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Chapter 9 - Enduring guardianship

23 Jun 2017 - 11:12 | Version 8 |

Contributed by Nick O'Neill and Carmelle Peisah and current to 28 February 2017

9.1 Introduction

This chapter describes key aspects of the power, given in differing ways and to different extents in State and Territory legislation to people with the appropriate decision-making capacity, to make arrangements for the possibility that they lose their decision-making capacity, by appointing one or more substitute decision-makers for personal decisions.

Because of the different way each State and Territory has gone about legislating in relation to this matter, those who may be appointed are called enduring guardians, (enduring) attorneys for personal matters or substitute decision-makers or just decision maker. In this chapter, when we deal with a particular State or Territory we will use the descriptor used in that jurisdiction (e. g. enduring guardian in NSW). When dealing with them collectively we will call all the appointees enduring guardians, but sometimes if we are dealing, as a group, with the jurisdictions that use one of the other descriptors, we will use that descriptor.

The concept of enduring guardianship was first introduced, in Australia, by the Guardianship and Administration Act 1993 (SA) which came into force in 1995. Since then all the States and Territories have enacted legislation introducing the concept enduring guardianship or developments or variations of that concept.

The last jurisdiction to enter the field, the Northern Territory, introduced the widest ranging version of the concept on 17 March 2014. Prior to that date, it was not possible for a person 18 years or older to appoint another adult person to make substitute personal decisions for them if they lost their capacity to make those decisions. It was possible to appoint attorneys in enduring powers of attorney to make financial decisions for them under the Powers of Attorney Act (NT). However, since 17 March 2017 it has not been possible to make an enduring power of attorney in the Northern Territory. Instead, it has been possible under the Advance Personal Planning Act (NT) to make an advance personal plan that contains advance consent decisions about future health care and advance care statements in which the maker of such a plan sets out their views, wishes and beliefs as a basis for anyone who has to make decisions for them will act when making such a decision.(1) Also any adult with planning capacity may make an advance personal plan appointing a decision maker to make decisions from them about either their personal or financial matters or both when they have lost decision-making capacity in relation to particular matters.(2) The Advance Care Planning Act (NT) will be dealt with under various headings below in this Chapter. However it is also dealt with in Chapters 6 to 12 and 12, 13 and 14.

South Australia and Victoria have repealed the provisions in their legislation relating to the appointment of enduring guardians and have taken two different approaches to empowering people to appoint substitute decision-makers for personal decisions.

In South Australia, as from 1 July 2014, with the commencement of the Advance Care Directive Act 2013 (SA), appointments of enduring guardians, medical powers of attorney and anticipatory directions were replaced by a single document called an advanced care directive. The South Australian government has developed a very useful website which explains what an care directive is and assists adults, that is persons 18 years and older, to make an advance care directive.(3) Because a person appointed as a substitute decision-maker under a South Australian advance care directive will often be able to make substitute personal decisions for the person who appointed them when that person has lost the capacity to make those particular decisions, the South Australian legislation will be discussed under the same headings as the enduring guardianship legislation in each of the other States and the Australian Capital Territory.

In Victoria, on 1 September 2015 the Powers of Attorney Act 2014 (Vic) came into force. It replaced the processes of appointing enduring guardians with processes for appointing attorneys for personal matters in enduring powers of attorney. Nevertheless, appointments of enduring guardianship already in operation will remain in operation and those already made but not yet in operation will be able to come into operation. However these "old enduring powers of guardianship" will be subject to a number of the provisions of the new Act. As a consequence some of the aspects of this chapter dealing with enduring guardianship will remain relevant. Otherwise Victorian enduring powers of attorney for personal matters will be dealt with, along with Victorian enduring powers of attorney for financial matters in Chapter 10.

Another important thing that the Powers of Attorney Act 2014 (Vic) does is to introduce the concept of supportive attorneys. These are adults who another adult person may appoint to act as their 'supportive attorney' to support them to make and then act on (give effect to) those decisions. Depending on the scope of the role given to a supportive attorney in their appointment, those decisions any include decisions in relation to personal matters as defined in the Act.(4) Supportive attorneys and their role is discussed in Chapter 10.13.

9.2 The right of persons with the decision-making capacity to do so to appoint others to make personal decisions for them

In all the States and the two Territories, adults with the decision-making capacity to do so may appoint other adults they trust to become their enduring guardians or attorneys for personal matters or substitute decision-makers and make personal decisions for them when they lose the capacity to make those decisions for themselves. Those so appointed are called enduring guardians in New South Wales, Tasmania and Western Australia. They are appointed under legislation that sets out the arrangements for their appointment and associated matters.(5) In Queensland, the Australian Capital Territory and, since 1 September 2015, Victoria where the powers of attorney legislation has been extended, attorneys may be appointed under enduring powers of attorney to exercise not only financial management and other similar functions as agent on behalf of the person appointing them, but also personal decision-making functions on behalf of their appointors.(6) They are known as attorneys for personal matters in Queensland and Victoria and attorneys for personal care matters in the Australian Capital Territory. In South Australia, where advance care directives replaced appointments of enduring guardians, they are called substitute decision-makers.(7) In the Northern Territory where legislation covering this concept was introduced for the first time in 2014, they are just called decision makers.(8)

