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1
Succession and Another Act Amendment
SUCCESSION AND OTHER ACTS
AMENDMENT BILL 2000
EXPLANATORY NOTES
GENERAL OUTLINE
Objective of the Bill
The Bill will allow a parent or guardian of a child to appoint a person as a
guardian of the child by will to take effect either on the death of the parent or
guardian, or on the death of the child's last remaining parent.
Reasons for the Bill
The Children's Services Act 1965 (the repealed Act) was replaced by the
Child Protection Act 1999 on 23 March 2000.
Section 90 of the repealed Act allowed a parent of a child to appoint a
person as a guardian of the child under the person's will. Under the repealed
Act, a person appointed as a guardian under a parent's will would then have
all of the necessary powers in relation to that child including the ability to
take the child into his or her care.
It is likely that many parents have provided for the guardianship of their
children under existing wills. The effect of the repeal of section 90 is that
these directions will now only amount to the expression of a wish with no
legal effect.
The Bill is designed to re-instate this power, to allow parents to make a
legally effective appointment of a person as a guardian of a child in the event
of their death.
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Succession and Another Act Amendment
Alternatives to this Bill
Section 90 of the repealed Act provided the only power for parents to
make the decision about the guardianship of their children in the event of
their death. Without this power, an application will now have to be made
either to the Children's Court for a care and protection order granting the
long term guardianship of a child under the Child Protection Act 1999, or to
the Family Court for an order under the Family Law Act 1975.
It is considered that it is more appropriate to provide parents with the
capacity to make the essentially private decision about the person that they
would like to care for their children in the event of their death.
Administrative cost to Government
There will be little or no administrative cost to Government in
implementing the proposed legislation.
Consistency with Fundamental Legislative Principles
The Bill is consistent with the fundamental legislative principles
contained in the Legislative Standards Act 1992. Although it is proposed
that the legislation will have retrospective effect in that it will apply from 23
March 2000, this effect will be for the benefit of the individuals concerned
and does not breach fundamental legislative principles.
Consultation
· Community
The Succession Law Committee, Queensland Law Society was heavily
consulted during the development of this Bill and supports the proposed
legislation.
· Government
The Department of Justice and Attorney-General developed the Bill in
conjunction with Families, Youth and Community Care Queensland. The
Department of the Premier and Cabinet was also consulted.
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Succession and Another Act Amendment
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 provides that the short title of the proposed Act is the
Succession and Other Acts Amendment Act 2000.
Clause 2 states that the Act, other than part 4, is taken to have
commenced on 23 March 2000. This is the date of commencement of the
Child Protection Act 1999 and the date of repeal of the Children's Services
Act 1965.
Part 4 amends the Child Protection Act 1999 by inserting a new section
259A. The amendment is not made retrospectively, but the new section
inserted by the amendment is expressed, in subsection (4), to have
retrospective effect to 23 March 2000.
This approach has been taken because of the renumbering of the Child
Protection Act 1999 in reprint 1. If the Act were amended retrospectively (to
have effect from 23 March), the numbering of the new section and the
description of where it was to be inserted would need to take account of the
renumbering. This avoids the potential uncertainty of a retrospective
amendment of the Act.
PART 2--AMENDMENT OF SUCCESSION ACT 1981
Clause 3 states that Part 2 of the proposed Act amends the Succession
Act 1981.
Clause 4 inserts new Part 5A--Testamentary Appointment of
Guardians of Children immediately following section 61 of the
Succession Act 1981.
Division 1--Preliminary
Proposed Section 61A contains a number of definitions for the purposes
of Part 5A:
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Succession and Another Act Amendment
The definition of "child" excludes individuals who are, or have been
married as it would be inappropriate to authorise the appointment of a
testamentary guardian for a person who is, or has been, married.
The definition of "guardian" excludes a person who has guardianship of
a child through that person's official capacity as the right to appoint a
testamentary guardian should be a private right.
The term "parent" is defined to include a person regarded as the parent of
a child under Aboriginal tradition or Island custom. However, a person is
not considered to be a parent of a child if a decision or order of a court has
ended the person's parental responsibility for the child.
A "testamentary guardian" is a guardian of a child appointed by will.
Proposed Section 61B provides that part 5A applies to a child regardless
of where or when the child was born. It will also apply regardless of when a
will was made. This is appropriate because the power to appoint a
testamentary guardian was previously provided under the repealed
Children's Services Act 1965.
Division 2--Appointment of testamentary guardian
Proposed Section 61C provides that a parent or guardian of a child may,
by will, appoint a person as a guardian of a child. Subsection (2) provides
that this appointment takes no effect if the person making the appointment
was not a parent or guardian of the child immediately before the person's
death. This means that if a person was the parent or guardian of a child but
then had the guardianship of the child removed before the person's death,
for example, by order of a court, the appointment will not take effect.
