GUARDIANSHIP AND ADMINISTRATION ACT 1993

TABLE OF PROVISIONS

           Long Title
           PART 1
           PRELIMINARY
    1.      Short title
    2.      Commencement
    3.      Interpretation
    4.      Interaction of this Act with other Acts
    5.      Principles to be observed
           PART 2
           ADMINISTRATION

           DIVISION 1-THE GUARDIANSHIP BOARD

    6.      Establishment and constitution of the Board
    7.      President and Deputy Presidents
    8.      Panels
    9.      Vacancies in office of President or Deputy President or on
           panels
    10.     Allowances and expenses
    11.     Validity of acts of the Board
    12.     Decisions of the Board
    13.     Board may appoint assistants
    14.     Powers and procedures of the Board
    15.     Board may require reports
    16.     Annual report by Board

           DIVISION 2-THE REGISTRAR

    17.     The Registrar

           DIVISION 3-THE PUBLIC ADVOCATE

    18.     The Public Advocate
    19.     Appointment of Public Advocate
    20.     Term of office of Public Advocate, etc.
    21.     General functions of Public Advocate
    22.     Public Advocate may raise matters with the Minister and the
           Attorney-General
    23.     Delegation by Public Advocate
    24.     Annual report
           PART 3
           POWER TO APPOINT AN ENDURING GUARDIAN
    25.     Appointment of enduring guardian
    26.     Revocation of appointment by Board
    27.     Special powers to place and detain, etc., mentally incapacitated
           person


            PART 4          ORDERS FOR GUARDIANSHIP OR ADMINISTRATION

           DIVISION 1-INVESTIGATIONS

    28.     Investigations by Public Advocate

           DIVISION 2-GUARDIANSHIP ORDERS

    29.     Guardianship orders
    30.     Variation or revocation of guardianship order
    31.     Powers of guardian
    32.     Special powers to place and detain, etc., protected persons
    33.     Applications under this Division
    34.     Reciprocal guardianship arrangements

           DIVISION 3-ADMINISTRATION ORDERS

    35.     Administration orders
    36.     Variation or revocation of administration order
    37.     Applications under this Division
    38.     Copy of order must be forwarded to Public Trustee
    39.     Powers and duties of administrator
    40.     Administrator's access to wills and other records
    41.     Power of administrator to continue to act after death, etc., of
           protected person
    42.     Power of administrator to avoid dispositions and contracts of
           protected person
    43.     Where administration has disturbed entitlements of
           beneficiaries, the Supreme Court has power to intervene
    44.     Reporting requirements for private administrators
    45.     Reporting by Public Trustee
    46.     Remuneration of professional administrators
    47.     Registration of administration orders
    48.     Reciprocal administration powers with certain States

           DIVISION 4-PROVISIONS APPLICABLE TO GUARDIANS AND
           ADMINISTRATORS APPOINTED UNDER THIS PART

    49.     Withdrawal of applications
    50.     Criteria for determining suitability for appointment
    51.     Consent to appointment
    52.     Joint appointments
    53.     Commencement of orders
    54.     Termination of appointment
    55.     Board must give statement of appeal rights
    56.     Restriction of testamentary capacity of protected person
    57.     Review of Board's orders
          

 PART 5
           CONSENT TO MEDICAL AND DENTAL TREATMENT OF MENTALLY
           INCAPACITATED PERSONS


    58.     Application of this Part 59. Consent of certain persons is
           effective
    60.     Person must not give consent unless authorised to do so under
           this Part 61. Prescribed treatment not to be carried out without
           Board's
           consent
    63.     Board's consent must be in writing
           

PART 6
           APPEALS AND CASES STATED

           DIVISION 1-REVIEW OF REGISTRAR DECISIONS AND CASES STATED

    64.     Decisions of the Registrar are subject to review
    65.     Case may be stated to Supreme Court

           DIVISION 2-APPEALS TO THE ADMINISTRATIVE APPEALS COURT

    66.     Constitution of Administrative Appeals Court
    67.     Appeal from decisions of the Board
    68.     Powers of Court on appeal
    69.     Method of conducting appeal