9.3 Capacity to appoint an enduring guardian or an attorney under an enduring power of attorney for personal matters or a substitute decision-maker under an advance care directive in South Australia or an advance personal plan in the Northern Territory

9.3.1 The relevant legislation

In New South Wales and Tasmania the legislation, which is in identical terms, does not refer to a test for capacity to appoint an enduring guardian.(9) The only statutory requirement is that the person be 18 years or older.

That used to be the case in Victoria, but since the replacement there of appointments of enduring guardianship with enduring powers of attorney that can apply to personal affairs, the question of capacity is dealt with in the Powers of Attorney Act 2014 (Vic), see Chapter 10.3.3. For appointments of enduring guardians already in operation or able to come into operation, questions of capacity are dealt with under the new legislation.(10)

In Western Australia the person must be 18 years or older and have "full legal capacity" which is not defined.(11) Consequently, the test for capacity to appoint an enduring guardian is to be found in the common law set out in 9. 3. 2.

In Queensland under the general principles of the Powers of Attorney Act 1998 (Qld), a person is presumed to have capacity.(12) Nevertheless the Act states that a person may make an enduring power of attorney only if they understand the nature and effect of the enduring power of attorney. Furthermore, the Act states that understanding the nature and effect of the enduring power of attorney includes understanding the following matters:
  1. that they may, in the power of attorney, specify or limit the power to be given to an attorney and instruct an attorney about the exercise of the power,
  2. when the power begins,
  3. that once the power has begun, the attorney has power to make, and will have full control over, the matters covered by the power subject to terms or information about exercising the power included in the enduring power of attorney,
  4. that they may revoke the enduring power of attorney at any time when they are capable of making an enduring power of attorney giving the same power to an attorney,
  5. that the power of attorney continues even if they lose capacity and become "a person who has impaired capacity", and
  6. that at any time they are not capable of revoking the enduring power of attorney, because they have become "a person who has impaired capacity", while they may still be able to express their views, they will be unable to effectively oversee the use of the power.(13)
The Australian Capital Territory legislation is similar to the Queensland Act. The Powers of Attorney Act 2006 (ACT) states that, in the absence of evidence to the contrary, a person who makes a power of attorney about personal care or health care matters is taken to understand the nature and effect of making the power of attorney.(14) That Act also notes that the term "understanding the nature and effect of making a power of attorney" includes understanding the same matters as are set out in the Queensland Act.(15)

It should be noted that for the purposes of the ACT Act, a person has impaired decision-making capacity if they cannot make decisions in relation to their affairs or do not understand the nature or effect of the decisions they make in relation to those affairs.(16) A person does not have impaired decision-making capacity only because they have certain attributes or behaviours set out in section 91 of the Act.

In South Australia, the Advance Care Directives Act 2013 (SA) creates at least two kinds of advance care directives; advance care directives related essentially to medical treatment, particularly medical and related treatment at the end of life and advance care directives that cover not only the medical treatment just referred to but also appoint one or more substitute decision-makers authorised by the appointor to make (substitute) decisions on his or her behalf in relation to health care, residential and accommodation arrangements and personal affairs.(17) The second kind of advance care directive is similar to an appointment of enduring guardianship in which an adult appoints one or more other adults to make decisions for them in relation to personal matters of the kind that guardians appointed by the South Australian Civil and Administrative Tribunal (SACAT) can make or enduring guardians appointed under the now repealed provisions of the Guardianship and Administration Act 1993 (SA) used to be able to make. The Advance Care Directives Act 2013 (SA) makes it clear that an advance care directive does not create a power of attorney and notes that a power of attorney made under the Powers of Attorney and Agency Act 1984 (SA) is required appointing a substitute decision-maker as an attorney before they could deal with the financial or legal affairs of the person giving the advance care directive.(18)

The Advance Care Directives Act 2013 (SA) does not appear to define the word "adult" or the term "competent adult". However, we have assumed that to be a "competent adult to give an advance care directive" a person must be 18 years of age or older and meet the criteria set out in the Act.(19) These require that the competent adult know what an advance care directive is and the consequences of "giving" one to one or more substitute decision-makers.(20)

