Guardianship and Administration Regulations 2007

Guardianship and Administration Regulations 2007

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 .

W. J. E. COX

Governor

By His Excellency's Command,

STEVEN KONS

Minister for Justice and Workplace Relations

1.   Short title

These regulations may be cited as the Guardianship and Administration Regulations 2007 .

2.   Commencement

These regulations take effect on the day on which their making is notified in the Gazette.

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;

[Regulation 3 Amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] health care professional includes a medical practitioner and a psychologist;

[Regulation 3 Amended by No. 7 of 2012, s. 19, Applied:01 Jul 2012]

[Regulation 3 Amended by No. 7 of 2012, s. 19, Applied:01 Jul 2012] Poisons List has the same meaning as in the Poisons Act 1971 ;

[Regulation 3 Amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] 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.

4.   Application for guardianship order

(1)  For the purposes of section 19(2)(b) of the Act, an application to the Board for an order appointing a full or limited guardian is to include the following information:

(a) the name and address of each of the following:

(i) the applicant;

(ii) the person in respect of whom the application is made;

(iii) any health care professional who has diagnosed the disability of the person in respect of whom the application is made;

(iv) the proposed guardian;

(v) any other person who is concerned for the welfare of the person in respect of whom the application is made;

(b) the telephone number, facsimile number or email address of each person referred to in paragraph (a) ;

(c) the reasons why a guardian is needed;

(d) details of the financial affairs of the person in respect of whom the application is made;

(e) a report from a health care professional, in accordance with subregulation (2) , giving details of the disability of the person in respect of whom the application is made;

(f) details of any power of attorney executed by the person in respect of whom the application is made.

(2)  The report referred to in subregulation (1)(e) 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 judgments in respect of his or her own health, safety, welfare or financial affairs.

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

For the purposes of section 34(2)(c) of the Act, an application to revoke or amend the instrument of appointment of an enduring guardian is to contain the following information:

(a) the name and address of each of the following:

(i) the applicant;

(ii) the enduring guardian;

(iii) the appointer of the enduring guardian;

(b) the telephone number, facsimile number or email address of each person referred to in paragraph (a) ;

(c) the reasons for seeking the revocation or amendment.

6.   Special treatment

For the purposes of Part 6 of the Act, the following treatments are declared to be special treatments:

(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 mechanical, chemical, physical or otherwise.

7.   Medical or dental treatment without consent

For the purposes of section 41(2) of the Act, the 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 are those where –

(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; or

(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; or

(c) the treatment is electroconvulsive therapy (ECT); or

(d) the treatment involves a substantial risk to the person concerned 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; or

(e) the treatment is intended, or likely, to result in the removal of all or a substantial number of teeth.

8.   Consent by persons responsible

(1)  For the purposes of section 43 of the Act, the consent of a person responsible for a person to whom Part 6 of the Act applies is, subject to subregulation (2) , to be in writing.

(2)  The consent of the person responsible may be given orally if it is not practicable to give it in writing owing to the need to provide the treatment urgently, but that person must give written confirmation of the consent as soon as practicable to the registered practitioner concerned.

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

For the purposes of section 44(2)(c) of the Act, an application for the consent of the Board to the carrying out of any medical or dental treatment on a person to whom Part 6 of the Act applies is to contain the following information:

(a) the name and address of each of the following:

(i) the applicant;

(ii) the person in respect of whom the application is made;

(iii) the registered practitioner who recommended the treatment proposed;

(iv) the registered practitioner who will carry out the treatment;

(v) any person responsible for the person in respect of whom the application is made;

(vi) any other person who is concerned for that person's welfare;

(vii) any health care professional who has diagnosed the disability of the person in respect of whom the application is made;

(b) the telephone number, facsimile number or email address of each person referred to in paragraph (a) ;

(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 health care professional giving details of the disability of the person in respect of whom the application is made and stating how the disability affects the capacity of that person to give a consent to the proposed treatment and whether the person concerned is likely to become capable of consenting to the treatment;

(f) a report from a registered practitioner giving details of –

(i) the condition and proposed treatment; and

(ii) the risks of carrying out the treatment; and

(iii) the risks of failure to carry out the treatment; and

(iv) whether the proposed treatment can be postponed on the ground that better treatment may become available; and

(v) any alternative treatment available.

10.   Application for administration order

(1)  For the purposes of section 50(3)(b) of the Act, an application for an administration order is to contain the following information:

(a) the name and address of each of the following:

(i) the applicant;

(ii) the person in respect of whom the application is made;

(iii) any health care professional who has diagnosed the disability of the person in respect of whom the application is made;

(iv) the proposed administrator;

(v) any other person who is concerned for the welfare of the person in respect of whom the application is made;

(b) the telephone number, facsimile number or email address of each person referred to in paragraph (a) ;

(c) the reasons why an administrator is needed;

(d) full details of the financial affairs of the person in respect of whom the application is made;

(e) a report from a health care professional, in accordance with subregulation (2) , giving details of the disability of the person in respect of whom the application is made or, if there is no such report, a statement of reasons why the report cannot be procured.

(2)  The report referred to in subregulation (1)(e) 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 judgments in respect of his or her own financial affairs.

11.   Application for review of guardianship order or administration order

(1)  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:

(i) the applicant;

(ii) the represented person in respect of whom the review is sought;

(iii) the guardian of that person, the administrator of that person's estate or, if appropriate, both of them;

(iv) any other person who is concerned for the welfare of the person in respect of whom the review is sought;

(b) the telephone number, facsimile number or email address of each person referred to in paragraph (a) ;

(c) the reasons why the guardianship order or administration order, or both of them, should be continued, varied or revoked;

(d) details of the financial affairs of the person in respect of whom the review is sought;

(e) a report from a health care professional, in accordance with subregulation (2) , giving current details of any disability of the person in respect of whom the application is made.

(2)  The report referred to in subregulation (1)(e) 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 judgments in respect of his or her own health, safety, welfare or financial affairs.

12.   Applications to be supported by declaration

(1)  An application referred to in these regulations is to be supported by a declaration by the person making the application that all the information contained in the application is true and accurate, that it is not misleading and that no details relevant to the application have been omitted.

(2)  If any such application contains a statement that is false or misleading in a material particular, the person making the application is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units.

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

Notified in the Gazette on 17 October 2007

These regulations are administered in the Department of Justice.