           DIVISION 3-APPEALS TO THE SUPREME COURT

    70.     Appeals from decisions of Administrative Appeals Court
    71.     Method of conducting appeal

           DIVISION 4-GENERAL PROVISIONS

    72.     Operation of orders pending appeal
    73.     Representation upon appeals
           PART 7
           MISCELLANEOUS
    74.     Board may give advice, direction or approval
    75.     Administrators and guardians to keep each other informed
    76.     Illtreatment or neglect of person with mental incapacity
    77.     Offences in relation to certain certificates and reports
    78.     Medical practitioner, psychologist or other health professional
           cannot act under this Act in respect of a relative
    79.     Improper inducement to appoint enduring guardian
    80.     Duty to maintain confidentiality
    81.     Prohibition of publication of reports of proceedings
    82.     Service of notices
    82.     Service of notices
    83.     Protection from liability
    84.     Evidentiary provisions
    85.     Regulations
    86.     Expiry of Act

           SCHEDULE
           Instrument Appointing an Enduring Guardian
           APPENDIX 1
           LEGISLATIVE HISTORY
           APPENDIX 2
           DIVISIONAL PENALTIES AND EXPIATION FEES
           Guardianship and Administration Act 1993 No. 61 of 1993
           (Assented to 27 May 1993)*1*
           as amended by
           Guardianship and Administration (Approved Treatment Centres) Amendment
           Act
           1994 No. 8 of 1994 (Assented to 21 April 1994)
           Consent to Medical Treatment and Palliative Care Act 1995 No. 26 of
           1995
           (Assented to 27 April 1995)*2*
           Guardianship and Administration (Extension of Sunset Clause) Amendment
           Act 1997
           No. 75 of 1997 (Assented to 18 December 1997)
           *1* Came into operation 6 March 1995: Gaz. 2 March 1995, p. 734.
           *2* Came into operation 30 November 1995: Gaz. 30 November 1995, p.
   1500.     


GUARDIANSHIP AND ADMINISTRATION ACT 1993 - LONG TITLE 

      An Act to provide for the guardianship of persons unable to look after their own health, safety or welfare or to manage
      their own affairs and for the management of the estates of such persons; and for other purposes.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - PART 1 PART 1 PRELIMINARY

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 1 Short title

  1. This Act may be cited as the Guardianship and Administration Act 1993.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 2 Commencement

  2. This Act will come into operation on a day to be fixed by proclamation

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 3 Interpretation

  3. (1) In this Act, unless the contrary intention appears-

"administration order" means a full or limited administration order under this Act appointing an administrator of the whole or a part of a person's estate;
  "administrator"  means a person appointed as an administrator under an administration order;
  "authorised witness"  means-
  (a) a justice of the peace-1-; or
  (b) a commissioner for taking affidavits in the Supreme Court; or
  (c) a clergyman;
    "dental treatment"  means treatment or procedures carried out by a dentist in the course of dental practice;
  "dentist" means a person who is registered on the general register or specialist register under the Dentists Act 1984;
  "enduring guardian"  means a person appointed as an enduring guardian under Part 3;
  "guardian"   means a person appointed as a guardian under a guardianship order;
   "guardian appointed under this Act"  means an enduring guardian or a guardian appointed under a guardianship order;
   "guardianship order"  means an order under this Act placing a person under full or limited guardianship;
  "the Health Commission" means the South Australian Health Commission;

    "medical agent"  means a person appointed under a medical power of attorney under the Consent to Medical Treatment and Palliative Care Act 1995 to be the medical agent of another;
   "medical practitioner"  means a person who is registered on the general register under the Medical Practitioners Act 1983;
    "medical treatment"   means treatment or procedures administered or carried out by a medical practitioner in the course of medical or surgical practice and includes the prescription or supply of drugs;
    "mental incapacity"  means the inability of a person to look after his or her own health, safety or welfare or to manage his or her own affairs, as a result of-
  (a) any damage to, or any illness, disorder, imperfect or delayed development, impairment or deterioration, of the brain or mind; or
  (b) any physical illness or condition that renders the person unable to communicate his or her intentions or wishes in any manner whatsoever;
  "mentally incapacitated person"   means a person with a mental incapacity;
  "person to whom the proceedings relate",   in relation to any proceedings before the Board or a court, means the person who has or is alleged to have a mental incapacity or mental illness, or the protected person, as the case may be;
    "prescribed treatment"  means-
  (a) termination of pregnancy;
  (b) sterilisation;
  (c) any other medical treatment prescribed by the regulations;
   "property" means any legal or equitable interest in real or personal property;
    "protected person"  means the person the subject of a guardianship or administration order (or both) under this Act;
  "the Public Advocate" means the person holding or acting in the office of Public Advocate under this Act;
  "putative spouse" means a person who is a putative spouse within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not;
    "recognised advocate"  means a person who is, by instrument in writing, recognised by the Board as a person who is qualified to act as an advocate in proceedings before the Board for the person to whom the proceedings relate;
   "relative"   of a person means-
  (a) a spouse;
  (b) a parent;
  (c) a person (not being a guardian appointed under this Act) who acts in loco parentis in relation to the person;
  (d) a brother or sister of or over 18 years of age;
  (e) a son or daughter of or over 18 years of age;
  "spouse" includes a putative spouse;
  "sterilisation" means any treatment given to a person that results in, or is likely to result in, the person being infertile.

