has the same legal standing in the Northern Territory as a guardianship order made under this Bill.

A person appointed under a registered order does not have any greater authority in the Northern Territory than that person had in the jurisdiction in which the order was made.

Clause 57 Application of Act to registered order

This clause provides that this Bill applies to a registered order as if it were a guardianship order made under this Bill. The reassessment date for a registered order is one year after the date on which it is registered.

Clause 58 Notification of tribunal or other body in other jurisdiction

This clause provides that the Registrar must notify the court, tribunal, board or other body that made an interstate order of the registration of the order, any variation to the order or the order ceasing to be in force in the Northern Territory.

Division 3 Administrative matters

Clause 59 Minister to make arrangements

This clause provides that the Minister may make arrangements with the Minister of another jurisdiction responsible for the administration of a corresponding law for the purpose of giving effect to this Part or equivalent provisions of the corresponding law.

Part 4 Public Guardian

Division 1 Office of Public Guardian

Clause 60 Public Guardian

This clause creates the position of Public Guardian.

Clause 61 Functions

This clause provides comprehensive detail as to the functions of the Public Guardian.

Clause 62 Compliance with guardianship principles

This clause confirms that the Public Guardian must act in accordance with the guardianship principles.

Clause 63 Independence

This clause provides that the Public Guardian is an independent position and is not subject to direction in relation to the way in which the Public Guardian’s functions are performed.

To ensure equity and accountability between all guardians, subclause (2) provides that if the Public Guardian is a guardian for an adult, then in that capacity the Public Guardian is subject to the supervision and direction of the Tribunal to the same extent as any other guardian.

Division 2 Public Guardian’s powers

Clause 64 General powers

This clause provides the Public Guardian with very broad powers necessary to perform the functions of the Public Guardian.

Clause 65 Information gathering power

This clause gives power to the Public Guardian to request in writing that a person give a document or information to the Public Guardian and/or answer questions asked by the Public Guardian. The Public Guardian must reasonably believe that the person has a document or information that is relevant to the performance or exercise of the Public Guardian’s functions or powers under this Bill.

It is an offence of strict liability not to comply with a request under this clause. However, it is a defence to a prosecution under this clause if the person has a reasonable excuse for not complying with the request.

Subclause (3) protects any person, who in good faith, gives a document or information under this clause, from any civil or criminal liability or from breach of any professional code of conduct.

Clause 66 Obtaining health assessment

This clause provides that in performing its functions under this Bill the Public Guardian may require information relating to the health of an adult. This clause allows the Public Guardian to request in writing that the adult obtain and provide to the Public Guardian a report on the health matter from a health care provider chosen by the Public Guardian or the adult. If the Public Guardian is satisfied that it is reasonable in the circumstances to do so, the Public Guardian may pay the reasonable expenses incurred by the adult in obtaining the report.

Clause 67 Health assessment order

This clause gives the Tribunal power, in certain circumstances, to order an adult to submit to a health examination and for a report to be provided to the Public Guardian. The Tribunal may also include orders regarding the payment of the health care provider’s fees. This power is to ensure the fulfilment of the Public Guardian’s functions and the overall guardianship framework, despite an adult either not willing to comply with a request from a Public Guardian for a health assessment or lacking the capacity to consent to the assessment.

Division 3 Appointment of Public Guardian

Clause 68 Appointment of Public Guardian

This clause provides that the appointment of the Public Guardian is to be made by the Administrator by notice in the Gazette and may only be made upon the recommendation of the Minister.

The Minister’s recommendation must be made on the basis that the person has the qualifications or experience relating to the functions of the Public Guardian and is committed to advancing the interests of persons with impaired decision-making capacity and promoting the guardianship principles.

Clause 69 Term of appointment

This clause provides that the appointment of the Public Guardian is to be for a period of five years or a shorter period specified in the appointment and is eligible for reappointment.

Clause 70 Conditions of appointment

This clause provides that the Administrator will determine the conditions of appointment of the Public Guardian including remuneration, expenses and allowances.

The Public Guardian may be granted leave of absence by the Minister and on the conditions determined by the Minister.

Clause 71 Resignation

This clause provides that the Public Guardian may resign from office by giving written notice to the Administrator.

