Guardianship Regulation 2000

His Excellency the Governor, with the advice of the Executive Council, has made the following Regulation under the Guardianship Act 1987.

FAYE LO PO’, M.P.,Minister for Disability Services

Part 1 Preliminary

1 Name of Regulation

This Regulation is the Guardianship Regulation 2000.

2 Commencement

This Regulation commences on 1 September 2000.

Note—

This Regulation replaces the Guardianship Regulation 1995 which is repealed on 1 September 2000 under section 10 (2) of the Subordinate Legislation Act 1989.

3 Definitions

(1)  In this Regulation:

drug of addiction means a substance that is specified in Schedule 8 to the Poisons List under the Poisons and Therapeutic Goods Act 1966.

restricted substance means a substance that is specified in Schedule 4 to the Poisons List under the Poisons and Therapeutic Goods Act 1966.

simple sedation means a technique in which the use of a drug or drugs produces a state of depression of the central nervous system enabling treatment to be carried out, and in which:

(a)  verbal contact with the patient is maintained throughout the period of sedation, and

(b)  the drugs and techniques used have a margin of safety wide enough to render unintended loss of consciousness unlikely.

the Act means the Guardianship Act 1987.

(2)  The explanatory note, table of contents and notes in the text of this Regulation do not form part of this Regulation.

Part 2 Enduring guardians

4 Appointment of enduring guardian

For the purposes of section 6C (a) of the Act, the form set out in Schedule 1 is the prescribed form of instrument appointing a person as an enduring guardian.

5 Revocation of appointment of enduring guardian

For the purposes of section 6H (2) (b) (i) of the Act, the form set out in Schedule 2 is the prescribed form of instrument revoking the appointment of a person as an enduring guardian.

Part 3 Medical and dental treatment

6 Special medical treatment

The following medical treatment is declared to be special treatment for the purposes of Part 5 of the Act:

(a)  any treatment that 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) over a period or periods totalling more than 10 days in any period of 30 days,

(b)  any treatment that is carried out for the purpose of terminating pregnancy,

(c)  any treatment in the nature of a vasectomy or tubal occlusion,

(d)  any treatment that involves the use of an aversive stimulus, whether mechanical, chemical, physical or otherwise.

7 Experimental special medical treatment to which Tribunal may consent

The following medical treatment is prescribed special treatment for the purposes of section 45 (3) (b) of the Act:

(a)  any treatment that involves the administration to a patient of one or more restricted substances for the purpose of affecting the central nervous system of the patient, but only if the dosage levels, combinations or the numbers of restricted substances used or the duration of the treatment are outside the accepted mode of treatment for such a patient,

(b)  any treatment that involves the use of androgen reducing medication for the purpose of behavioural control.

8 Major medical treatment

The following medical treatment (not including any special treatment) is declared to be major treatment for the purposes of Part 5 of the Act:

(a)  any treatment that involves the administration of a long-acting injectable hormonal substance for the purpose of contraception or menstrual regulation,

Note—

An example of such a substance is medroxyprogesterone acetate, in suspension, commonly known as Depo-Provera.

(b)  any treatment that involves the administration of a drug of addiction,

(c)  any treatment that involves the administration of a general anaesthetic or other sedation, but not treatment involving:

(i)  sedation used to facilitate the management of fractured or dislocated limbs, or

(ii)  sedation used to facilitate the insertion of an endoscope into a patient’s body for diagnostic purposes unless the endoscope is inserted through a breach or incision in the skin or a mucous membrane,

(d)  any treatment used for the purpose of eliminating menstruation,

(e)  any treatment that involves the administration of a restricted substance for the purpose of affecting the central nervous system, but not a treatment:

(i)  involving a substance that is intended to be used for analgesic, antipyretic, antiparkinsonian, anticonvulsant, antiemetic, antinauseant or antihistaminic purposes, or

(ii)  that is to be given only once, or

(iii)  that is a PRN treatment (that is, given when required, according to the patient’s needs) that may be given not more than 3 times a month, or

(iv)  given for sedation in minor medical procedures,

(f)  any treatment that involves a substantial risk to the patient (that is, a risk that amounts to more than a mere possibility) 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)  exacerbation of the condition being treated, or

(vii)  an unusually prolonged period of recovery, or

(viii)  a detrimental change of personality, or

(ix)  a high level of pain or stress,

(g)  any treatment involving testing for the human immuno-deficiency virus (HIV).

9 Major dental treatment

The following dental treatment is declared to be major treatment for the purposes of Part 5 of the Act:

(a)  any treatment involving the administration of a general anaesthetic or simple sedation,

(b)  any treatment intended, or likely, to result in the removal of all teeth,

(c)  any treatment likely to result in the patient’s ability to chew food being significantly impaired for an indefinite or prolonged period.

10 Requests for consent to the carrying out of medical or dental treatment

(1)  A request under section 40 of the Act for consent to the carrying out of minor medical treatment or dental treatment is to be made in writing. However, the request may be made orally if:

(a)  it is not practicable to make the request in writing, or

(b)  the person whose consent is sought does not require it to be made in writing.

(2)  A request under section 40 of the Act for consent to the carrying out of major medical treatment is to be made in writing. However, the request may be made orally if it is not practicable to make the request in writing because of the need to provide the treatment quickly.

(3)  A person who requests a consent referred to in this clause must give written confirmation of the request to the person whose consent is sought if the request was made orally and:

(a)  sought consent to major treatment, or

(b)  the person whose consent is sought requires the written confirmation.

