After section 110
the following Parts are inserted —
Part 9A — Enduring powers of guardianship
Division 1 — Preliminary matters
In this
Part —
“appointor” , in relation to an
enduring power of guardianship, means the maker of the power.
Division 2 — Making of enduring power
of guardianship
110B. Appointing enduring guardian
A person who has
reached 18 years of age and has full legal capacity may make an enduring
power of guardianship appointing —
(a) a
person as the enduring guardian of the person; or
(b) 2 or
more persons as the joint enduring guardians of the person.
110C. Substitute enduring guardians
(1) An appointor may,
in the enduring power of guardianship, appoint one or more persons to be
substitute enduring guardians.
(2) A substitute
enduring guardian becomes the enduring guardian or a joint enduring guardian
(as the case may be) in the circumstances specified in the enduring power of
guardianship.
110D. Who is eligible to be appointed
A person is eligible
to be appointed under section 110B or 110C(1) if the person has reached
18 years of age and has full legal capacity.
(1) An enduring power
of guardianship is not valid unless —
(a) it
is in the form or substantially in the form prescribed by the regulations; and
(b) it
is signed by the appointor or by another person in the presence of, and at the
direction of, the appointor; and
(c) the
signature referred to in paragraph (b) is witnessed by 2
persons —
(i)
both of whom are authorised by law to take declarations;
or
(ii)
of whom —
(I) one is authorised by law to take
declarations; and
(II) the other has the
qualifications specified in subsection (2);
and
(d) it
is signed by the witnesses referred to in paragraph (c) in the presence
of —
(i)
the appointor; and
(ii)
the person who signed it at the appointor’s
direction (if applicable); and
(iii)
each other;
and
(e) it
is signed by each person being appointed as an enduring guardian or
substitute enduring guardian (an "appointee") to indicate the
appointee’s acceptance of the appointment; and
(f) the
signature of the appointee is witnessed by 2 persons —
(i)
both of whom are authorised by law to take declarations;
or
(ii)
of whom —
(I) one is authorised by law to take
declarations; and
(II) the other has the
qualifications specified in subsection (2);
and
(g) it
is signed by the witnesses referred to in paragraph (f) in the presence
of the appointee and each other.
(2) A witness referred
to in subsection (1)(c)(ii)(II) or (f)(ii)(II) must be a
person —
(a) who
has reached 18 years of age; and
(b) who
is not —
(i)
the appointor; or
(ii)
the person who signed the enduring power of guardianship
at the appointor’s direction (if applicable); or
(iii)
an appointee.
Division 3 — Operation of enduring power of guardianship
110F. When enduring guardian may act
An enduring power of
guardianship has effect, subject to its terms, at any time the appointor is
unable to make reasonable judgments in respect of matters relating to his or
her person.
(1) Subject to this
section, an enduring guardian has the same functions under section 45(1)
and (2), and is subject to the same limitations under section 45(3) and
(4), in relation to the appointor as a plenary guardian has and is subject to
in relation to a represented person.
(2) An enduring power
of guardianship may limit the functions of the enduring guardian to the
functions specified in the power.
(3) An enduring power
of guardianship may limit the circumstances in which the enduring guardian may
act to the circumstances specified in the power.
(4) An enduring power
of guardianship may include directions about how the enduring guardian is to
perform any of his or her functions.
110H. Certain provisions apply in relation to
enduring guardian and appointor
The following
provisions apply (with the necessary changes) in relation to an enduring
guardian and appointor as if they were a guardian and represented person
respectively —
(a)
sections 48 to 51;
(b)
section 53(a);
(c)
subject to the terms of the enduring power of guardianship, section 54 as
if it were not subject to section 85;
(d)
Part 5 Division 3 other than section 57(2).
110I. Priority of enduring power of guardianship
(1) To the extent an
enduring power of guardianship relates to the making of a treatment decision
for the appointor, the priority to be given to the power is determined in
accordance with section 110ZJ.