Proposed Section 61D states when an appointment of a guardian by will
takes effect. This section provides that an appointment may take effect in
three ways.
Firstly, if there is no parent of a child alive at the time of the appointer's
death, the appointment takes effect on the death of the appointer (subsection
(2)).
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Succession and Another Act Amendment
Secondly, if one or more parents of the child are alive at the time of the
appointer's death, and the appointer has expressed an intention in the will
that the appointment take effect on the appointer's death, the appointment
takes effect on the death of the appointer (subsection (3)(a)).
Thirdly, if one or more parents of the child are alive at the time of the
appointer's death, and the appointer has not expressed an intention in the
will that the appointment take effect on the appointer's death, the
appointment takes effect on the death of the last remaining parent of the
child (subsection (3)(b)).
Proposed Section 61E states the effect of appointment as a testamentary
guardian.
This section distinguishes between decisions about the long-term care,
welfare and development of a child, and decisions about the child's daily
care.
On appointment, a testamentary guardian has all the powers, rights and
responsibilities, for making decisions about the long-term care, welfare and
development of the child, that are ordinarily vested in a guardian.
(subsection (1)).
A testamentary guardian will only be given the right to care for the child,
and the right and responsibility to make decisions about the child's daily
care, ("daily care authority"), if the child has no surviving parent and no-one
else has been given these rights under a decision or order of a court.
This means that the appointment as a testamentary guardian will not
allow a person to interfere with the rights of a parent or other person who
has been granted daily care authority for the child.
Proposed Section 61F provides that if a person is appointed as the
testamentary guardian of a child who has 1 or more other guardians, the
testamentary guardian is to act jointly with the other guardian or guardians.
Division 3--Applications to the Supreme Court
Proposed Section 61G provides that where an appointment of a
testamentary guardian has not taken effect because the child has a surviving
parent, the person may apply to the Supreme Court for an order that the
appointment should take effect immediately.
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Succession and Another Act Amendment
Proposed Section 61H provides that where an appointment of a
testamentary guardian of a child has taken effect, a surviving parent of the
child may apply to the Supreme Court for an order that the appointment be
revoked or suspended.
Proposed Section 61I provides that in considering an application made
under Sections 61G or 61H, the Supreme Court may make the orders that it
considers appropriate.
Proposed Section 61J provides that Division 3 does not limit the powers
of the Supreme Court under another law. This means, for example, that the
division is not intended to affect the Court's power under its inherent
jurisdiction.
PART 3--AMENDMENT OF COMMONWEALTH
POWERS (FAMILY LAW--CHILDREN) ACT 1990
Clause 5 states that the part amends the Commonwealth Powers (Family
Law-Children) Act 1990.
Clause 6 amends section 3 of that Act. Subsection (1) makes a minor
amendment to the section to remove to a reference to "schedule 1" and
replace this with "the schedule" as there is only 1 schedule in the Act.
Subsection (2) provides that a reference to "an Act" includes a reference
to a part of an Act. This is necessary because it is only Part 5A of the
Succession Act 1981 that is relevant to the operation of the Commonwealth
Powers (Family Law-Children) Act 1990.
Clause 7 amends the schedule to the Commonwealth Powers (Family
Law-Children) Act 1990. Subsection (1) makes a minor amendment to
change the title of the schedule from "Schedule 1" to "Schedule", as there is
only one schedule in the Act.
Subsection (2) inserts proposed part 5A of the Succession Act 1981 into
the schedule. This has the effect of excluding the new provisions relating to
testamentary guardianship from the general referral by the State to the
Commonwealth of legislative powers relating to children. This will resolve
any doubt about the State's capacity to legislate in the area of testamentary
guardianship.
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Succession and Another Act Amendment
PART 4--AMENDMENT OF CHILD PROTECTION
ACT 1999
Clause 8 states that part 4 amends the Child Protection Act 1999.
Clause 9 inserts a new section 259A into the Child Protection Act 1999.
Proposed Section 259A applies to appointments of a guardian of a child
by deed under the Children's Services Act 1965 if the deed was in force
prior to the repeal of that Act.
Subsection (2) states that the deed has effect to the same extent as if the
repealed Act had not been repealed.
Notwithstanding the effect of Section 20 of the Acts Interpretation Act
1954, there is a need to ensure that any relationships created between a child
and a person appointed as a guardian of a child by deed are not affected by
the repeal of the Children's Services Act 1965. Subsection (2) puts this
beyond doubt.
Subsection (3) states that subsection (2) does not limit section 20 of the
Acts Interpretation Act 1954.
Subsection (4) states that proposed section 259A has effect from 23
March 2000.
As discussed under clause 2, this avoids the potential uncertainty of a
retrospective amendment of the Act.
© State of Queensland 2000