  (2) For the purposes of this Act, a woman who has ceased to menstruate will be regarded as being infertile.
Note:  For definition of divisional penalties (and divisional expiation fees) see Appendix 2.
-1- Section 34 of the Oaths Act 1936 provides that where provision is made by an Act for the attestation of an instrument by a justice, the provision is complied with if the witness is a justice, a proclaimed postmaster, a proclaimed bank manager or a proclaimed member of the Police Force.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 4
Interaction of this Act with other Acts

  4. Subject to any express provision of this Act or the provisions of any other Act, this Act is in addition to, and does not derogate from, any other Act.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 5
Principles to be observed

  5. Where a guardian appointed under this Act, an administrator, the Public Advocate, the Board or any court or other person, body or authority makes any decision or order in relation to a person or a person's estate pursuant to this Act or pursuant to powers conferred by or under this Act-
  (a) consideration (and this will be the paramount consideration) must be given to what would, in the opinion of the decision maker, be the wishes of the person in the matter if he or she were not mentally incapacitated, but only so far as there is reasonably ascertainable evidence on which to base such an opinion; and
  (b) the present wishes of the person should, unless it is not possible or reasonably practicable to do so, be sought in respect of the matter and consideration must be given to those wishes; and
  (c) consideration must, in the case of the making or affirming of a guardianship or administration order, be given to the adequacy of existing informal arrangements for the care of the person or the management of his or her financial affairs and to the desirability of not disturbing those arrangements; and
  (d) the decision or order made must be the one that is the least restrictive of the person's rights and personal autonomy as is consistent with his or her proper care and protection.


GUARDIANSHIP AND ADMINISTRATION ACT 1993 - PART 2 PART 2 ADMINISTRATION

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - DIVISION 1 DIVISION 1-
THE GUARDIANSHIP BOARD

   GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 6 Establishment and
constitution of the Board

  6. (1) The Guardianship Board is established.

  (2) Subject to this section, the Board will be constituted in relation to the hearing of any proceedings or the conduct of any other business of the following members:
  (a) the President or a Deputy President; and
  (b) a member of the panel constituted under section 8(1) and selected by the President or a Deputy President to be a member of the Board for the purpose of the hearing of those proceedings or the conduct of that business; and
  (c) a member of the panel constituted under section 8(2) and selected by the President or a Deputy President to be a member of the Board for the purpose of those proceedings or that business.

  (3) Members who constitute the Board for the purpose of hearing appeals from decisions or orders under the Mental Health Act 1993 will sit exclusively in that jurisdiction.

  (4) In selecting members from the panel constituted under section 8(1) for the purposes of an appeal or other proceedings under the Mental Health Act 1993, the President or Deputy President must select a psychiatrist.

  (5) The regulations may provide that, in relation to the exercise of specified functions, or in relation to matters of a specified class, the Board may be constituted of the President, a Deputy President or a member of a panel, sitting alone and, where the regulations so provide, the Board may be constituted accordingly.

  (6) A member of a panel who has a personal interest or a direct or indirect pecuniary interest in a matter before the Board is disqualified from participating in the hearing of the matter.

  (7) If a member of a panel on the Board dies or is for any other reason unable to continue with any proceedings before the Board, the Board constituted of the President or Deputy President who is presiding over the proceedings and the other panel member may, if the President or Deputy President so determines, continue and complete the proceedings.

  (8) The Board, separately constituted in accordance with this section, may sit simultaneously for the purpose of hearing and determining separate proceedings or conducting separate business of the Board.


GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 7
President and Deputy Presidents

  7. (1) There will be-
  (a) a President of the Board; and
  (b) such number of Deputy Presidents of the Board as the Minister thinks necessary or desirable for the purpose of the Board performing its functions properly and expeditiously.

  (2) The President and Deputy Presidents will be appointed by the Governor on terms and conditions fixed by the Governor.

  (3) The President and Deputy Presidents will be appointed for a term of office of five years and, on expiry of any such term, will be eligible for reappointment.

  (4) A person is not eligible for appointment as the President or a Deputy President unless he or she is-
  (a) a magistrate; or
  (b) a legal practitioner of not less than five years' standing (which may include legal practice in another State or Territory); or
  (c) a person who has retired from judicial or magisterial office held in this State or any other State or Territory.

  (5) If the President is absent or unable to act, a Deputy President nominated by the Minister may act in the office of President.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 8 Panels


  8. (1) The Governor may establish a panel consisting of persons from such professions as the Governor thinks relevant.

  (2) The Governor may establish a panel consisting of persons with expertise in representing or promoting the interests of mentally incapacitated persons or with expertise in such other fields as the Governor thinks relevant.

  (3) A member of a panel will be appointed for a term of office, not exceeding three years, specified in the instrument of appointment and, subject to subsection (4), will be eligible for reappointment on the expiry of any such term.

  (4) A person cannot hold office as a member of a panel for more than two terms if those terms are consecutive, except that an appointment for a third consecutive term of office may be made if it is only for the purposes of the completion of part-heard proceedings.

  (5) The Governor may make appointments from time to time for the purpose of maintaining or increasing the membership of panels established under this section.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 9 Vacancies in
office of President or Deputy President or on panels

    9. (1) The Governor may remove the President, a Deputy President or a member of a panel from office for-
  (a) mental or physical incapacity to carry out official duties satisfactorily; or
  (b) neglect of duty; or
  (c) dishonourable conduct.

  (2) A person ceases to be the President, a Deputy President or a member of a panel if the person-
  (a) dies; or
  (b) completes a term of office and is not reappointed; or
  (c) resigns by notice in writing addressed to the Minister; or
  (d) is removed from office under subsection (1).

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 10
Allowances and expenses

  10. A member of the Board or a panel is entitled to such allowances and expenses as the Governor may from time to time determine.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 11 Validity of acts
of the Board

  11. An act or proceeding of the Board is not invalid only by virtue of a
vacancy in the membership of, or a defect in the appointment of a person to,
the Board or a panel from which members of the Board are drawn.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 12  Decisions of the
Board
 
12. (1) In any proceedings before the Board under this Act or any other Act
where the Board is constituted of two or more members-
  (a) the President or Deputy President will preside; and
  (b) any question of law or procedure will be determined by the President or
Deputy President and any other question by unanimous or majority decision of
the members.

  (2) Where the Board is constituted of a panel member sitting alone, any
question of law that arises must be referred to the President or a Deputy
President for decision and any decision made on such a reference is a decision
of the Board.

  (3) The Board must act according to equity and the substantial merits of the
case without regard to technicalities or legal forms and is not bound by the
rules of evidence but may inform itself on any matter in such manner as it
thinks fit.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 13 Board may appoint
assistants

  13. The Board may, for the purpose of any particular proceedings, appoint
such person or persons to assist it in conducting (but not determining) those
proceedings as the Board thinks fit.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 14 Powers and
procedures of the Board

  14. (1) The Board may, for the purposes of proceedings before the Board
(whether under this Act or any other Act)-
  (a) by summons signed on behalf of the Board by a member of the Board or the
Registrar, require the attendance of a person before the Board; or
  (b) by summons signed on behalf of the Board by a member of the Board or the
Registrar, require the production to the Board of any relevant books, papers
or documents; or
  (c) inspect any books, papers or documents so produced and retain them for
such reasonable period as it thinks fit and makes copies of any of them or any
of their contents; or
  (d) require any person to make an oath or affirmation to answer truthfully
all questions put by a member of the Board, or a person assisting or appearing
before the Board, relating to a matter before the Board; or
  (e) require any person appearing before the Board to answer any relevant
questions put by a member of the Board or by a person assisting or appearing
before the Board.