(2) To the extent an
enduring power of guardianship relates to the performance of any other
function in relation to the appointor, the priority to be given to the power
is determined in accordance with section 119.
Division 4 — Jurisdiction of State Administrative
Tribunal
A person who, in the
opinion of the State Administrative Tribunal, has a proper interest in the
matter may apply to the Tribunal for a decision under this Division.
110K. Declaration about validity of enduring power
of guardianship
(1) The State
Administrative Tribunal may declare that an enduring power of guardianship is
valid or invalid.
(2) A declaration made
under subsection (1) has effect according to its terms.
110L. Declaration of incapacity of appointor
(1) The State
Administrative Tribunal may declare that the appointor under an enduring power
of guardianship is unable to make reasonable judgments in respect of matters
relating to his or her person.
(2) A declaration made
under subsection (1) has effect according to its terms.
(3) The Tribunal may
revoke a declaration made under subsection (1).
110M. Directions as to construction of terms etc.
The State
Administrative Tribunal may give directions as to matters connected
with —
(a) the
exercise of an enduring power of guardianship; or
(b) the
construction of the terms of an enduring power of guardianship.
110N. Revocation or variation of enduring power of
guardianship
(1) The State
Administrative Tribunal may make an order —
(a)
revoking an enduring power of guardianship; or
(b)
revoking the appointment of one or some of the persons who are joint enduring
guardians under an enduring power of guardianship if the person or each of the
persons —
(i)
wishes to be discharged; or
(ii)
has been guilty of such neglect or misconduct or of such
default as, in the opinion of the Tribunal, renders the person unfit to
continue as an enduring guardian; or
(iii)
appears to the Tribunal to be incapable by reason of
mental or physical incapacity of carrying out the person’s duties;
or
(c)
revoking or varying any of the terms of an enduring power of guardianship.
(2) If the Tribunal
makes an order under subsection (1)(b), subject to the terms of the
enduring power of guardianship, the remaining enduring guardian or guardians
may act under the power.
(3) An order made
under subsection (1) may be expressed to come into effect at a time
earlier than immediately after it is made.
110O. Recognition of instrument created in another
jurisdiction
(1) The State
Administrative Tribunal may make an order recognising an instrument created
under a law of another jurisdiction as an enduring power of guardianship under
this Part if satisfied the instrument corresponds sufficiently, in form and
effect, to an enduring power of guardianship made under this Part.
(2) The Tribunal may
revoke an order made under subsection (1).
Part 9B — Advance health directives
Division 1 — Making of advance health directive
110P. Making advance health directive
A person who has
reached 18 years of age and has full legal capacity may make an
advance health directive containing treatment decisions in respect of the
person’s future treatment.
(1) An
advance health directive is not valid unless —
(a) it
is in the form or substantially in the form prescribed by the regulations; and
(b) the
maker is encouraged to seek legal or medical advice; and
(c) it
is signed by its maker or by another person in the presence of, and at the
direction of, its maker; and
(d) the
signature referred to in paragraph (c) is witnessed by 2
persons —
(i)
both of whom are authorised by law to take declarations;
or
(ii)
of whom —
(I) one is authorised by law to take
declarations; and
(II) the other has the
qualifications specified in subsection (3);
and
(e) it
is signed by the witnesses in the presence of —
(i)
its maker; and
(ii)
the person who signed it at its maker’s direction
(if applicable); and
(iii)
each other.
(2) Despite
subsection (1)(b), the validity of an advance health directive is not
affected by a failure to comply with subsection (1)(b).
(3) A witness referred
to in subsection (1)(d)(ii)(II) must be a person —
(a) who
has reached 18 years of age; and
(b) who
is not —
(i)
the maker of the advance health directive; or
(ii)
the person who signed the directive at its maker’s
direction (if applicable).
110QA. Maker may indicate in directive whether
advice obtained
The form prescribed by
the regulations for section 110Q(1)(a) must include provision for the
maker, if the maker wishes —
(a) to
indicate whether the maker obtained legal or medical advice about the making
of the directive; and
(b) if
so, to identify from whom the maker obtained the advice.
