ADULT GUARDIANSHIP ACT (Repealed)

An Act making provision for a scheme of guardianship for certain adults under an intellectual disability, and for related purposes

This Act shall come into operation on a date to be fixed by the Administrator by notice in the Gazette.

advance care statement, see section 3 of the Advance Personal Planning Act.

advance personal plan, see section 3 of the Advance Personal Planning Act.

(b) a manager appointed for the person under the Aged and Infirm Persons' Property Act;

Executive Officer means the Adult Guardianship Executive Officer appointed under section 7.

guardian means an adult guardian appointed pursuant to this Act and includes the Public Guardian.

intellectual disability means a disability in an adult resulting from an illness, injury, congenital disorder or organic deterioration or of unknown origin and by reason of which the person appears to be unable to make reasonable judgments or informed decisions relevant to daily living.

Public Guardian means the Minister, and includes the person or, where there is more than one, each person to whom the powers and functions of Public Guardian have been delegated by the Minister under section 6.

represented person means an adult in respect of whom an adult guardianship order is in effect.

(a) the reference to another relative is a reference to a person connected by blood relationship, marriage, de facto relationship, adoption or custom, and for this purpose persons are connected:

(ii) by marriage if one is married to the other or to a person who is connected by blood relationship to the other;

(iia) by de facto relationship if one is in a de facto relationship with the other or with a person who is connected by blood relationship to the other;

(iii) by adoption if one has been adopted as the child of the other or as a child of a person who is within the third degree of relationship to the other; and

(iv) by custom if the relationship is generally regarded in a community as being akin to one of blood, marriage or adoption; and

(b) the reference to the spouse of a person includes a reference to a person who is not legally married to the first-mentioned person but who lives with that person on a bona fide domestic basis.

(3) A person shall not be considered to be under an intellectual disability by reason only that the person:

(a) expresses or refuses or fails to express a particular political, anarchic, religious, irreligious, legal, illegal, moral, or immoral opinion; or

(b) engages in or refuses or fails to engage in a particular political, anarchic, religious, irreligious, legal, illegal, moral, or immoral activity.

(4) Except as provided in section 21A(2) of the Powers of Attorney Act, nothing in this Act shall derogate from the provisions of that Act.

(1) Every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that:

(a) those means which are the least restrictive of a represented person's freedom of decision and action as is possible in the circumstances are adopted;

(2) However, if the represented person has made an advance care statement, the function, power, authority, discretion, jurisdiction or duty must be exercised or performed so as to give effect to the statement even if doing so is not in the represented person's best interests, unless:

(a) the represented person, having capacity to do so, states that he or she does not want effect to be given to that statement; or

(b) a circumstance mentioned in section 23(2)(a) to (e) of the Advance Personal Planning Act exists.

(e) to apply for a review of a guardianship order or to make representations to the Court at such a review under section 23; and

(f) to perform such other functions as are conferred on it by or under this or any other Act.

(3) Where the Public Guardian is advised by the Executive Officer that a guardian:

(a) is ill or incapacitated and unable to perform the functions of a guardian; or

(b) wishes to be relieved of the duties of guardian for the purposes of taking a holiday, attending to business matters or for other sufficient reason during such period or periods in each year as is reasonable in the circumstances,

the Public Guardian shall act as guardian during the illness or incapacity or that period or those periods.

(1) The Minister may, by instrument in writing, delegate to a person any of the Minister's powers and functions under this Act (including those that relate to the Public Guardian), other than this power of delegation.

(d) the holders for the time being of offices or appointments of a specified class.

(3) A power or function delegated under this section, when exercised or performed by the delegate, shall, for the purposes of this Act, be deemed to have been exercised or performed by the Minister.

(4) A delegation under this section is revocable at will and does not prevent the exercise of a power or the performance of a function by the Minister.

(1) The Minister may, by notice in the Gazette, appoint an employee within the meaning of the Public Sector Employment and Management Act to be the Adult Guardianship Executive Officer.

(2) The Executive Officer shall perform the functions and exercise the powers conferred on the Executive Officer by or under this or any other Act.