  (2) Subject to subsection (3), a person who-
  (a) has been served with a summons to appear before the Board and fails,
without reasonable excuse, to attend in obedience to the summons; or
  (b) has been served with a summons to produce books, papers or documents and
fails, without reasonable excuse, to comply with the summons; or
  (c) wilfully insults the Board, any member of the Board or a person
assisting the Board, or disrupts the proceedings of the Board; or
  (d) refuses to be sworn or to affirm, or to answer any relevant question
when required to do so by the Board,
is guilty of an offence.
Penalty: Division 5 fine.

  (3) A person who appears as a witness before the Board or produces books,
papers or documents to the Board has the same protection as a witness in
proceedings before the District Court.

  (4) Subject to subsection (5), the Board must give the following persons
reasonable notice of the time and place of the hearing of the proceedings:
  (a) the applicant; and
  (b) the person to whom the proceedings relate; and
  (c) the Public Advocate; and
  (d) such other persons as the Board believes have a proper interest in the
matter.

  (5) The Board is not obliged to give notice of proceedings to a person whose
whereabouts cannot, after reasonable enquiries, be ascertained.

  (6) The Board-
  (a) must give the applicant and the person to whom the proceedings relate a
reasonable opportunity to call or give evidence, to examine or cross-examine
witnesses and to make submissions to the Board; and
  (b) must give any other person-
    (i) to whom notice of the proceedings was given; or
    (ii) who satisfies the Board that he or she has a proper interest in
the matter,
a reasonable opportunity to make submissions to the Board.

  (7) Notwithstanding subsections (4) and (6), the Board may in any
proceedings, if satisfied that urgent action is required, make an order on an
interim basis without complying with those subsections.

  (8) An order made under subsection (7) has effect for such period, not
exceeding seven days, as the Board may direct.

  (9) A person is entitled to appear before the Board-
  (a) personally or by counsel; or
  (b) if he or she is the person the subject of the proceedings-
    (i) by the Public Advocate; or
    (ii) except where the proceedings are appeal proceedings-by a
recognised advocate; or
  (c) with the leave of the Board, by any other representative.

  (10) Subject to subsection (11), hearings before the Board are open
hearings.

  (11) In any proceedings before the Board, the Board has an absolute discretion-
  (a) to direct that no person other than-
    (i) the person to whom the proceedings relate and any person representing him or her in the proceedings; and
    (ii) witnesses or persons making submissions (while giving evidence or making those submissions); and
    (iii) officers of the Board or persons assisting the Board, be present in the room while the proceedings are being heard; or
  (b) to direct that a particular person (other than a person referred to inparagraph (a) not be present in the room while the proceedings are being heard.

  (12) The Board may make a determination in any proceedings in the absence of a party to the proceedings if satisfied that the party was given reasonable opportunity to appear but failed to do so.

  (13) The Registrar must, on the request of a person who has a right of appeal against a decision of the Board, or who satisfies the Registrar that he or she has a proper interest in the matter, furnish the person with a written statement of the Board's reasons for that decision, but only if the request is made within three months of the date of the decision.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 15 Board may require
reports

15. (1) The Board may require the person the subject of proceedings before the Board to submit to the Board within a specified time a psychiatric or psychological report as to his or her mental capacity or a medical report as to his or her health or any aspect of it.

  (2) If a person refuses or fails to comply with a requirement made under subsection (1) or is incapable of complying with such a request, the Public Advocate, a person authorised by the Minister for the purpose or a member of the police force may enter any place where the person is reasonably believed to be and apprehend the person, using only such force as is reasonably
necessary for the purpose, and take the person to a psychiatrist, psychologist or medical practitioner nominated by the Board for examination and assessment, the cost of which will be borne by the Board.

  (3) The powers under subsection (2) cannot be exercised except on the authority of a warrant issued by the President of the Board or a Deputy President of the Board.

  (4) A warrant cannot be issued under subsection (3) unless the person issuing it is satisfied, on information given on oath-
  (a) that reasonable grounds exist for suspecting that the person to whom the warrant relates has a mental incapacity; and
  (b) that a warrant is reasonably required in the circumstances.

  (5) The person executing a warrant under this section may be accompanied by such assistants as he or she considers necessary or desirable in the circumstances.

  (6) A person must not hinder or obstruct a person executing a warrant under this section, or a person accompanying that person. Penalty: Division 5 fine.


GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 16 Annual report by
Board

  16. (1) The Board must, not later than 30 September in each year, furnish the Minister with a report on the performance by the Board of its functions during the year ending on the previous 30 June.

  (2) A report furnished under this section must include prescribed particulars of all warrants issued under this Act by the President or Deputy Presidents during the year.

  (3) The Minister must, within 12 sitting days of receiving a report under subsection (1), cause a copy of the report to be laid before each House of Parliament.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - DIVISION 2 DIVISION 2-THE
REGISTRAR


GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 17 The Registrar

  17. (1) There will be a Registrar of the Board.

  (2) The Registrar will be a Public Service employee or a Health Commission employee.

  (3) The Registrar is the executive officer of the Board and-
  (a) has the powers and functions conferred or assigned by this Act or any other Act; and
  (b) may, with the approval of the President of the Board, exercise the jurisdiction of the Board in relation to matters of a prescribed class.

  (4) Where the Registrar exercises the jurisdiction of the Board in respect of a matter, the Registrar may, and must if the President so directs, refer the matter to the Board for determination by the Board.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - DIVISION 3 DIVISION 3-THE
PUBLIC ADVOCATE

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 18 The Public
Advocate

  18. There will be a Public Advocate.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 19 Appointment of
Public Advocate 

  19. (1) The Governor may, by notice published in the Gazette, appoint a person to be the Public Advocate.

  (2) Subject to this Act, the terms and conditions of appointment and employment (including salary and allowances) of the Public Advocate will be as determined by the Governor.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 20 Term of office
of Public Advocate, etc.

  20. (1) The Public Advocate will be appointed for a term of office of five years and, on the expiration of a term of office, is eligible for reappointment.

  (2) The office of Public Advocate becomes vacant if the Public Advocate-

  (a) dies; or
  (b) completes a term of office and is not reappointed; or
  (c) resigns by notice in writing to the Governor; or
  (d) is removed from office by the Governor under subsection (3).

  (3) The Governor may remove the Public Advocate from office for-
  (a) mental or physical incapacity to carry out official duties satisfactorily; or
  (b) neglect of duty; or
  (c) dishonourable conduct.


GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 20 Term of office
of Public Advocate, etc.

  20. (1) The Public Advocate will be appointed for a term of office of five years and, on the expiration of a term of office, is eligible for reappointment.

  (2) The office of Public Advocate becomes vacant if the Public Advocate-

  (a) dies; or
  (b) completes a term of office and is not reappointed; or
  (c) resigns by notice in writing to the Governor; or
  (d) is removed from office by the Governor under subsection (3).

  (3) The Governor may remove the Public Advocate from office for-
  (a) mental or physical incapacity to carry out official duties satisfactorily; or
  (b) neglect of duty; or
  (c) dishonourable conduct.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 21 General functions
of Public Advocate

    21. (1) The functions of the Public Advocate are-
  (a) to keep under review, within both the public and the private sector, all
programmes designed to meet the needs of mentally incapacitated persons;
  (b) to identify any areas of unmet needs, or inappropriately met needs, of
mentally incapacitated persons and to recommend to the Minister the
development of programmes for meeting those needs or the improvement of
existing programmes;
  (c) to speak for and promote the rights and interests of any class of
mentally incapacitated persons or of mentally incapacitated persons
generally;
  (d) to speak for and negotiate on behalf of any mentally incapacitated
person in the resolution of any problem faced by that person arising out of
his or her mental incapacity;
  (e) to give support to and promote the interests of carers of mentally
incapacitated persons;
  (f) to give advice on the powers that may be exercised under this Act in
relation to mentally incapacitated persons, on the operation of this Act
generally and on appropriate alternatives to taking action under this Act;
  (g) to monitor the administration of this Act and, if he or she thinks fit,
make recommendations to the Minister for legislative change;
  (h) to perform such other functions as are assigned to the Public Advocate
by or under this Act or any other Act.

  (2) In performing his or her functions the Public Advocate is not subject to
the control or direction of the Minister.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 22 Public Advocate
may raise matters with the Minister and the Attorney-General

  22. (1) The Public Advocate may, at any time, raise with the Minister and
the Attorney-General any concerns he or she may have over any matter arising
out of or relating to the performance of his or her functions under this Act
or any other Act.

