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TASMANIA
__________
GUARDIANSHIP AND ADMINISTRATION
AMENDMENT BILL 2013
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Sections 32B, 32C and 32D inserted
32B. Right of enduring guardian to information
32C. Transactions that may involve conflict of duty
32D. Keeping of records, &c.
6. Section 34 amended (Revocation or amendment of appointment
by Board)
7. Section 90B inserted
90B. Transitional provisions consequent on Guardianship
and Administration Amendment Act 2013
8. Repeal of Act
[Bill 48]-XI
2
GUARDIANSHIP AND ADMINISTRATION
AMENDMENT BILL 2013
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
P. R. ALCOCK, Clerk of the House
19 September 2013
(Brought in by the Minister for Justice, the Honourable Brian
Neal Wightman)
A BILL FOR
An Act to amend the Guardianship and Administration Act
1995
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Guardianship and
Administration Amendment Act 2013.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
THIS BILL IS COGNATE WITH THE POWERS OF ATTORNEY AMENDMENT BILL 2013
[Bill 48] 3
Guardianship and Administration Amendment Act 2013
Act No. of
s. 3
3. Principal Act
In this Act, the Guardianship and
Administration Act 1995* is referred to as the
Principal Act.
4. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended as
follows:
(a) by inserting the following definition after
the definition of administrator in
subsection (1):
appointor, in relation to an enduring
guardian, means the person who
appointed the enduring guardian
to be the person's enduring
guardian;
(b) by inserting the following subsection
after subsection (2):
(3) In this Act, a reference to an
enduring guardian making or
entering into a transaction is to be
taken to be a reference to the
enduring guardian making a
decision, taking an action, giving
a consent or doing an act.
*No. 44 of 1995
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Guardianship and Administration Amendment Act 2013
Act No. of
s. 5
5. Sections 32B, 32C and 32D inserted
After section 32A of the Principal Act, the
following sections are inserted in Part 5:
32B. Right of enduring guardian to information
(1) An enduring guardian has a right -
(a) to all the information to which the
appointor is entitled; and
(b) if the appointor is unable by
reason of a disability to make
reasoned judgments in respect of
matters relating to his or her
personal circumstances, to all
information to which the
appointor would have been
entitled but for the disability -
if the information is reasonably required
for the purpose of exercising a power, or
determining whether to exercise a power,
of the enduring guardian.
(2) An enduring guardian has, if the
appointor is unable by reason of a
disability to make reasoned judgments in
respect of matters relating to his or her
personal circumstances, a right to obtain,
from a person who has possession of a
will of the appointor, a copy, of the will,
that is certified by the person.
(3) A person who has custody or control of
information, or a will, to which an
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Guardianship and Administration Amendment Act 2013
Act No. of
s. 5
enduring guardian has a right under
subsection (1) or (2), must, at the request
of the enduring guardian, disclose the
information to the enduring guardian or
provide to the enduring guardian a copy,
of the will, that is certified by the person.
(4) Subsections (1), (2) and (3) are subject to
any condition or contrary intention, or
express limitation, in the instrument of
appointment of the enduring guardian.
32C. Transactions that may involve conflict of
duty
(1) An enduring guardian may only enter
into a transaction that results, or may
result, in a conflict of interest, if -
(a) the instrument of appointment of
the enduring guardian specifies
that the transaction may, even
though it will or may result in a
conflict of interest, be entered
into by the enduring guardian; or
(b) the transaction is a member of a
class of transactions that the
instrument of appointment of the
enduring guardian specifies may,
even though the transactions will
or may result in a conflict of
interest, be entered into by the
enduring guardian; or
(c) the instrument of appointment of
the enduring guardian specifies
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Guardianship and Administration Amendment Act 2013
Act No. of
s. 5
that, even though such a
transaction will or may result in a
conflict of interest, any
transaction may be entered into
by the enduring guardian.
(2) For the purposes of subsection (1), a
conflict of interest is a conflict between -
(a) the duties of an enduring
guardian in respect of the
appointor; and
(b) either -
(i) the interests of the
enduring guardian, or a
relative, business
associate or close friend
of the enduring guardian;
or
(ii) another duty of the
enduring guardian.
32D. Keeping of records, &c.
(1) An enduring guardian must keep an
accurate record of all dealings and
transactions made by the person as the
enduring guardian.
Penalty: Fine not exceeding 20 penalty
units.
(2) A person who has ceased to be an
enduring guardian must -
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Guardianship and Administration Amendment Act 2013
Act No. of
s. 5
(a) retain, for at least 7 years after so
ceasing, an accurate record of all
dealings and transactions made as
the enduring guardian; or
(b) provide to the Board an accurate
record of all dealings and
transactions made as the enduring
guardian.
Penalty: Fine not exceeding 20 penalty
units.
(3) A person with a proper interest in the
matter may, in writing, request the Board
to exercise its power under subsection (4)
in relation to a person who is or was an
enduring guardian.
(4) The Board, after receiving under
subsection (3) a request in relation to -
(a) a person who is an enduring
guardian; or
(b) a person who was, within the
previous 7 years, an enduring
guardian and who has not
provided an accurate record to the
Board in accordance with
subsection (2)(b) -
may, by notice in writing to the person,
require the person to provide to the
Board, within the period of not less than
14 days specified in the notice, a
document setting out an accurate record
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Guardianship and Administration Amendment Act 2013
Act No. of
s. 6
of all dealings and transactions made by
the person as an enduring guardian.
(5) A person who receives a notice under
subsection (4) must provide to the Board,
before the end of the period specified in
the notice, a document setting out an
accurate record of all dealings and
transactions made by the person as the
enduring guardian.
Penalty: Fine not exceeding 20 penalty
units.
(6) A document provided to the Board by a
person in accordance with a notice under
subsection (4) -
(a) is to be in a form approved by the
Board; and
(b) is to be verified by a statutory
declaration that is signed by the
person; and
(c) is to be accompanied by other
evidence, if any, that the Board
specifies in the notice is required
to accompany the document.
6. Section 34 amended (Revocation or amendment of
appointment by Board)
Section 34(1A) of the Principal Act is amended
as follows:
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Act No. of
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(a) by omitting from paragraph (a) "donor"
and substituting "appointor";
(b) by omitting from paragraph (c) "donor"
and substituting "appointor".
7. Section 90B inserted
After section 90A of the Principal Act, the
following section is inserted in Division 6:
90B. Transitional provisions consequent on
Guardianship and Administration
Amendment Act 2013
(1) Section 32C applies to, and in relation to,
an enduring guardianship created before
that section commences, but only to, or
in relation to, the taking of an action, or
an action taken, after that section
commences.
(2) Section 32D applies to, and in relation to,
an enduring guardianship created before
that section commences, but only in
relation to a dealing or transaction made
after the section commences.
(3) Nothing in this section is to be taken to
limit the application of sections 32C and
32D to an enduring guardianship created
after section 32C or 32D, respectively,
commences.
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Guardianship and Administration Amendment Act 2013
Act No. of
s. 8
8. Repeal of Act
This Act is repealed on the three hundredth and
sixty fifth day from the day on which all of the
provisions on this Act commence.
Government Printer, Tasmania 11