11 Consents to the carrying out of medical or dental treatment

(1)  A consent under section 40 of the Act to the carrying out of minor medical treatment or dental treatment is to be given in writing. However, the consent may be made orally if:

(a)  it is not practicable to give the consent in writing, or

(b)  the person by whom the treatment is to be carried out does not require it to be given in writing.

(2)  A consent under section 40 of the Act to the carrying out of major medical treatment is to be given in writing. However, the consent may be given orally if it is not practicable to do so in writing because of the need to provide the treatment quickly.

(3)  A person who gives an oral consent as referred to in this clause must give written confirmation of the consent to the person who requested the consent if:

(a)  the consent related to the carrying out of major treatment, or

(b)  the person who requested consent requires the written confirmation.

12 Clinical records

(1)  A person by whom medical or dental treatment is carried out pursuant to a consent given under Part 5 of the Act is to keep a written record of:

(a)  the name and address of the person by whom the consent was given, and

(b)  the date on which the consent was given, and

(c)  the conditions (if any) on which the consent was given, and

(d)  the nature of the treatment carried out,

and if the consent was given in writing, is to keep a copy of the consent together with the written record.

(2)  A person by whom such a record is kept must allow the record, and any copy of consent kept with the record, to be inspected at any reasonable time by an authorised officer.

(3)  Nothing in this clause requires a person to retain a record of any medical or dental treatment carried out by the person for a period of more than 7 years after the date on which the treatment is carried out.

Part 4 Reciprocal arrangements

13 Corresponding laws

For the purposes of the definition of corresponding law in section 48A of the Act, the following laws are declared to be corresponding laws for the purposes of Part 5A of the Act:

(a)  Guardianship and Administration Act 1986 of Victoria,

(b)  Guardianship and Administration Act 1993 of South Australia,

(c)  Adult Guardianship Act 1988 of the Northern Territory,

(d)  Aged and Infirm Persons’ Property Act 1979 of the Northern Territory,

(e)  Guardianship and Administration Act 1990 of Western Australia,

(f)  Guardianship and Administration Act 1995 of Tasmania,

(g)  Guardianship and Management of Property Act 1991 of the Australian Capital Territory,

(h)  Guardianship and Administration Act 2000 of Queensland,

(i)  Protection of Personal and Property Rights Act 1988 of New Zealand.

Part 5 Miscellaneous

14 Service of notices and other instruments

(1)  For the purposes of section 98 (1) (c) of the Act, a notice or other instrument may be published in a daily newspaper circulating generally throughout the Sydney Metropolitan Area.

(2)  For the purposes of section 98 (2) (b) of the Act, a notice or other instrument published in accordance with this clause is to be taken to have been served at the end of 7 days after it was published.

15 Savings provision

Any act, matter or thing that, immediately before the repeal of the Guardianship Regulation 1995, had effect under that Regulation, is taken to have effect under this Regulation.

Schedule 1 Form of appointment of enduring guardian

(Clause 4)

Appointment of one person as an enduring guardian (or appointment of 2 or more people as enduring guardians with the same functions)

I [insert your name, address and occupation], appoint [insert the name, address and occupation of your proposed guardian or, if you want to appoint more than one guardian with the same functions, insert the name, address and occupation of each of your proposed guardians] to be my guardian (or guardians) if because of a disability I am partially or totally incapable of managing my person.

If that happens, I authorise my guardian (or each of my guardians) to exercise the following functions:

•  to decide where I live,

•  to decide what health care I receive,

•  to decide what other kinds of personal services I receive,

•  to consent to the carrying out of medical or dental treatment on me (in accordance with Part 5 of the Guardianship Act 1987).

Note.

You can cross out any or all of the above functions if you do not want your guardian or guardians to perform any or all of them.

(You need to put your initials beside any writing that you have crossed out. If you cross out all of the functions, you need to list the functions that you want your guardian or guardians to perform.)

If you would prefer, you can give your guardian or guardians power to perform only part of any function.

I also authorise my guardian (or each of my guardians) to exercise the following additional functions: [you can add any additional functions here or leave this blank by crossing it out and putting your initials beside it].

I require that my guardian (or each of my guardians) exercise his or her functions subject to the following directions: [you can add any specific requirements or limitations here or leave this blank by crossing it out and putting your initials beside it].

Signature:

Date:

Acceptance of appointment

I accept my appointment as enduring guardian.

Signature of guardian (or of each guardian):

Date:

Certificate of witness

I ............................................................
of ......................... being a solicitor/barrister/Clerk of a Local Court certify:

(a)  that I witnessed the signing of this instrument by both the person making the appointment and the appointee/appointees in my presence, and

(b)  that each person signed the instrument voluntarily and that each appeared to understand the effect of the instrument.

Signature of witness:

Date:

Note.

Appointment of 2 or more people as guardians

If you want to appoint more than one guardian and you want your guardians to have the same functions and so act jointly, then you should fill out this form by inserting the names of all your proposed guardians in the place indicated. Each person must sign this form to show that he or she accepts the appointment.

However, if you want your guardians to have different functions and to act separately, you should fill out a different form for each proposed guardian.

Schedule 2 Form of revocation of appointment of enduring guardian

(Clause 5)

Revocation of appointment of enduring guardian

I, [insert your name, address and occupation] revoke the appointment of [insert the name of your guardian or guardians] as my guardian.

I understand that this revocation will not be effective unless the guardian is or has been given written notice of the revocation.

Signature:

Date:

Certificate of witness

I ............................................................
of ......................... being a solicitor/barrister/Clerk of a Local Court certify that:

(a)  I witnessed the signing of this instrument by the person revoking the appointment in my presence, and

(b)  he/she signed the instrument voluntarily and appeared to understand the effect of the instrument.

Signature of witness:

Date: