Changes to appointments of enduring guardian under the Guardianship and Administration Amendment Act 2023 commenced on 1 September 2024.
New sections relating to appointments of enduring guardian
The amending Act inserts the following new sections into the Guardianship and Administration Act 1995 that relate to appointments of enduring guardian:
- Section 5 defines the meaning of promoting a person’s personal and social well-being.
- Section 6 inserts a definition of health and medical research.
- Section 7 updates the Act’s objects to protect and promote the rights and dignity of persons who have impaired decision-making ability by reference to matters such as the Convention on the Rights of Persons with Disabilities, principles and procedures to be observed, and requiring that persons with impaired decision-making and their families are informed of and make use of the Act’s provisions.
- Section 8 inserts principles to be observed by a guardian, such as a person’s decision-making ability, views, wishes, and preferences, and their personal and social well-being being respected and promoted.
- Section 9 inserts a decision-making process to which a guardian must have regard in determining whether to make a decision for the appointer, and the matters to be taken into account when making the decision.
- Section 11 sets out criteria for determining whether a person has decision-making ability, or has impaired decision-making ability. An adult is presumed to have decision-making ability unless a person or body responsible for assessing that ability determines otherwise.
- Section 27A inserts obligations on the guardian to keep records of dealings and transactions made by the person as guardian. It provides a former guardian may give a copy of the records to a new guardian, the former represented person, to legal representatives, or persons responsible. It provides a penalty provision for circumstances in which this obligation is not met.
Amended sections relating to appointments of enduring guardian
The amending Act amends existing sections of the Guardianship and Administration Act 1995 that relate to appointments of enduring guardian:
- Section 3 now includes a definition of close family member that includes adults of Aboriginal or Torres Strait Islander descent related to a person by kinship rules.
- Section 26 now provides that a guardian must:
- act in accordance with the Act’s principles;
- promote the personal and social well-being of the represented person;
- have regard to the Act’s decision-making process;
- act honestly and in good faith;
- communicate with the person by means they are best able to understand;
- keep the represented person informed;
- regularly consult with any other guardian or administrators of the person;
- act as an advocate for the represented person where possible;
- encourage the person to develop their decision-making ability;
- protect the represented person from violence, abuse, neglect or exploitation.
- Subsection 26(2) requires a guardian to ascertain whether the represented person has an advance care directive and to obtain a copy if so.
- Section 27 provides for the right of a guardian to have access to all information to which the represented person is entitled, if the information is required for performing a function as guardian.
- Section 32 now includes a requirement that the appointor of an enduring guardian to understand the nature and effect of the enduring guardianship instrument. It also sets out the matters the appointor is to understand about the nature and effect of the instrument, updates the witnessing requirements to make them consistent with those for appointment of an enduring power of attorney, and provides for the powers conferred on appointees and the circumstances in which the powers under the instrument are enlivened.
- Section 32B removes the requirement for the appointor to have a disability and be able to make reasoned judgements as a condition of the enduring guardian having rights to access information and replaces it with a requirement that the appointor has impaired decision-making ability. It further provides for the circumstances in which an enduring guardian has a right to obtain the appointor’s will from another person.
New prescribed form
The prescribed form for an appointment of enduring guardian has been amended.
These amendments have all been incorporated into the commentary in the By Lawyers Powers or Attorney, Enduring Guardianship and Advance Care Planning (TAS) publication, and in the Appointment of Enduring Guardian precedent on the matter plan