(3) The Executive Officer shall attend the Court in relation to all guardianship proceedings under this Act before the Court, and shall present to the Court the advice, reports and recommendations of the Guardianship Panel in relation to an application for an order.

(1) The Public Guardian, a near relative of, an agent for, or a person who has provided or is providing substantial care and attention for a person under a disability may apply to the Court for an order appointing an adult guardian in respect of that person.

(2) A court may direct any person to make an application under this section in respect of a person under a disability.

(4) A registrar of the Local Court shall, as soon as practicable after an application under this section has been lodged, advise the Executive Officer of the application.

(1) The Minister shall, upon being advised by the Executive Officer that an application for a guardianship order has been lodged with the Local Court, set up a Guardianship Panel to advise, give reports and make recommendations to the Court in respect of the application.

(i) one shall, in the opinion of the Minister, have skills or expertise in the assessment of persons under an intellectual disability; and

(ii) the other is a member of the community in or near to which the proposed represented person lives.

(3) Each Guardianship Panel, acting through the Executive Officer, shall, from persons having the appropriate qualifications or expertise or from the members' own knowledge, obtain such information as will enable the panel to provide advice or make recommendations to the Court at the hearing of the application on:

(a) the extent of any intellectual disability of the proposed represented person;

(b) the nature and extent of any support system which is available to maintain the proposed represented person in the community in which the person lives or which has previously been utilised by or in respect of the person;

(c) any matters or issues which are of cultural significance to the proposed represented person or to the community in which the person lives;

(ca) whether the proposed represented person has an advance personal plan and, if so, the terms of the plan (including as to any appointment of a decision maker);

(d) whether or not a guardian should be appointed in respect of the proposed represented person;

(i) the suitability of the proposed guardian for the proposed represented person;

(ii) any limitations or conditions which, in the opinion of the panel, should reasonably be incorporated in a guardianship order; and

(iii) the implications, effects or results which an adult guardianship order, if made (including and excluding the limitations and conditions which are considered necessary) may be expected to have on the proposed represented person, the family and relatives of the person, and the community in which the person lives.

(4) The Guardianship Panel shall make or obtain an estimate of the value of the estate of the proposed represented person.

(5) A Guardianship Panel shall complete its functions under subsection (3) in respect of each adult guardianship application within 6 weeks of the matter being referred to it.

Every Guardianship Panel is deemed to be a statutory body within the meaning of and for the purposes of the Assembly Members and Statutory Officers (Remuneration and Other Entitlements) Act.

(1) The Court has jurisdiction in all matters relating to adult guardianship, has the functions required of it under this Act, and has the power to carry out those functions.

(b) make guardianship orders, whether with or without limitations or conditions;

(d) make such other order or give such directions as may best assist it in carrying out its functions.

(2) The Court, in hearing any matter, is not bound by rules or practice as to evidence but may inform itself in such manner as it thinks fit, including admitting as evidence any matter or thing that would not otherwise be admissible in a court of law.

(3) As well as accepting any advice, report, or recommendation from the Guardianship Panel, the Court may, through the Executive Officer, require an officer of a government department including a Commonwealth department, Territory or Commonwealth statutory authority or service provider or the Public Guardian or a guardian or administrator (including the Public Trustee) to provide a report on any matter relating to the proceedings to the Court.

(4) The Court may interview the person in respect of whom the application is made, any near relative of the person, the applicant for the guardianship order or any other person the Court thinks fit.

(1) At the hearing of an application for an adult guardianship order, the following persons may make representations:

(b) the person in respect of whom the application is made or a legal practitioner representing that person;

(c) a near relative of the person in respect of whom the application is made, or any relative or person who has relevant information that relates to the care of that person;

(d) the person who has taken or is taking primary care of the person in respect of whom the application is made;

(f) the manager of the person's estate or, if there is no manager, the Public Trustee;

(2) The Executive Officer shall ensure that in any proceedings the person in respect of whom the application is made is legally represented before the Court.