110R. Requirements in relation to treatment
decision in advance health directive
(1) A treatment
decision in an advance health directive is invalid if the treatment
decision —
(a) is
not made voluntarily; or
(b) is
made as a result of inducement or coercion.
(2) A treatment
decision in an advance health directive is invalid if, at the time the
directive is made, its maker does not understand —
(a) the
nature of the treatment decision; or
(b) the
consequences of making the treatment decision.
110RA. Registration of advance health directive
An
advance health directive may be registered in the register referred to in
section 110ZAA.
Division 2 — Operation of advance health directive
(1) A treatment
decision in an advance health directive operates in respect of the treatment
to which it applies —
(a) at
any time the maker of the directive is unable to make reasonable judgments in
respect of that treatment; and
(b) as
if —
(i)
the treatment decision had been made by the maker at that
time; and
(ii)
the maker were of full legal capacity.
(2) Subject to
subsection (3), a treatment decision in an advance health directive
operates only in the circumstances specified in the directive.
(3) Subject to
subsection (4), a treatment decision in an advance health directive does
not operate if circumstances exist or have arisen that —
(a) the
maker of that directive would not have reasonably anticipated at the time of
making the directive; and
(b)
would have caused a reasonable person in the maker’s position to have
changed his or her mind about the treatment decision.
(4) In determining
whether or not subsection (3) applies in relation to a treatment decision
that is in an advance health directive, the matters that must be taken into
account include the following —
(a) the
maker’s age at the time the directive was made and at the time the
treatment decision would otherwise operate;
(b) the
period that has elapsed between those times;
(c)
whether the maker reviewed the treatment decision at any time during that
period and, if so, the period that has elapsed between the time of the last
such review and the time at which the treatment decision would otherwise
operate;
(d) the
nature of the condition for which the maker needs treatment, the nature of
that treatment and the consequences of providing and not providing that
treatment.
(5) For the purpose of
determining whether or not subsection (3) applies in relation to a treatment
decision that is in an advance health directive, subject to the terms of the
directive, any of the following persons may be consulted —
(a) if
the maker has an enduring guardian — the enduring guardian;
(b) if
the maker has a guardian — the guardian;
(c) a
person who has a relationship with the maker described in section 110ZD(3)(a)
to (d);
(d) any
other person considered appropriate in the circumstances.
(6) Subject to
section 110T, a treatment decision in an advance health directive is
taken to have been revoked if the maker of the directive has changed his or
her mind about the treatment decision since making the directive.
110T. Effect of subsequent enduring power of
guardianship
For the purposes of
this Act —
(a) a
treatment decision in an advance health directive is not taken to have been
revoked; and
(b) the
maker of the directive is not taken to have changed his or her mind about the
treatment decision since making the directive,
merely because the
maker subsequently makes an enduring power of guardianship (whether about the
same matter as the treatment decision or a different matter).
110U. Priority of treatment decision in
advance health directive
The priority to be
given to a treatment decision in an advance health directive is determined in
accordance with section 110ZJ.
Division 3 — Jurisdiction of State Administrative
Tribunal
A person who, in the
opinion of the State Administrative Tribunal, has a proper interest in the
matter may apply to the Tribunal for a decision under this Division.
110W. Declaration about validity of directive or
treatment decision
(1) The State
Administrative Tribunal may declare that —
(a) an
advance health directive; or
(b) a
treatment decision in an advance health directive,
is valid or invalid.
(2) A declaration made
under subsection (1) has effect according to its terms.
110X. Declaration of incapacity of maker
(1) The State
Administrative Tribunal may declare that the maker of an
advance health directive is unable to make reasonable judgments in respect of
the treatment to which a treatment decision in the directive applies.
(2) A declaration made
under subsection (1) has effect according to its terms.
(3) The Tribunal may
revoke a declaration made under subsection (1).
110Y. Directions as to construction of terms etc.
The State
Administrative Tribunal may give directions as to matters connected
with —
(a) the
giving of effect to a treatment decision in an advance health directive; or
(b) the
construction of the terms of an advance health directive.