It should be noted that the Advance Care Directives Act 2013 (SA) provides that any appointment of an enduring guardian, made under s. 25 of the Guardianship and Administration Act 1993 (SA), that was "in force" when the Advance Care Directives Act 2013 (SA) came into force, namely 1 July 2014, will be taken to be an advance care directive made under the Advance Care Directives Act 2013 (SA). We take the use of the term "in force" in this context means that any appointment of an enduring that had been made by an adult appointor with the capacity to make such an appointment, and the appointment has been made in compliance with all the requirements of s. 25 of the Guardianship and Administration Act 1993 (SA) will remain valid even if it is not yet being used for the purpose for which it was made because the appointor has not yet become mentally incapacitated in the sense of not being able to make their own decisions about their health care, as defined in s.3 of the Advance Care Directives Act 2013 (SA), or their personal affairs (including residential or accommodation arrangements).(21) However, from 1January 2016, if not before, appointments of enduring guardians have been dealt with under the provisions of the Advance Care Directives Act 2013 (SA) as if they were advance care directives made under that Act.(22)

As already noted, in South Australia the Advance Care Directives Act 2013 (SA) provides that a competent adult may give an advance care directive if they understand what an advance care directive is and the consequences of giving one. However it also provides a test for impaired decision-making capacity that applies to capacity to give an advance care directive. A person has incapacity for a particular decision if, including giving an advance care directive if they are not capable of:
  1. understanding any information that may be relevant to the decision (including information relating to the consequences of making a particular decision); or
  2. retaining such information; or
  3. using such information in the course of making the decision; or
  4. communicating his or her decision in any manner.(23)
However the Act also sets out sets out a number of matters that will not lead to a person being treated as having impaired decision-making capacity in relation to a particular decision. These are that:
  1. a person will not be taken to be incapable of understanding information merely because they are not able to understand matters of a technical or trivial nature; and
  2. a person will not be taken to be incapable of retaining information merely because they can only retain the information for a limited time; and
  3. a person may fluctuate between having impaired decision-making capacity and full decision-making capacity; and
  4. a person's decision-making capacity will not be taken to be impaired merely because a decision made by them results, or may result, in an adverse outcome for the person.(24)
As its name suggests, the Advance Personal Planning Act (NT) creates, in statutory form, all three of the enduring appointments and statements designed to take effect when the maker of them has lost the capacity to make the decisions covered by them. In other words in the Northern Territory a person may, in a single document, appoint another person (or other persons) to make decisions for them about personal or financial matters or both when they have lost the capacity to make particular decisions for themselves and, in the same document, make an advance care directive, including giving binding advance consent decisions about health care action and setting out their views wishes and beliefs as the basis for the appointed decision maker to make the kinds of decisions in relation to the personal and financial matters they have been given authority by the maker of the plan.(25)

In the Northern Territory only an adult may make an advance personal plan.(26) The Advance Personal Planning Act (NT) requires an adult to have "planning capacity" in order to make such a plan. The Act also provides that a person has planning capacity if they have decision-making capacity for making an advance personal plan and do not have an adult guardian appointed for them or a manager appointed for them under the Guardianship of Adults Act (NT).(27) However the Advance Personal Planning Act (NT) has test for decision-making capacity, which is a restatement of the established common law test for capacity. It provides that a person has decision-making capacity for a matter if they have capacity to:
  1. understand and retain information about the matter; and
  2. weigh the information in order to make a decision about the matter; and
  3. communicate that decision in some way.(28)
The Act also points out that an adult is presumed to have decision-making capacity for a matter until the contrary is shown.(29) Consequently it is only when a person cannot do the things set out in the last paragraph in relation to a matter that it can be said that they do not have decision-making capacity to make a decision in relation to that matter.

The Act goes on to state that, in relation to impaired decision-making capacity, the cause of the impairment is immaterial. Importantly the Act points out that an adult does not have impaired decision-making capacity for a matter only because they:
  1. have a disability, illness or other medical condition (whether physical or mental); or
  2. engage in unconventional behaviour or other form of personal expression; or
  3. choose a living environment or lifestyle with which other people do not agree; or
  4. make decisions with which other people do not agree; or
  5. do not speak English to a particular standard or at all; or
  6. do not have a particular level of literacy or education; or
  7. engage in particular cultural or religious practices; or
  8. do or do not express a particular religious, political or moral opinion; or
  9. is of a particular sexual orientation or identity or expresses particular sexual preferences; or
  10. takes or have taken, or are or have been dependent on, alcohol or drugs (but the effect of alcohol or drugs may be taken into account in determining whether the adult has impaired decision-making capacity for the matter); or
  11. engage or have engaged in illegal or immoral conduct.(30)

9.3.2 The common law tests for capacity - relevant generally, but to New South Wales, Tasmania and Western Australia in particular

The initial test for capacity to make documents with legal effect, often called instruments, is long established in Australian common law. It was laid down in 1954 by Dixon CJ, Kitto and Taylor JJ of the High Court of Australia as follows:

The mental capacity required by law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of the transaction when it is explained.(31)

In 1988 Young J of the Supreme Court of New South Wales noted that when considering whether a person is capable of giving that an enduring power of attorney, which is not unlike an appointment of an enduring guardian:

[O]ne would have to be sure not only that she understood that she was authorising someone to look after her affairs but also what sort of things the attorney could do without further reference to her.(32)