(1) The Court may appoint as a guardian any natural person who has attained the age of 18 years and consents to act as guardian if the Court is satisfied that that person:

(b) is not in such a position that the person's interests conflict or may conflict with the interests of the proposed represented person; and

(2) In determining whether a person is suitable to act as the guardian of a represented person, the Court shall take into account:

(aa) whether the proposed guardian is an agent for the proposed represented person;

(c) the compatibility of the person proposed as guardian with the proposed represented person and with any agents for the person; and

(d) whether the person proposed as guardian will be available and accessible to the proposed represented person so as to fulfil the requirements of guardianship of that person.

(3) Where a near relative of, or an agent for, a proposed represented person is proposed as the guardian that person is not, because of that fact only, to be taken to be in a position where the person's interests conflict or may conflict with those of the proposed represented person.

(a) the person in respect of whom the application is made should have an adult guardian appointed; and

(b) no other person fulfils the requirements of subsection (1) for appointment as the guardian of that person,

(5) This section does not prevent the Court from appointing persons (including the Public Guardian and any other person) as joint guardians of the proposed represented person if:

(1) Where the Court is satisfied after a hearing that the person in respect of whom an application for a guardianship order is made:

(b) each agent for the person in respect of whom the application was made of whom the Executive Officer is aware.

(1) The Court may, at the hearing of an application under this Act for a guardianship order:

(a) if it is satisfied that the adult guardian is competent to manage the estate of the person who is the subject of the application, appoint the adult guardian to be the manager of the estate subject to such terms and conditions as it thinks fit; or

(b) if it is not satisfied that the adult guardian is competent to manage the estate of the person who is the subject of the application, order the Public Trustee or some other person to make an application under the Aged and Infirm Persons' Property Act for a protection order.

(2) An adult guardian appointed under subsection (1)(a) to be the manager of the estate of the person who is the subject of the application has:

(a) the powers of a manager of a protected estate under section 17 of the Aged and Infirm Persons' Property Act; and

(b) subject to section 21(2) of the Aged and Infirm Persons' Property Act, the liability of a manager under section 21(1) of that Act.

(2A) The Court may, at any time, vary or terminate an appointment under subsection (1)(a).

(3) Unless otherwise provided in a guardianship order, an adult guardian appointed to be a manager under subsection (1)(a) shall, at least once a year, give the Executive Officer an account of the management of the represented person's estate, showing assets and liabilities and receipts and payments in respect of the estate.

(4) The Executive Officer shall report on the management of the estate to the Court at the time the guardianship order is reviewed pursuant to section 23.

(1) This section applies if the person in respect of whom an application for a guardianship order has been made has an advance personal plan.

(2) The Court must take the plan (including any appointment of a decision maker) into account in determining:

(3) Further, if the person has a decision maker the Court cannot make a guardianship order or an order under section 16 that will give the guardian authority to do anything that the decision maker has authority to do.

If authority for a matter has been conferred on a decision maker and the Court considers that the authority ought to be conferred on a guardian, the Court might be able to amend the advance personal plan to limit the decision maker's authority. However, the Court could do so only if grounds for amending the plan exist under section 61 of the Advance Personal Planning Act.

(1) Subject to section 4, a full guardianship order appointing a guardian confers on the guardian in respect of the represented person all the powers and duties which the guardian would have if he or she were a parent and the represented person his or her infant child.

(2) Without limiting subsection (1), an order appointing a guardian confers on the person named as guardian the power:

(a) to decide where the represented person is to live, whether permanently or temporarily;

(d) except as otherwise provided in section 21, and subject to Part 4 of the Advance Personal Planning Act, to consent to any health care that is in the best interests of the represented person.

(3) The Court may make a full order subject to such conditions or restrictions as it thinks fit.

(4) Where a decision is made, action taken, consent given or thing done by a guardian under a full order the decision, action, consent or thing has effect as if it had been made, taken, given or done by the represented person and the represented person had the legal capacity to do so.

(1) Subject to section 4, a conditional order appointing a guardian confers on the guardian such one or more of the powers and duties in respect of the represented person that are conferred on a guardian under a full order as the Court may specify in the order.

(2) The Court may make a conditional order subject to such conditions or restrictions as it thinks fit.

(3) Where a decision is made, action taken, consent given or thing done by a guardian under a conditional order, the decision, action, consent or thing has effect as if it had been made, taken, given or done by the represented person and the represented person had the legal capacity to do so.

(1) Any person may apply to the Court for a temporary order appointing the Public Guardian as the adult guardian of a person in respect of whom an application could be made under section 8.

(2) An application may be made under subsection (1) whether or not an application has been made under section 8.

(3) If the Court considers that the circumstances of the person in respect of whom the application is made are such that a hearing should be held without unreasonable delay, the Court shall hold a hearing under this section.

(4) If the Court is satisfied that the person in respect of whom the application has been made:

it may make a temporary order appointing the Public Guardian or another suitable person as the guardian of that person.

(5) The Court may make a temporary order subject to such conditions or restrictions as it thinks fit, and shall specify whether the powers of the guardian are to be those as if the order were a full order under section 17 or a conditional order under section 18.

(6) A temporary order remains in effect for such period not exceeding 90 days as is specified in the order.

(7) The Court shall hold a hearing before the expiry of the temporary order to determine whether a guardianship order, if made at all, should be made under section 17 or section 18.

(8) Sections 12 and 13 apply with such modifications as are necessary in respect of the hearing.

(1) Without derogating from section 4, a guardian must act in the best interests of the represented person.

(2) Without limiting subsection (1), a guardian acts in the best interests of a represented person if the guardian acts as far as possible:

(b) in such a way as to encourage the represented person to participate as much as possible in the life of the community;

(c) in such a way as to encourage and assist the represented person to become capable of caring for himself or herself and of making reasonable judgments in respect of matters relating to his or her person;

(d) in such a way as to protect the represented person from neglect, abuse or exploitation; and

(e) in consultation with the represented person, taking into account, as far as possible, the wishes of the represented person.

(2A) However, if the represented person has made an advance care statement, the guardian must exercise and perform his or her powers and duties so as to give effect to the statement even if doing so is not in the represented person's best interests, unless:

(a) the represented person, having capacity to do so, states that he or she does not want effect to be given to that statement; or

(b) a circumstance mentioned in section 23(2)(a) to (e) of the Advance Personal Planning Act exists.

(3) A guardian may on behalf of a represented person sign and do all such things as are necessary to give effect to any power or duty vested in the guardian.

(4) If the represented person has one or more agents, the guardian must cooperate with all such persons to enable all of them to properly exercise their powers and perform their duties for the represented person.

(1) Despite sections 17 to 19 and the terms of any guardianship order, an adult guardian does not have authority to give consent for the carrying out, in relation to the represented person, of a major medical procedure.

The scope of a guardian's authority to consent to the provision of health care to the represented adult is determined by section 17, 18 or 19. This section imposes a limit on that authority.

(a) a medical or dental procedure that does not remove an immediate threat to a person's health and which is generally accepted by the medical profession or, as the case may be, dental profession as being of a major nature; or

Part 4 of the Advance Personal Planning Act governs the giving of consent for health care action for an adult who has impaired decision-making capacity, including represented persons. Depending on the circumstances, a consent decision might be made:

(a) by the adult himself or herself by way of an advance consent decision (see section 41 of the Advance Personal Planning Act); or

(b) by a decision maker under the Advance Personal Planning Act (see section 42 of the Advance Personal Planning Act); or

(c) by an adult guardian (see section 42 of the Advance Personal Planning Act); or

(d) by the Local Court (see section 44 of the Advance Personal Planning Act); or

(e) by a person with a right to do so under another law (see section 44A of the Advance Personal Planning Act).

A guardian can only make decisions that are within the scope of his or her authority. A guardian does not have authority to make decisions about major medical procedures. For matters about which a guardian does not have authority, if there is no advance consent decision and no available decision maker, the guardian may apply under the Advance Personal Planning Act to the Local Court for the court to give consent.

Where a represented person in respect of whom an adult guardian has been appointed dies, the guardian shall report the death to the Executive Officer without delay.

(1) The Court shall, within 2 years after the making of a guardianship order or at the expiry of such shorter period as may have been specified in the order, hold a hearing to review the order.