110Z. Declaration that treatment decision has been
revoked
(1) The State
Administrative Tribunal may declare that a treatment decision in an
advance health directive is taken to have been revoked under
section 110S(6).
(2) A declaration made
under subsection (1) has effect according to its terms.
(3) The Tribunal may
revoke a declaration made under subsection (1).
110ZA. Recognition of instrument created in
another jurisdiction
(1) The State
Administrative Tribunal may make an order recognising an instrument created
under a law of another jurisdiction as an advance health directive made under
this Part if satisfied the instrument corresponds sufficiently, in form and
effect, to an advance health directive made under this Part.
(2) The Tribunal may
revoke an order made under subsection (1).
Division 4 — Miscellaneous matters
110ZAA. Register of advance health directives
(1) A register of
advance health directives must be established and maintained.
(2) The regulations
may provide for any matter that is necessary or convenient for the
registration of advance health directives, including the
following —
(a) who
must establish and maintain the register;
(b) the
form and manner in which the register must be established and maintained;
(c) the
contents of the register, including proof of the contents;
(d) who
may apply for registration;
(e) the
procedure for registration, including the alteration and removal of entries in
the register;
(f) who
may have access to or obtain information from the register;
(g) the
review by the State Administrative Tribunal of decisions allowing, or refusing
to allow, people to have access to or obtain information from the register;
(h) the
procedure for accessing or obtaining information from the register.
(3) No fee or charge
is payable in respect of any matter connected with the register or
registration.
110ZAB. Disclosure of information obtained from
register
(1) In this
section —
“register” means the register referred
to in section 110ZAA.
(2) A person who has
access to the register must not disclose any information on the register
unless the disclosure is authorised by subsection (4).
Penalty: $5 000.
(3) A person who
obtains any information from the register must not disclose the information
unless the disclosure is authorised by subsection (4).
Penalty: $5 000.
(4) For
subsections (2) and (3), a disclosure is authorised if it is —
(a)
authorised by, or made for the purposes of, this Act; or
(b) made
with the consent of the maker of the advance health directive to which the
information relates; or
(c) made
for a purpose, or in a circumstance, prescribed by the regulations; or
(d)
otherwise authorised or required by law.
110ZAC. Regulations to facilitate national
register
(1) In this
section —
"advance health directive" means —
(a) an
advance health directive made under this Part; or
(b) an
instrument created under the law of another State or a Territory that
corresponds sufficiently, in form and effect, to an advance health directive
made under this Part, whether or not the instrument is recognised under
section 110ZA(1).
(2) The regulations
may make provision to facilitate —
(a) the
establishment of a national register of advance health directives; and
(b) if a
national register is established — the registration of
advance health directives on it.
This Part does not
affect the common law relating to a person’s entitlement to make
treatment decisions in respect of the person’s future treatment.
Part 9C — Persons responsible for patients
Division 1 — Preliminary matters
In this
Part —
“patient” means a person who needs
treatment.
Division 2 — Treatment decisions by persons responsible
for patients
110ZD. Circumstances in which person responsible
may make treatment decision
(1) If a patient is
unable to make reasonable judgments in respect of any treatment proposed to be
provided to the patient, the person responsible for the patient under
subsection (2) may make a treatment decision in respect of the treatment.
(2) The person
responsible for the patient is the first in order of the persons listed in
subsection (3) who —
(a) is
of full legal capacity; and
(b) is
reasonably available; and
(c) is
willing to make a treatment decision in respect of the treatment.
(3) For
subsection (2), the persons are the following —
(a) the
patient’s spouse or de facto partner if that person —
(i)
has reached 18 years of age; and
(ii)
is living with the patient;
(b) the
patient’s nearest relative who maintains a close personal relationship
with the patient;
(c) the
person who —
(i)
has reached 18 years of age; and
(ii)
is the primary provider of care and support (including
emotional support) to the patient, but is not remunerated for providing that
care and support;
(d) any
other person who —
(i)
has reached 18 years of age; and
(ii)
maintains a close personal relationship with the patient.