In England the accepted view appears to be that to have the capacity to make an enduring power of attorney the principal (the giver of the power) must understand nature and effect of their appointment is that:
  1. the attorney can take complete control of their financial affairs (unless the terms of the power of attorney limit this),
  2. the attorney can do anything principal can do,
  3. the attorney's authority will continue after principal loses capacity, and that,
  4. the enduring power of attorney effectively becomes irrevocable if principal loses capacity (because the principal can no longer revoke the power of attorney).(33)
This approach was followed in Queensland before the enactment of the Powers of Attorney Act 1998 (Qld) subject to the caveat noted by Cullinane J that it is "not necessary for a person to have capacity to understand all of the implications or legal consequences of the grant of the power of attorney".(34) Nevertheless, in Queensland and the Australian Capital Territory, appointors (the makers of enduring powers of attorney) must understand each matter set out in the statutory test for capacity. We suggest that in those States that have no statutory test for assessing capacity to make an appointment of an enduring guardian, it is safe to assume that the Gibbons v Wright approach is the starting point and that an appointor will be treated as having capacity if they are able to understand the nature of the appointment they are making when it is explained to them.(35) While it would not be necessary for them to understand all the implications or legal consequences of the appointment, we suggest that in order for it to be said that they understood the nature and effect of the appointment , they would need to be advised that, by making an appointment of enduring guardianship they:
  1. would be appointing someone to make all the personal decisions for them that a guardian is authorised by legislation or the common law to make or, if the appointment is limited, just those decisions set out in appointment of enduring guardianship, during any period in which they had lost their capacity, even if they subsequently regained their capacity,
  2. would be able to instruct the enduring guardian about the making of those decisions in the appointment document,
  3. would not be able to revoke the appointment if they lose capacity, and
  4. while they could, if they were still physically able to do so, communicate their views to their enduring guardian during any periods in which they have lost their capacity, their enduring guardian would not be bound by those views but would be obliged to make decisions for them in their best interests;
and that they appeared to understand those matters. Consequently, we suggest that it is good practice for any lawyer assisting a client to appoint an enduring guardian other than in Queensland or the Australian Capital Territory to advise their clients as to the matters set out in this paragraph.

Lawyers in Queensland and the Australian Capital Territory should advise their clients of the matters set out above and contained in the relevant powers of attorney legislation.(36) If a client is unable to understand any of those matters when explained, it is suggested that they would lack the capacity to appoint an enduring guardian.

Collier and others have noted at least anecdotal evidence the failure by lawyers when taking instructions for the making of enduring documents from those whose symptoms of declining capacity would have been apparent at the time the instructions were taken to consider the elements of capacity and ask probing questions. Instead, they have been prepared to rely on questions which require a "yes" or "no" answer for their assessment of their client's capacity. Adopting the approach recommended by Collier and others to lawyers when obtaining instructions for the drafting of enduring powers of attorney for financial and personal matters and similar documents in Queensland, it is suggested that it is pertinent when obtaining instructions for the drafting of appointments of enduring guardians and similar enduring powers of attorney elsewhere in Australia that lawyers to inquire, "at least in a general way", into:
  1. the person's account of their family and other background,
  2. their health and personal circumstances,
  3. the type of decisions that are likely to be needed in relation to their welfare in the future,
  4. what the person's wishes are in these respects,
  5. why the prospective guardian or attorney has been selected, and
  6. whether there has been any consideration of that person's skills to undertake the personal decisions required of them.(37)
It is also suggested that if a lawyer is unclear whether their client has the capacity to appoint an enduring guardian they should seek the opinion of a health professional qualified to assess mental capacity and advise them of the matters that their client must be capable of understanding before they can make an appointment. They should not assist their client to complete the appointment process until they have received a report from the capacity assessor advising that their client has capacity.(38)

For an example of a case in which it was held that a person who appointed an enduring guardian had no capacity to understand the nature and effect of such an appointment when he made it, see BN [2013] TASGAB 21.

We note the legislative test for decision-making capacity in s.4 of the Powers of Attorney Act 2014 (Vic). It sums up, in statutory form, the position reached by the judges on the question of decision-making capacity, but subject what Lindsay J of the NSW Supreme Court pointed out in Scott v Scott(39), namely that what is required for a person making an enduring power to have capacity to make such a document was to understand "the general nature" of what they were doing by executing the enduring power of attorney.

9.3.3 The clinician's assessment of capacity to appoint or revoke an appointment of an enduring guardian (New South Wales, South Australia Tasmania); Attorney for personal matters (Victoria, Australian Capital Territory and Queensland), substitute decision maker (South Australia), or decision maker (Northern Territory)

It is important for clinicians making assessments about a person's capacity to make an advance directive in South Australia or and advance personal plan in the Northern Territory, to appreciate that the matters for consideration set out below in this section only apply if the person is intending to appoint a substitute decision-maker (Sth Aust) or a decision maker (NT).