  (2) If the Public Advocate so requests, the Attorney-General must cause a
report of any matter raised by the Public Advocate under subsection (1) to be
laid as soon as practicable before both Houses of Parliament.

  (3) The annual report furnished by the Public Advocate under this Act must
include a summary of any matters raised by the Public Advocate under
subsection (1).

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 23 Delegation by
Public Advocate

 
 

  23. (1) The Public Advocate may delegate any of his or her powers or
functions under this or any other Act to any Public Service employee or Health
Commission employee who has been assigned to assist the Public Advocate in the
performance of his or her functions.

  (2) A delegation under this section-
  (a) must be by instrument in writing; and
  (b) may be conditional or unconditional; and
  (c) is revocable at will; and
  (d) does not derogate from the power of the Public Advocate to act in any
matter.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 24 Annual report

  24. (1) The Public Advocate must, not later than 30 September in each year,
furnish the Minister with a report on the performance by the Public Advocate
of his or her functions during the year ending on the previous 30 June.

  (2) A report furnished under this section must include prescribed particulars of all applications made by the Public Advocate for the issue of a warrant under this Act during the year.

  (3) The Minister must, within 12 sitting days of receiving a report under subsection (1), cause a copy of the report to be laid before each House of Parliament.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - PART 3 PART 3 POWER TO
APPOINT AN ENDURING GUARDIAN


  GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 25 Appointment of
enduring guardian

  25. (1) A person of or over 18 years of age may, by instrument in writing,appoint a person as his or her enduring guardian.

  (2) An instrument is not effective to appoint an enduring guardian unless-
  (a) it is in the form set out in the schedule or in a form to similar effect; and
  (b) it has endorsed on it an acceptance in the form or to the effect of the acceptance set out in the schedule signed by the person appointed as the enduring guardian; and
  (c) it is witnessed by an authorised witness who completes a certificate in the form or to the effect of the certificate set out in the schedule.

  (3) A person is not eligible to be appointed as an enduring guardian unless he or she is of or over 18 years of age.

  (4) A person is not eligible to be appointed an enduring guardian if he or she is, in a professional or administrative capacity, directly or indirectly responsible for or involved in the medical care or treatment of the appointee and, if a person who is validly appointed as an enduring guardian becomes so responsible or involved, the appointment lapses.

  (5) Subject to the conditions (if any) stated in the instrument, an instrument appointing an enduring guardian-
  (a) authorises the appointee to exercise the powers at law or in equity of a guardian if the person who makes the appointment subsequently becomes mentally incapacitated; and
  (b) authorises the appointee, in that event, to consent to or refuse to consent to the medical treatment of the person except where the person has a medical agent who is reasonably available and willing to make a decision in the matter.

  (6) The powers conferred by an instrument appointing an enduring guardian must, unless the Board approves otherwise, be exercised in accordance with any lawful directions contained in the instrument.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 26 Revocation of
appointment by Board


  26. (1) The Board may, on an application under this section, revoke the appointment of an enduring guardian if-
  (a) the guardian seeks revocation of the appointment; or
  (b) the Board is satisfied that the guardian-
    (i) is not willing or able to act in that capacity; or
    (ii) has, in that capacity, acted in an incompetent or negligent manner or contrary to the principles stated by this Act.

  (2) An application under this section may be made by-
  (a) the mentally incapacitated person; or
  (b) the Public Advocate, on his or her own initiative, or at the request and on behalf of the mentally incapacitated person; or
  (c) the enduring guardian; or
  (d) a relative or medical agent of the mentally incapacitated person; or
  (e) an administrator of the mentally incapacitated person's estate; or
  (f) any other person who satisfies the Board that he or she has a proper interest in the welfare of the mentally incapacitated person.

GUARDIANSHIP AND ADMINISTRATION ACT 1993 - SECT 27 Special powers to
place and detain, etc., mentally incapacitated person

  27. Section 32 applies, with such modifications as may be necessary, to and in relation to an enduring guardian and the mentally incapacitated person with respect to whom he or she is empowered to act.

Disclaimer: Note: The information described here relates solely to operational matters in the Emergency Department.  Every effort has been made to verify the accuracy of the content. However, neither the author or the hospital will take responsibility for errors resulting from its use.  Please refer to your own departmental guidelines and verify all clinical decisions with a reliable source.  

Date Last Reviewed: 05/08/2004