(1A) The Court must, on application by the Executive Officer or a decision maker under section 23B(3) or (4), hold a hearing to review a guardianship order.

(b) on the application of the represented person or a person on behalf of the represented person;

(3) The Executive Officer shall, at least 14 days before the review hearing is to be held, cause notice of the hearing and of its time and place to be given to:

(ba) any agent for the represented person of whom the Executive Officer is aware;

(d) the represented person and to a legal representative for the represented person.

(4) The Executive Officer shall provide the Court at the hearing with such information and reports as it considers necessary to:

(a) determine the effectiveness of the guardianship order in providing for the care and protection of the represented person;

(d) determine any changes which might be considered necessary to the existing order.

(5) Upon completing a review the Court may, by order, amend, vary, continue or replace the guardianship order subject to any conditions or restrictions it considers necessary, or revoke the order.

(2) The Court may make such orders as the Court thinks fit in relation to the exercise by a guardian of his or her powers, functions and duties for the purpose of facilitating a reasonable and workable division of decision making authority between the guardian and the agents for the represented person.

(3) An application for an order under this section may be made by a guardian or agent for a person.

(b) before the order was made the represented person had made an advance personal plan; and

(2) The guardianship order is not invalid only because section 9(3)(ca), 13(1)(ca), 14(2)(aa) or (c), or 16A was not complied with in relation to the making of the order.

(3) As soon as practicable after becoming aware of the advance personal plan, the Executive Officer must apply to the Court for a review of the guardianship order under section 23(1A), unless a decision maker has already done so under subsection (4).

(4) If the advance personal plan includes the appointment of a decision maker, the decision maker may apply for a review of the guardianship order under section 23(1A).

(1) A party to a proceeding under this Act before the Court who is aggrieved by a decision or determination of the Court may appeal against that decision or determination to the Supreme Court within the time and in the manner prescribed by the Rules of the Supreme Court.

(2) The Supreme Court shall decide the matter of appeal under this section and may either dismiss the appeal or reverse or vary the decision or determination appealed against and may make such order as to the costs of the appeal or the proceeding before the Court, or both, as it thinks fit.

(1) Subject to subsection (2), all proceedings relating to this Act before the Court are to be open to the public.

(2) A person who is directly interested in any proceedings referred to in subsection (1) may request the Court to have the proceedings or part of the proceedings closed to the public.

(3) Upon a request under subsection (2), the Court may, if it thinks fit, direct that any persons:

are to be excluded from the place where the proceedings are being or are to be heard.

(1) Unless the Court otherwise determines in a particular case, no person shall publish or broadcast or cause to be published or broadcast any report of any proceedings of the Court relating to this Act.

(2) Where the Court considers it would be in the public interest to do so, it may determine that a person may publish or broadcast or cause to be published or broadcast a report of such proceedings if:

(a) the report does not contain particulars calculated to lead to the identification of a person in respect of whom the proceedings have been brought or any other person concerned in the proceedings; and

(b) pictures are not taken of a person in respect of whom proceedings have been brought or any other person concerned in the proceedings.

(3) Any person who contravenes this section is guilty of an offence against this Act.

(1) Where a notice is required to be given to a person in respect of whom an application has been made or to a represented person, the notice shall be given personally to that person in accordance with this section.

(2) The contents of any notice referred to in subsection (1) shall be explained by the person serving the notice to the maximum extent possible to the person in the language, mode of communication and terms which that person is most likely to understand.

(3) An explanation given under subsection (2) shall where possible be given both orally and in writing.

(4) Where a notice is required to be given to a person other than a person referred to in subsection (1) the notice may be given to that person by sending it by pre-paid post to that person at the person's usual or last known place of residence or business.

(5) Unless the contrary is proved, a notice sent by pre-paid post is deemed to have been given to that person at the time at which the notice would be delivered in the ordinary course of post.

(6) Where, except for this subsection, notice would be required to be given to a person in more than one capacity it is sufficient compliance with this Act if notice is given to that person in one of those capacities.

(7) A hearing or determination of the Court is not invalidated or affected by reason only of a failure to give notice to a person other than a proposed represented person or a represented person.