When assessing a person's capacity to appoint an attorney under an enduring power of attorney in Queensland and the Australian Capital Territory, the clinician must put their mind to whether the person is appointing an attorney for personal or financial matters or both. Consequently, the lawyer drafting the power of attorney document should advise the clinician of the terms of the draft document. The clinician's assessment must be directed to the type of appointment being made, but made in terms of the Queensland (and Australian Capital Territory) statutory criteria set out above at 9.3.1. For Victoria see, Chapter 10.3.3.

We use the generic approach to capacity assessment adopted across this text, namely;
  1. the "why" of assessment;
  2. global assessment of mental state and cognition;
  3. the "what" of assessment;
  4. the "who" of the assessment ;
  5. the "freedom" of the assessment; and
  6. opportunities for supported decision-making
This approach remains consistent with, and is inclusive of, the requirements outlined within the statutory tests for capacity in various states. For example, as stated above, in the Northern Territory, the Advance Personal Planning Act (NT). It provides that a person has decision-making capacity for a matter if they have capacity to:
  1. understand and retain information about the matter; and
  2. weigh the information in order to make a decision about the matter; and
  3. communicate that decision in some way.(40)
In South Australia, the Advance Care Directives Act 2013 states that a person has incapacity for a particular decision if, including giving an advance care directive if they are not capable of:
  1. understanding any information that may be relevant to the decision (including information relating to the consequences of making a particular decision); or
  2. retaining such information; or
  3. using such information in the course of making the decision; or
  4. communicating his or her decision in any manner.(41)
We suggest that having assessed the person's understanding of the "what" and the "who" of the decision, and assessing their cognition and mental state, thereby assessing their ability to retain, weigh and communicate the decision, the clinician will be able to conclude in regards to the statutory tests for capacity. The approach below merely provides an operationalised and structured process for assessment that both deals with the required tests in Northern Territory and South Australia, but meets other obligations of clinicians approaching this task.

9.3.3.1 The "why" of the appointment

What is the trigger for the assessment? Who has initiated the appointment? Is there a valid trigger to rebut the presumption of capacity? Is there a valid appointment of enduring guardianship already in place? Is the person aware of this? Has it been revoked? Is the appointment in the best interests of the maker or someone else? Not unusually, as discussed in Chapters 2, 4, and 10, family members in conflict vie to be the decision-maker and the execution of these documents often provides an arena to play out various sibling or blended family rivalries.

9.3.3.2 Global assessment of mental state and cognition

It is important to place the specific assessment of capacity in the context of the person's overall mental functioning and health status. A global assessment of the person's mental state and cognitive function should be made. This should include an assessment of memory, relevant to "retaining" in the statutory tests for capacity, although the standard is usually based on retaining the information for as long as is required to make the decision. Having said that, memory for other matters is also important. For example, remembering that you have lived with and been cared by your daughter, and have entrusted her with previous enduring guardianship appointments, while previously being estranged from your son, who now convinces you that he is a better candidate for an enduring guardianship appointment. Additionally, as outlined in the statutory tests for capacity, "weighing" and "consequences" are important, and accordingly, assessment should include specific frontal and executive functions of judgment, reasoning and planning.

9.3.3.3 The "what" of the appointment

As articulated above, guidance as to what the person must understand can be found in the legislation in Queensland and the Australian Capital Territory. For example, in Queensland the Powers of Attorney Act 1998 (Qld), states that understanding the nature and effect of the enduring power of attorney includes understanding the following matters:
  1. that they may, in the power of attorney, specify or limit the power to be given to an attorney and instruct an attorney about the exercise of the power;
  2. when the power begins;
  3. that once the power has begun, the attorney has power to make, and will have full control over, the matters covered by the power subject to terms or information about exercising the power included in the enduring power of attorney itself;
  4. that they may revoke the enduring power of attorney at any time when they are capable of making an enduring power of attorney giving the same power to an attorney;
  5. that the power of attorney continues even if they lose capacity and become "a person who has impaired capacity"; and
  6. that at any time they are not capable of revoking the enduring power of attorney, because they have become "a person who has impaired capacity", while they may still be able to express their views, they will be unable to effectively oversee the use of the power.(42)
Where there are no such lists of matters that need to be understood, but where statutory tests for capacity require an understanding of information relevant to the decision (e.g. in South Australia, and Northern Territory); or where common law references to understanding the nature and the effect of the decision apply (e.g. New South Wales, Tasmania and Western Australia) we suggest the following enquiries may assist in the assessment of the "what" of capacity in this context:
  1. does the person understand when it is explained to them, that they are authorising someone to make decisions in the future, when they are no longer capable, about the specific domains nominated in the document, such as accommodation, lifestyle, health such as medical and dental consents, or access to others?; and
  2. does the person understand that they can revoke the enduring guardian appointment while they have the capacity to do so?