Division 4 Administrative matters

Clause 72 Delegation

This clause authorises the Public Guardian to delegate any of the Public Guardian’s functions or powers to a person. The delegation must be in writing.

Clause 73 Staff and facilities for Public Guardian

This clause provides that the Chief Executive Officer must provide staff and facilities to the Public Guardian to enable the Public Guardian to properly perform the functions of the office.

To confirm the independence of the office of the Public Guardian subclause (2) provides that a staff member provided to the Public Guardian is subject only to the direction of the Public Guardian or another such staff member.

Clause 74 Annual report

This clause provides that the Public Guardian must prepare and give to the Minister a report on the Public Guardian’s functions during each financial year. This clause details the matters that must be included in the report and provides that the report must be given to the Minister by 31 October following the end of the financial year and a copy must be tabled in the Legislative Assembly within six sitting days after the Minister receives the report.

Clause 75 Protection from liability

This clause provides protection from any civil or criminal liability by a person in the exercise of a power or a performance of function as the Public Guardian if the person acted in good faith.

This clause does not affect the liability of the Northern Territory in relation to any act or omission.

Part 5 Civil and Administrative Tribunal

Division 1 Preliminary matters

Clause 76 Definitions

This clause provides definitions for the terms ‘proceedings’, ‘publication’ and ‘Tribunal Act’ for the purpose of Part 5 of this Bill.

Division 2 Jurisdiction of Tribunal

Clause 76 Jurisdiction of Tribunal

The Tribunal has original jurisdiction to deal with matters under this Bill.

Clause 78 Tribunal to act in accordance with guardianship principles

This clause provides that the Tribunal must act in accordance with the guardianship principles when exercising its jurisdiction in relation to a matter under this Bill.

Division 3 General matters about proceedings

Clause 79 How proceedings to be commenced

This clause provides that an application for a guardianship order must be commenced by an application made in accordance with the Tribunal Act.

An application may be made by the adult to whom the proceedings relate or an interested person for the adult.

Clause 80 Proceedings not open to public

This clause provides that proceedings for guardianship orders will not be open to the public. It is prohibited to publish the name, address or visual image of a person appearing in a proceeding or evidence given in proceedings. In certain circumstances the Tribunal may authorise the publication of evidence given in proceedings but this authorisation must be subject to the condition that the publication does not contain anything likely to identify any person concerned in the proceedings.

This provision is consistent with protection of the represented adult’s right to confidentiality of information about himself or herself which is included as one of the relevant considerations in the guardianship principles.

Clause 81 Parties

This clause interacts with section 127 of the Tribunal Act. Together they confirm that the parties in a guardianship proceeding is the adult to whom the proceedings relate, any guardian or proposed guardian for the adult and the Public Guardian. There may be proceedings in which the Public Guardian is not the applicant or a guardian or proposed guardian for the adult and there is no reason for the Public Guardian to be a party to the proceedings. In these circumstances the Public Guardian may inform the Tribunal in writing that they do not wish to be a party.

Under section 128 of the Tribunal Act the Tribunal has the power to order the Public Guardian to be joined as a party to the proceedings.

Clause 82 Representation

This clause authorises another person, such as a delegate or a staff member of the Public Guardian, to appear on behalf of the Public Guardian at guardianship hearings to which the Public Guardian is a party.

Clause 83 Public Guardian to ensure information is presented

This clause authorises the Tribunal to make orders requiring the Public Guardian to conduct an inquiry or investigation, or otherwise to take all reasonable steps, to ensure that any information relevant to any proceedings, is presented to the Tribunal. Although the functions of the Public Guardian already include this investigative function there will be some proceedings to which the Public Guardian is not a party and therefore this allows the Tribunal to make orders so that the inquiry or investigation may be conducted by the Public Guardian and the proceeding progressed.

Clause 84 Reasons may be given orally

This clause states that the Tribunal may give the reasons for their decision orally to the parties however, a party to the proceedings may also apply to the Tribunal to give the reasons for their decision in writing. This application must be made within 28 days of the reasons being given orally and the Tribunal must provide their written reasons within 28 days after the application (for written reasons) is made.

Clause 85 No fees

No application fees or other fees are payable in relation to any proceedings under this Bill.

Part 6 Enforcement

Division 1 Offences

Clause 86 Falsely representing to be guardian

Subclause (1) provides that a person commits an offence if they falsely represent that they or another person are a guardian or a guardian with authority for a particular matter.

Subclause (2) provides that a person commits an offence if in addition to subclause (1) they do so to obtain a benefit for themselves or another person.

Provides that a guardian commits an offence if they intentionally engage in conduct as a guardian and contravene clause 22 of this Bill which requires the guardian to act in accordance with the guardianship principles, comply with any orders of the Tribunal and with this Bill, cooperate with any other agents and act with honesty, care, skill and diligence. The guardian must also be reckless as to the result of their conduct.

Subclause (2) outlines that a guardian commits an offence if they intentionally engage in conduct in the exercise of the guardians authority and the conduct results in a contravention of clause 22 of this Bill and the guardian is reckless as to the result and the guardian engages in the conduct with the intention to obtain a benefit for themselves or another person.

Clause 88 Inducing guardian to exercise authority improperly

Subclause (1) provides that person commits an offence if they intentionally induce a guardian to contravene clause 22 of this Bill.

Subclause (2) provides that a person commits an offence if they intentionally induce a guardian to contravene clause 22 of this Bill with the intention to obtain a benefit for themselves or another person.

Clause 89 Misleading information

Provides that a person commits an offence if the person knowingly gives information or a document that is misleading to a person who they know to be an official and that person is acting in an official capacity.

Subclause (3) provides that subclauses (1) and (2) are offences of strict liability.

Subclause (4) provides that subclause (2) does not apply if the person draws to the official’s attention the misleading aspect and reasonably gives information to remedy the misleading aspect.

Subclause (5) defines terms used in this section relating to acting in an official capacity, misleading information and official.

Clause 90 Unauthorised publication of information

Subclause (1) provides that a person commits an offence if the person intentionally engages in conduct that results in the publication of identifying information about a person who is subject to proceedings before the Tribunal or enables to identity of the person to be determined and the person is reckless as to the result.

Subclause (2) provides that subclause (1)(b)(ii) does not apply if the publication has been authorised by the Tribunal under clause 80(3).

Clause 91 Unauthorised disclosure of confidential information

Subclause (1) provides that a person commits an offence if the person obtains information in the course of performing functions connected with the administration of this Bill and the person intentionally engages in conduct which results in the disclosure of information and the person is reckless as to the result.

Subclause (2) provides that this is an offence of strict liability.

Subclause (3) provides that subclause (1) does not apply in certain circumstances.

Clause 92 Transfer of authority or estate by former guardian

Subclause (1) provides that a person who ceases to be a guardian for an adult must take all reasonable steps to provide for the orderly transfer of decision-making authority to the adult or to another agent or if the adult has died, the orderly transfer of the adult’s estate to the executor or administrator of the estate.

Subclause (2) provides that it is an offence if a person intentionally engages in conduct which results in contravention of subclause (1) and the person is reckless as to the result.

Clause 93 Alternative verdicts

This clause provides that if a trier of fact cannot be satisfied beyond reasonable doubt that a person committed a greater offence in clauses 86(2), 87(2) or 88(2) then it does not preclude them from finding the person guilty of an alternative offence.

Division 2 Consequences of finding of guilt

Clause 94 Termination of appointment as guardian and disqualification

This clause provides that in addition to any penalty imposed by a court in relation to a finding of guilt of an offence against this Bill, the Tribunal may also terminate a guardian’s appointment or disqualify the person from being a guardian.

Clause 95 Payment of compensation for loss

This clause provides that if a person is convicted of an offence against clauses 86, 87 or 88 and the Tribunal is satisfied that the offence caused loss to the represented adult, the Tribunal may order the offender to pay compensation to the represented adult, or if the adult has died to their estate.

Division 3 Legal proceedings

Clause 96 Who may commence prosecution

This clause provides that offences for proceedings against this Bill may only be commenced by the Public Guardian or a person authorised by the Minister.

Clause 97 Time for commencing prosecution

This clause provides that proceedings for simple offences must be commenced within two years from the date the Public Guardian first became aware of the offence.

Part 7 Miscellaneous matters

Clause 98 Regulations

This clause provides that the Administrator may make regulations under this Bill.

Part 8 Repeal and transitional matters for Guardianship of Adults Act 2016

Division 1 Repeal

Clause 99 Adult Guardianship Act repealed

This clause provides that the Adult Guardianship Act 1988 will be repealed upon commencement of this Bill.