A person is not entitled to receive compensation from the Territory or the Minister (except as Public Guardian) in respect of any damage, loss or injury sustained by that person by reason of an act or omission of an adult guardian, administrator or manager under this Act.

No action or proceeding, civil or criminal, shall lie against the Public Guardian, the Executive Officer, a member of a Guardianship Panel, or against any other person making a report or supplying information to any of those persons, for or in respect of an act or thing done or omitted to be done in good faith in the performance of a function or the exercise of a power under this Act.

The Territory may make arrangements with a State or another Territory having provisions in its law relating to the appointment of adult guardians for persons under an intellectual disability, being provisions similar in nature to those contained in this Act, for the recognition and enforcement in that State or Territory of orders made by the Court under this Act.

The costs and expenses of or relating to the performance of a function or the exercise of a power pursuant to this Act by the Executive Officer or a Guardianship Panel are payable from the public moneys of the Territory and the appropriation for that purpose is established or increased to the extent necessary.

The Administrator may make regulations, not inconsistent with this Act, prescribing matters:

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

amd = amended od = order
app = appendix om = omitted
bl = by-law pt = Part
ch = Chapter r = regulation/rule
cl = clause rem = remainder
div = Division renum = renumbered
exp = expires/expired rep = repealed
f = forms s = section
Gaz = Gazette sch = Schedule
hdg = heading sdiv = Subdivision
ins = inserted SL = Subordinate Legislation
lt = long title sub = substituted

Adult Guardianship Act 1988 (Act No. 45, 1988)
Assent date	15 September 1988
Commenced	30 June 1989 (Gaz G25, 28 June 1989, p 5)
Local Court (Consequential Amendments) Act 1990 (Act No. 31, 1990)
Assent date	11 June 1990
Commenced	1 January 1991 (s 2, s 2 Local Court Act 1989 (Act No. 31, 1989) and Gaz G49, 12 December 1990, p 2)
Statute Law Revision Act 1991 (Act No. 31, 1991)
Assent date	25 June 1991
Commenced	25 June 1991
Statute Law Revision Act 1997 (Act No. 17, 1997)
Assent date	11 April 1997
Commenced	1 May 1997 (Gaz G17, 30 April 1997, p 2)
Statute Law Revision Act 1999 (Act No. 27, 1999)
Assent date	18 June 1999
Commenced	18 June 1999
Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 (Act No. 1, 2004)
Assent date	7 January 2004
Commenced	17 March 2004 (Gaz G11, 17 March 2004, p 8)
Statute Law Revision Act 2005 (Act No. 44, 2005)
Assent date	14 December 2005
Commenced	14 December 2005
Assembly Members and Statutory Officers (Remuneration and Other Entitlements) Act 2006 (Act No. 7, 2006)
Assent date	26 April 2006
Commenced	26 April 2006
Financial Management Amendment Act 2009 (Act No. 15, 2009)
Assent date	18 June 2009
Commenced	18 June 2009
Health Practitioner (National Uniform Legislation) Implementation Act 2010 (Act No. 18, 2010)
Assent date	20 May 2010
Commenced	1 July 2010 (s 2)
Penalties Amendment (Children and Families, Health and Primary Industry, Fisheries and Resources) Act 2011 (Act No. 28, 2011)
Assent date	31 August 2011
Commenced	21 September 2011 (Gaz G38, 21 September 2011, p 4)
Advance Personal Planning (Consequential Amendments) Act 2013 (Act No. 36, 2013 )
Assent date	19 December 2013
Commenced	pt 3: 5 February 2014 (Gaz G5, 5 February 2014, p 2); rem: 17 March 2014 (Gaz S14, 17 March 2014)
Statute Law Revision Act 2014 (Act No. 38, 2014)
Assent date	13 November 2014
Commenced	13 November 2014
Local Court (Related Amendments) Act 2016 (Act No. 8, 2016)
Assent date	6 April 2016
Commenced	1 May 2016 (s 2, s 2 Local Court (Repeals and Related Amendments) Act 2016 (Act No. 9, 2016) and Gaz S34, 29 April 2016)

Northern Territory Repealed Acts

ADULT GUARDIANSHIP ACT