9.3.3.4 The "who" of the appointment

As has been noted elsewhere, dementia may affect a person's appraisal of others.(43) In regards to assessing the person's ability to "weigh" the "who" of the appointment of an enduring guardian [or equivalent], consider some of the following questions:
  1. why has the person been selected for appointment as a guardian?
  2. has the person executed any enduring guardian appointments previously?
  3. if so, how frequently have there been changes (i.e. revocations and new appointments)?
  4. does the person recall making these past appointments and revocations?
  5. have they considered the trustworthiness and wisdom of the person they are appointing, and any past conflict with that person?
  6. is this appointment in keeping with previous appointments (e.g. has someone else been consistently appointed as guardian in the past)?
  7. what is the history of the relationship between the person and the guardian and has there been any radical change in that relationship coinciding with the onset or course of dementia?

9.3.3.5 The "freedom" of the appointment

Has all the relevant information been given to the person in a way they can understand? Is the person making the appointment freely and voluntarily, not being unduly influenced or "schooled" to make the appointment?(44) When undertaking assessments of people who wish to appoint an enduring guardian, it is important to undertake the interview in private.

9.4 Appointing enduring guardians, enduring attorneys for personal matters and substitute decision-makers in South Australia or decision makers in the Northern Territory

9.4.1 Who may be appointed?

A person has to be an adult, 18 years or older, to be appointed as an enduring guardian etc. It is wise to appoint one or more members of one's family or one or more long term friends who can be trusted to carry out their functions as enduring guardians in the best interests of the person appointing them and to follow any instructions or directions given to the guardians or their equivalents in the document appointing them.

Certain people cannot be appointed as enduring guardians. In Tasmania those prohibited are those who are, in either a professional or an administrative capacity, directly or indirectly responsible for or involved in the medical care or treatment of the appointor. Whether only medical care and medical treatment are covered or the prohibition on appointment applies to the owners and staff of aged care facilities or other service provider agencies is an open question. However, the appointment of an enduring guardian lapses if the enduring guardian joins a prohibited category.(45)

In Victoria the prohibition applies to those who are, either directly or indirectly, responsible for or involved in the care, treatment or accommodation of the appointor.(46) These matters are dealt with by VCAT in the exercise of its powers under the Powers of Attorney Act 2014 (Vic) see, Ch 10.5.1.(47)

In New South Wales the prohibition extends even further and to include any of those already mentioned together with anyone involved in the provision of support services to the appointor and anyone who is the spouse, parent, child, brother or sister of any of those already mentioned.(48) However, if a person who is an enduring guardian enters a prohibited category in relation to a person they are the enduring guardian of their appointment does not lapse.(49)

The only requirements in Western Australia are that the enduring guardian is 18 years or older and has full legal capacity.(50)

In South Australia no adult can be appointed as a substitute decision-maker unless they are competent.(51) However certain groups of competent persons cannot be appointed. These are:
  1. a health practitioner who is responsible (whether solely or with others) for the health care of the person giving the advance care directive. The term health practitioner is widely defined to include anyone who practises a health profession within the meaning of the Health Practitioner Regulation National Law (SA) as well as anyone who provides an ambulance service, any member of the staff of the SA Ambulance Service Inc who provides medical treatment or a person who practises as a paramedic;(52) 1 a paid carer of the person giving the advance care directive;(53) and
  2. any other person of a class prescribed by the regulations for the purposes of this section.(54)
In Queensland the equivalent of enduring guardians are those attorneys appointed under enduring powers of attorney in which they are given powers for personal and health care matters. The Adult Guardian may be appointed. So may the Public Trustee or a trustee company. Private persons must be at least 18 years and they cannot be a paid carer, health provider or service provider for any residential service where the maker of the appointment is resident.(55)

In the Australian Capital Territory, an enduring guardian, called an attorney for a personal care or health care matter, must be an adult and a person. Neither a corporation nor the Public Advocate may be appointed.(56)

In the Northern Territory an adult may make as many advance personal plans as they wish.(57) While this could lead to conflicts between plans, there may be good reason for making a number of advance personal plans.(58) For example, instead of appointing a (substitute decision-maker to make all decisions for them, a person may wish to appoint one person to make decisions for them in relation care and welfare matters and another person to make decisions in relation financial matters. They may also wish to appoint yet another person to make decisions in relation to end of life matters and to ensure that their binding advance care decisions are complied with and their other views whether set down in the advance personal plan or not are given effect to.

Those who may be appointed as a decision maker in the Northern Territory are:
  1. an individual who is at least 18 years of age; or
  2. a licensed trustee company ; or
  3. the Public Trustee; or
  4. the Public Guardian.(59)
Note that a person under 18 may be appointed as a decision maker, but their appointment does not take effect until they turn 18.(60)

We suggest that while no individual person is disqualified from being appointed as a decision maker under the Advance Personal Planning Act (NT), it is inappropriate for those who provide services to a person for remuneration to be appointed as a decision maker for that person. As already noted, the Act specifically provides that the Public Guardian may be appointed.