Division 2 Transitional matters

Clause 100 Definitions

This clause provides definitions for the terms ‘commencement’, ‘Court’ and ‘repealed Act’ for the purpose of Part 8, Division 1 of this Bill.

Clause 101 Existing guardianship orders continue

Subclause (1) provides that when this Bill commences any existing guardianship orders under the Adult Guardianship Act will become guardianship orders under this Bill.

Subclause (2) confirms the authority that a guardian will have in accordance with this Bill.

Subclause (3) the reassessment date for existing guardianship orders was amended to be the review date on the existing order, or if there is no review date, within three years of the commencement of the legislation.

Clause 102 Pending applications for guardianship order

This clause provides that any application for a guardianship order that is before the Local Court at the commencement of this Bill will continue to be determined by the Local Court.

Clause 103 Pending reviews

This clause provides that if there is any review of a guardianship order before the Local Court at the commencement of this Bill the Local Court must complete the review and make any orders it considers appropriate.

Clause 104 Other applications

This clause provides that if there is any application in relation to a guardianship order that is before the Local Court at the commencement of this Bill the Local Court must deal with and determine the application.

Part 9 Consequential and related amendments

Division 1 Advance Personal Planning Act

Clause 105 Act amended

This clause provides that Part 9, Division 1 of this Bill amends the Advance Personal Planning Act.

Clause 106 Section 3 amended

This clause amends section 3 of the Advance Personal Planning Act.

Clause 107 Section 39A inserted
This clause inserts a new provision, section 39A into the Advance Personal Planning Act. Section 39A provides that if a health care provider proposes to provide health care for an adult and there is a guardian with decision making authority for health care matters, then this is prima facie evidence for the purposes of Part 4 of the Advance Personal Planning Act, that the person has impaired decision making capacity and may be relied upon by the health care provider. The inclusion of this provision provides clarity to health care providers in the circumstance where a guardian is appointed for an adult who is seeking health care.

Clause 108 Section 43 amended

This clause amends section 43 of the Advance Personal Planning Act.

Clause 109 Section 46 amended

This clause amends section 46 of the Advance Personal Planning Act.

Division 2 Unit Title Schemes (Management Modules) Regulations

Clause 110 Regulations amended

This clause provides that Part 9, Division 2 of this Bill amends the Unit Titles Schemes (Management Modules) Regulations

Clause 111 Schedule 1, clause 46 replaced

This clause provides that Schedule 1, clause 46 of the Unit Titles Schemes (Management Modules) Regulations has been amended to remove any reference to a guardian and the Adult Guardianship Act.

Clause 112 Schedule 2, clause 46 replaced

This clause provides that Schedule 2, clause 46 of the Unit Titles Schemes (Management Modules) Regulations has been amended to remove any reference to a guardian and the Adult Guardianship Act.

Clause 113 Schedule 3, clause 37 replaced

This clause provides that Schedule 3, clause 37 of the Unit Titles Schemes (Management Modules) Regulations has been amended to remove any reference to a guardian and the Adult Guardianship Act.

Division 3 Unit Titles (Management Modules) Regulations

Clause 114 Regulations amended

This clause provides that Part 9, Division 3 of this Bill amends the Unit Titles (Management Modules) Regulations

Clause 115 Schedule 1, clause 45 replaced

This clause provides that Schedule 1, clause 45 of the Unit Titles (Management Modules) Regulations has been amended to remove any reference to a guardian and the Adult Guardianship Act.

Clause 116 Schedule 2, clause 36 replaced

This clause provides that Schedule 2, clause 36 of the Unit Titles (Management Modules) Regulations has been amended to remove any reference to a guardian and the Adult Guardianship Act.

Division 4 Other laws amended

Clause 117 Other laws amended

This clause provides that the Schedule will amend the laws mentioned in it.

Division 5 Expiry of Part

Clause 118 Expiry of Part

This clause provides that Part 9 of this Bill will expire on the day after it commences.

Schedule Other laws amended

The schedule provides a summary of all other laws that will be amended by this Bill and how they will be amended. These amendments are necessary to ensure consistency between this Bill and existing laws.

Northern Territory Explanatory Statements

GUARDIANSHIP OF ADULTS BILL 2016