(4) For
subsection (3)(b), the patient’s nearest relative is the first in
order of priority of the following relatives of the patient who has reached 18
years of age —
(a) the
spouse or de facto partner;
(b) a
child;
(c) a
parent;
(d) a
sibling.
(5) For subsection
(3)(b) and (d)(ii), a person maintains a close personal relationship with the
patient only if the person —
(a) has
frequent contact of a personal (as opposed to a business or professional)
nature with the patient; and
(b)
takes a genuine interest in the patient’s welfare.
(6) For
subsection (3)(c)(ii), a person is not remunerated for providing care and
support to the patient although the person receives a carer payment or other
benefit from the Commonwealth or a State or Territory for providing home care
for the patient.
(7) The person
responsible for the patient cannot consent to the sterilisation of the
patient.
(8) When making a
treatment decision for the patient, the person responsible for the patient
must act according to the person’s opinion of the best interests of the
patient.
(9) A treatment
decision made by the person responsible for the patient has effect as
if —
(a) the
treatment decision had been made by the patient; and
(b) the
patient were of full legal capacity.
110ZE. Priority of treatment decision of person
responsible
The priority to be
given to a treatment decision of a person responsible for a patient under
section 110ZD is determined in accordance with section 110ZJ.
Division 3 — Jurisdiction of State Administrative
Tribunal
A person who, in the
opinion of the State Administrative Tribunal, has a proper interest in the
matter may apply to the Tribunal for a decision under this Division.
110ZG. Declaration that person responsible may
make treatment decision
(1) The State
Administrative Tribunal may declare —
(a) that
a patient is unable to make reasonable judgments in respect of the treatment
proposed to be provided to the patient; and
(b) that
the person identified in the declaration is the person responsible for the
patient under section 110ZD.
(2) A declaration made
under subsection (1) has effect according to its terms.
(3) The Tribunal may
revoke a declaration made under subsection (1).
Part 9D — Treatment decisions in relation to patients
under legal incapacity
Division 1 — Preliminary matters
110ZH. Terms used in this Part
In this
Part —
“advance health directive” includes a
directive given by a person under the common law containing treatment
decisions in respect of the person’s future treatment;
“health professional” has the meaning
given to that term in the Civil Liability Act 2002 section 5PA;
“patient” means a person who needs
treatment;
“urgent treatment” means treatment
urgently needed by a patient —
(a) to
save the patient’s life; or
(b) to
prevent serious damage to the patient’s health; or
(c) to
prevent the patient from suffering or continuing to suffer significant pain or
distress,
but does not include
the sterilisation of the patient.
Division 2 — Provision of treatment
110ZI. Urgent treatment generally
(1)
Subsection (2) applies if —
(a) a
patient needs urgent treatment; and
(b) the
patient is unable to make reasonable judgments in respect of the treatment;
and
(c) it
is not practicable for the health professional who proposes to provide the
treatment to determine whether or not the patient has made an
advance health directive containing a treatment decision that is inconsistent
with providing the treatment; and
(d) it
is not practicable for the health professional to obtain a treatment decision
in respect of the treatment from the patient’s guardian or enduring
guardian or the person responsible for the patient under section 110ZD.
(2) The health
professional may provide the treatment to the patient in the absence of a
treatment decision in relation to the patient.
110ZIA. Urgent treatment after attempted suicide
(1)
Subsection (2) applies if —
(a) a
patient needs urgent treatment; and
(b) the
patient is unable to make reasonable judgments in respect of the treatment;
and
(c) the
health professional who proposes to provide the treatment reasonably suspects
that the patient has attempted to commit suicide and needs the treatment as a
consequence.
(2) The health
professional may provide the treatment to the patient despite —
(a) the
patient having made an advance health directive containing a treatment
decision that is inconsistent with providing the treatment; or
(b) the
patient’s guardian or enduring guardian or the person responsible for
the patient under section 110ZD having made such a treatment decision in
relation to the patient.