We suggest that to appoint a person who owns, manages or otherwise works in a residential aged care facility or a person who provides substantial services to a person in in the person's home or elsewhere to manage the person's financial affairs is to create a conflict of interests for the person appointed exposing them to liability for any breach of their legal duties to the person who appointed them.

9.4.2 Appointment procedures

The legislation of each State and Territory sets out procedures for an adult with the requisite decision-making capacity to appoint an enduring guardian or make an enduring power of attorney for personal matters or appoint a substitute decision-maker in an advance care directive in South Australia or a decision maker in the Northern Territory.(61) It is not intended to discuss those procedures here as helpful information is available on the websites of guardianship tribunal or public guardians or advocates of the States and the Territories. Nevertheless, it should be noted that in Tasmania an appointment of an enduring guardian is not effective until it is registered with the Tasmanian Guardianship and Administration Board.(62) In the Northern Territory any advance personal plan may be registered at the Land Titles Office. However, any dealing in land conducted on the basis of an advance personal plan conferring authority to enter into the dealing has no effect unless the advance personal plan is registered.(63)

9.4.3 When do appointments of enduring guardians or their equivalents commence?

In all the States and Territories an enduring guardian or attorney for personal matters, or their equivalents may carry out their powers or functions at any time that the person who has appointed them does not have the capacity to make personal decisions for themselves.(64) Appointors may lack capacity for a period and regain it subsequently or they may lose their capacity permanently. In either case their enduring guardian or attorney for personal matters may carry out their powers or functions. In Queensland the legislation makes it clear that the powers or functions given are exercisable only in relation to those personal matters for which the appointor has lost capacity.(65)

In Victoria, appointments of enduring guardianship capable of coming into force, but not yet in force, will come into force only to the extent that the appointor becomes unable, by reason of a disability, to make reasonable judgements in respect of (personal) matters specified in the appointment document.(66) However, for enduring powers of attorney for personal matters or for both personal and financial matters to come into force, the maker may provide in the enduring power of attorney that the power for all matters or the power for specified matters is exerciseable either:
  1. immediately on the making of the power; or
  2. when the maker ceases to have decision making capacity for the matters or matter; or
  3. any other time, circumstance or occasion.
If a specification is not made in the enduring power of attorney, the power for all matters under the enduring power of attorney is exercisable on and from the making of the power of attorney.(67) This matter is covered in more detail in 10.5.2.

Sometimes it will not be clear whether a person has lost capacity so that the enduring guardian or attorney for personal matters can commence to act under their appointment. At other times there will be controversy about this matter between family members or between family members and service providers. In these situations in New South Wales, the enduring guardian may apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) for an order declaring that the appointment is in operation. Before NCAT may make such an order, it must be satisfied that the appointor did indeed appoint the person as their enduring guardian and that now the appointor is a person who, on the evidence placed before it, is in need of a guardian.(68) On that question, the certificate of a doctor to the effect that the appointor was, on a particular day or during a particular period, totally or partially incapable of managing their person because of a disability is evidence that the appointor was a person in need of a guardian.(69)

NCAT may also revoke such a declaratory order either by deciding to do so itself (on its own motion) or on the application of a person NCAT considers has a genuine concern for the welfare of the appointor.(70)

In Queensland, QCAT may make a declaration about the capacity of the maker of an enduring power of attorney for personal matters in relation to one or more personal matters. If the maker is found to have impaired capacity for matters covered by the enduring power of attorney, then the declaration will show that that power of attorney is in effect in relation to those matters.(71)

In South Australia, a substitute decision-maker may only make a decision under an advance care directive if, at the relevant time, the giver of the advance care directive has impaired decision-making capacity in respect of the decision to be made.(72) Also it is the Public Advocate, not SACAT, either on application from an eligible person or on the Public Advocate's own initiative, who may make a declaration that the giver of the advance care directive has the relevant decision-making incapacity. The Public Advocate may do that when they think it is necessary or desirable in in the circumstances of the case to do so.(73)

The Tasmanian Guardianship and Administration Board however can, through the application of the enduring guardian, give advice or direction on any matter relating to the scope of the enduring guardian's appointment or the exercise of any powers given them in the appointment.(74) If that provision is seen as not allowing for advice that the enduring guardian's appointment is or is not in effect, a second provision would almost certainly provide the Board with the necessary power. This is because the Tasmanian Act allows the Board, of its own motion, give advice to the enduring guardian 'in respect of any matter'.(75)

