Guardianship and Administration Regulations 2017


Tasmanian Crest
Guardianship and Administration Regulations 2017

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Guardianship and Administration Act 1995 .

10 October 2017

C. WARNER

Governor

By Her Excellency's Command,

ELISE ARCHER

Minister for Justice

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Guardianship and Administration Regulations 2017 .

2.   Commencement

These regulations take effect on 17 October 2017.

3.   Interpretation

In these regulations –
Act means the Guardianship and Administration Act 1995 ;
drug of addiction means a substance listed in Schedule 8 to the Poisons List;
health care professional includes a medical practitioner and a psychologist;
Poisons List has the same meaning as in the Poisons Act 1971 ;
psychologist means a person registered under the Health Practitioner Regulation National Law (Tasmania) in the psychology profession;
restricted substance means a substance listed in Schedule 4 to the Poisons List.
PART 2 - Applications under the Act
Division 1 - Applications generally

4.   Applications to be supported by report

(1)  An application made under the Act in respect of a person, other than an application under section 44, is to be supported by a report from a health care professional –
(a) detailing the disability of the person in respect of whom the application is made; and
(b) made in accordance with subregulation (2) .
(2)  The report referred to in subregulation (1) is to state the opinion of the health care professional as to whether the disability affects the ability of the person concerned to make reasonable judgements in respect of one or more of the following:
(a) his or her person;
(b) his or her circumstances;
(c) his or her financial affairs.
(3)  If a report is not provided in accordance with subregulation (1) , a statement must be supplied detailing the reasons why the report cannot be provided.

5.   Applications to be supported by declaration

(1)  An application made under the Act is to be supported by a declaration by the person making the application that –
(a) all the information contained in the application is true and accurate; and
(b) the application is not misleading; and
(c) no details relevant to the application have been omitted.
(2)  A person must not make an application under the Act that is false or misleading in a material particular.

Penalty:  Fine not exceeding 10 penalty units.

Division 2 - Specific applications

6.   Application for guardianship order

For the purposes of section 19(2)(b) of the Act, the following information is the prescribed information:
(a) the name and address of each of the following persons:
(i) the applicant;
(ii) the person in respect of whom the application is made;
(iii) the proposed guardian;
(iv) any other person who is concerned for the welfare of the person in respect of whom the application is made;
(v) a health care professional who has diagnosed the disability of the person in respect of whom the application is made;
(b) the telephone number and email address of each person referred to in paragraph (a) , if known;
(c) the reasons why the applicant believes a guardian is needed;
(d) details of the financial affairs of the person in respect of whom the application is made;
(e) details of any power of attorney in force under the Powers of Attorney Act 2000 in respect of the person in respect of whom the application is made, if known.

7.   Application for revocation or amendment of appointment of enduring guardian

For the purposes of section 34(2)(c) of the Act, the following information is the prescribed information:
(a) the name and address of each of the following persons:
(i) the applicant;
(ii) the enduring guardian in respect of whom the application is made;
(iii) the appointer of the enduring guardian;
(b) the telephone number and email address of each person referred to in paragraph (a) , if known;
(c) the reasons for seeking the revocation or amendment;
(d) details of any power of attorney in force under the Powers of Attorney Act 2000 in respect of the appointer of the enduring guardian, if known.

8.   Application for Board's consent to medical or dental treatment

For the purposes of section 44(2)(c) of the Act, the following information is the prescribed information:
(a) the name and address of each of the following persons:
(i) the applicant;
(ii) the person in respect of whom the application is made;
(iii) the registered practitioner who recommended the treatment that is proposed;
(iv) the registered practitioner who intends to carry out the treatment;
(v) a person responsible for the person in respect of whom the application is made;
(vi) any other person who is concerned for the welfare of the person in respect of whom the application is made;
(vii) a health care professional who has diagnosed the disability of the person in respect of whom the application is made;
(b) the telephone number and email address of each person referred to in paragraph (a) , if known;
(c) details of –
(i) the medical or dental condition requiring treatment; and
(ii) the proposed treatment; and
(iii) the date, time and place of the proposed treatment, if known;
(d) the views of the person, in respect of whom the application is made, on the proposed treatment;
(e) a report from a registered practitioner giving details of –
(i) the disability of the person in respect of whom the application is made; and
(ii) how the disability affects the capacity of that person to give a consent to the proposed treatment; and
(iii) whether the person concerned is, or is likely to become, capable of consenting to the treatment; and
(iv) the condition and proposed treatment of the person in respect of whom the application is made; and
(v) the risks to that person of carrying out the treatment; and
(vi) the risks to that person of failure to carry out the treatment; and
(vii) whether the proposed treatment can be postponed on the ground that better treatment may become available; and
(viii) any alternative treatment available to that person.