110ZJ. Order of priority of persons who may make
treatment decision in relation to patient
(1) Subject to
sections 110ZI and 110ZIA, this section applies if a patient is unable to
make reasonable judgments in respect of any treatment proposed to be provided
to the patient.
(2) If the patient has
made an advance health directive containing a treatment decision in respect of
the treatment, whether or not the treatment is provided to the patient must be
decided in accordance with the treatment decision.
(3) If —
(a)
subsection (2) does not apply; and
(b) the
patient has an enduring guardian who —
(i)
is authorised to make a treatment decision in respect of
the treatment; and
(ii)
is reasonably available; and
(iii)
is willing to make a treatment decision in respect of the
treatment,
whether or not the
treatment is provided to the patient must be decided by the enduring guardian.
(4) If —
(a)
subsections (2) and (3) do not apply; and
(b) the
patient has a guardian who —
(i)
is authorised to make a treatment decision in respect of
the treatment; and
(ii)
is reasonably available; and
(iii)
is willing to make a treatment decision in respect of the
treatment,
whether or not the
treatment is provided to the patient must be decided by the guardian.
(5) If —
(a)
subsections (2) to (4) do not apply; and
(b)
there is a person responsible for the patient under section 110ZD,
whether or not the
treatment is provided to the patient must be decided by the person
responsible.
110ZK. Reliance by health professional on
treatment decision
(1) In this section
—
“take treatment action”
means —
(a) to
commence or continue any treatment of a patient; or
(b) to
not commence or to discontinue any treatment of a patient.
(2) If a health
professional —
(a)
takes treatment action —
(i)
reasonably believing that the patient is unable to make
reasonable judgments in respect of the treatment action; and
(ii)
relying in good faith on what is purportedly a treatment
decision —
(I) in an advance health directive made by
the patient; or
(II) made by the
patient’s guardian or enduring guardian or the person responsible for
the patient under section 110ZD;
or
(b)
takes treatment action —
(i)
in circumstances where it is reasonable for the health
professional to rely on some other health professional having ascertained
whether the treatment action is in accordance with a treatment decision; and
(ii)
reasonably assuming that some other health professional
has ascertained that the treatment action is in accordance with a treatment
decision,
the health
professional is taken for all purposes to take the treatment action in
accordance with a treatment decision that has effect as if —
(c) it
had been made by the patient; and
(d) the
patient were of full legal capacity.
(3) For subsection
(2)(a)(ii), a health professional is taken to have relied in good faith on
what was purportedly a treatment decision if, after considering whether or not
to rely on it, the health professional acted honestly in relying on it.
(4) For the purpose of
determining under subsection (2)(b)(ii) whether the health
professional’s assumption was reasonable, the following matters must be
taken into account —
(a)
whether the health professional sighted any written evidence that some other
health professional had ascertained that the treatment action was in
accordance with the treatment decision;
(b)
anything else relevant to the determination.
110ZL. Validity of certain treatment decisions
If a health
professional —
(a)
commences or continues palliative care in relation to a patient; or
(b) does
not commence or discontinues any treatment of a patient,
in accordance with a
treatment decision that is —
(c) in
an advance health directive made by the patient; or
(d) made
by the patient’s guardian or enduring guardian or the person responsible
for the patient under section 110ZD,
the health
professional is taken for all purposes to have done so in accordance with a
valid treatment decision, even if an effect of doing so is to hasten the death
of the patient.
Division 3 — Jurisdiction of State Administrative
Tribunal
A person who, in the
opinion of the State Administrative Tribunal, has a proper interest in the
matter may apply to the Tribunal for a decision under this Division.
110ZN. Declaration as to who may make treatment
decision
(1) The State
Administrative Tribunal may declare whether section 110ZJ(2), (3), (4) or
(5) applies in respect of any treatment proposed to be provided to a patient.
(2) A declaration made
under subsection (1) has effect according to its terms.
(3) The Tribunal may
revoke a declaration made under subsection (1).
”.