9.   Application for administration order

For the purposes of section 50(3)(b) of the Act, the following information is the prescribed information:
(a) the name and address of each of the following persons:
(i) the applicant;
(ii) the person in respect of whose estate the application is made;
(iii) the proposed administrator;
(iv) any guardian, including an enduring guardian, of the person in respect of whose estate the application is made;
(v) any other person who is concerned for the welfare of the person in respect of whose estate the application is made;
(vi) any health care professional who has diagnosed the disability of the person in respect of whose estate the application is made;
(b) the telephone number and email address of each person referred to in paragraph (a) , if known;
(c) the reasons why the applicant believes an administrator is needed;
(d) details of the financial affairs of the person in respect of whose estate the application is made.

10.   Application for review of guardianship order or administration order

For the purposes of section 67 of the Act, an application to review a guardianship order or administration order is to contain the following information:
(a) the name and address of each of the following persons:
(i) the applicant;
(ii) the represented person in respect of whom the review is sought;
(iii) if a guardianship order is in force in respect of the represented person, any guardian of the represented person;
(iv) if an administration order is in force in respect of the represented person, any administrator of the represented person's estate;
(v) any other person who is concerned for the welfare of the represented person;
(b) the telephone number and email address of each person referred to in paragraph (a) , if known;
(c) the reasons why the applicant believes that the guardianship order or administration order, or both of them, should be varied, continued or revoked;
(d) details of the financial affairs of the person in respect of whom the review is sought.
PART 3 - Treatment

11.   Special treatment

The following treatments are declared to be special treatment for the purposes of Part 6 of the Act:
(a) psychosurgery, including any neurological procedure carried out for the relief of the symptoms of Parkinson's disease;
(b) any treatment involving the use of an aversive stimulus, whether that stimulus is mechanical, chemical, physical or otherwise.

12.   Medical or dental treatment without consent

For the purposes of section 41(2) of the Act, the following cases are specified as cases where medical or dental treatment may not be carried out, on a person to whom Part 6 of the Act applies, without consent under Division 2 of that Part:
(a) the treatment is continuing or ongoing and involves the administration of a restricted substance primarily to control the conduct of the person to whom it is given;
(b) the treatment involves the administration of a drug of addiction other than in association with the treatment of cancer or palliative care of a terminally ill patient;
(c) the treatment involves electroconvulsive therapy (ECT);
(d) the treatment involves a substantial risk to the person to whom it is given of –
(i) death; or
(ii) brain damage; or
(iii) paralysis; or
(iv) permanent loss of function of any organ or limb; or
(v) permanent and disfiguring scarring; or
(vi) extreme pain or distress;
(e) the treatment is intended, or is likely, to result in the removal of all or a substantial number of teeth.

13.   Oral consent to be confirmed in writing

If a person responsible for a person to whom Part 6 of the Act applies gives consent under section 43 of the Act orally, the responsible person must give written confirmation of that consent as soon as practicable to the person to whom the consent was given orally.
PART 4 - Miscellaneous

14.   Fees

The fees specified in Schedule 1 are the fees payable for the purposes of the Act in respect of the matters to which they relate.

15.   Fees for examining statement of certain accounts

(1)  In this regulation –
relevant estate means an estate of a represented person that is of more than $50,000 in value at the last day of the period to which a statement of the accounts of the estate, provided to the Board under section 63 in respect of the estate, relates.
(2)  On providing to the Board a statement of the accounts of the estate under section 63 , the administrator of a relevant estate must pay the following fee for the Board to examine the statement in accordance with section 63(4) :
(a) if the administrator is the Public Trustee, or a trustee company within the meaning of the Trustee Companies Act 1953 , a fee of 83.5 fee units;
(b) if the administrator is not the Public Trustee, or a trustee company within the meaning of the Trustee Companies Act 1953 , a fee of 118 fee units.
(3)  The value of the following items are not to be taken into account in determining the value of an estate of a represented person for the purposes of this regulation:
(a) the represented person's household furniture and effects, including personal jewellery;
(b) the represented person's principal place of residence;
(c) the principal place of residence of the spouse of the represented person or a child, of the represented person, who is a minor;
(d) the represented person's former principal place of residence, if –
(i) it has been, at any time during the period to which the statement of the accounts relates, occupied by the represented person; and
(ii) it was not rented to another person at any time during that period;
(e) any deposit or bond that is held by a residential aged care facility in respect of the represented person.

16.   Waiver of fees

On the application of a person, the Registrar may waive all or part of a fee that would otherwise be payable under these regulations by the person, if the Registrar is satisfied that requiring the person to pay all or part of the fee would cause undue hardship to the person or a person represented by the person.
SCHEDULE 1 - Fees

Regulation 14

In this Schedule –
relevant instrument means an instrument of appointment as an enduring guardian under Part 5 of the Act.
 

Item

Fee

  

(fee units)

1. 

Registration of a relevant instrument under section 32 of the Act

45

2. 

Registration of an instrument revoking a relevant instrument under section 33 of the Act

32

3. 

Search or inspection, in relation to a relevant instrument, of register kept by Board

19.5

4. 

Copy of a relevant instrument

20

5. 

Certified copy of a relevant instrument

29

6. 

Copy of recording of a proceeding under the Act

20 (per recording file)

7. 

Photocopy of a document made by or on behalf of the Board

2 (per page)

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 17 October 2017