A 2014 decision of the Tasmanian Guardianship and Administration Board serves to bring out the subtly of the question of whether or when a person, who has appointed an enduring guardian, has lost their decision-making capacity for a particular decision so that the enduring guardian and not the appointor is the proper person to make the relevant decision.(76) In that case the Board noted that, with enduring powers of attorney, there can be a graduation from the attorney acting as an agent, while the appointor of the attorney under the enduring power of attorney has capacity but wants the attorney to act for them, to acting under an enduring phase after the appointor has lost capacity. But then it pointed out that this graduation does not occur with appointments of enduring guardianship because an enduring guardian can only exercise the powers of a guardian given them in the appointment when the appointor becomes, in the words of the Tasmanian legislation, "unable by reason of a disability to make reasonable judgements in respect of matters relating to his or her personal circumstances".(77) Consequently before an enduring guardian may commence to make decisions as substitute decision-maker, the appointor must have lost their capacity to make those decisions.(78)

In Victoria, the Powers of Attorney Act 2014 (Vic) allows those who have been appointed as enduring guardians under appointments of enduring guardians that have not yet come into operation to apply to VCAT for an advisory opinion as to whether or not the appointor has lost decision-making capacity for one or more of the matters the appointor appointed them to make substitute decisions about in the appointment of enduring guardianship.(79)

In Western Australia, WASAT may make a declaration that an appointor is unable to make reasonable judgments about matters relating to their person.(80) Such a declaration effectively means that the enduring guardian can exercise the functions given them under their appointment.(81) WASAT may also revoke such a declaration thus stopping the operation of the appointment of enduring guardianship.(82)

In the Australian Capital Territory, ACAT may make a declaration as to whether or not a person who has made an enduring power of attorney for personal or health care matters has decision-making capacity or has impaired decision-making capacity. ACAT may also make a declaration about the effect of an enduring power of attorney.(83) It is suggested that these provisions allow ACAT to make it clear, after the appropriate hearing, that an enduring power of attorney is in operation.

In the Northern Territory an advance personal plan comes into force when it is made.(84) However such plans may be made for a limited period. These plans come into force when made and remain in force until the period ends. Plans made for an unlimited period remain in force until they are revoked by the maker or by the Northern Territory Civil and Administrative Tribunal (NTCAT) or the maker dies. If a maker has appointed one or more decision maker in a plan which is for an unlimited period, it will come to an end before the maker dies if the chosen decision makers cease to be decision makers by operation of the Advance Personal Planning Act (NT) before that time.(85)

Because the makers of advance personal plans can set out advance consent decisions about health care action or set out their views, wishes and beliefs as the basis on which they want anyone to act when making decisions for them (when they cannot make those decisions for themselves), some makers of such plans will not appoint decision makers to make decisions for them when they, the makers, have lost capacity to make the decision that has to be made.(86) Nevertheless, many of those who make such plans will appoint decision makers.

Where a maker of a plan appoints one or more decision makers, they, the maker may appoint the decision maker(s) to "exercise their authority" jointly, that is making all decisions together, or severally, that is each making decisions in relation to the particular matters they have been given authority to make decisions about, or jointly and severally. In that case only one, or only some or all of the decision makers may make any of the decisions they all have been given authority to make.(87) In addition the makers of plans may make the decision-making authority they give to decision makers exercisable:
  1. at all times; or
  2. only in stated circumstances; or
  3. at all times except in stated circumstances.(88)
Further, the maker of the plan may:
  1. impose restrictions on the decision maker's authority;
  2. impose requirements to be complied with by the decision maker in relation to the exercise of their authority; and
  3. give directions to the decision maker about the exercise by the decision maker of the decision maker's authority.(89)
While all these matters just set out reflect the common law in relation to how widely or how narrowly drawn the powers that a maker of a power of attorney may give to an attorney can be, when considered with the special provisions in relation to advance consent decisions and advance care statements and the decision-making principles that a decision maker must apply when exercising decision-making authority under the Act, they further emphasise the underlying policy of the new guardianship legislation in the Northern Territory, namely that the advance decisions and the views, wishes and beliefs of the makers of advance personal plans are to be given effect to except in particular and limited circumstances.

The Act requires that an adult person must have decision-making capacity for making an advance personal before they can make such a plan.(90) As the plan commences when made, it follows that the maker of the plan has substantial decision-making capacity at the time that they make their plan. However a decision maker appointed under a plan may exercise their authority to make decisions in relation to the matters they have been given authority to make decisions about only when the maker of the plan has impaired decision-making capacity for the matter in relation to which a decision has to be made.(91)

This raises practical difficulties for decision makers and others in assessing whether the maker has impaired decision-making capacity for the particular matter about which a decision has to be made. However, the Act provides that if a decision maker purports to exercise authority for a matter in good faith and reasonably believing that circumstances exist that entitles them to do so; but those circumstances do not in fact exist then, anything done by the decision maker in the purported exercise of the authority has effect.(92)

What the Act does not do is allow makers of advance personal plans to hand over the management of some or all of their affairs to trusted others, perhaps subject to being reported to or occasionally making the decisions for themselves. However, this is a matter that is more relevant to decision-making in relation to financial matters than personal matters. We return to this issue in Chapter 10 at 10.5.2.

9.4.4 Powers of enduring guardians and their equivalents

In Tasmania, enduring guardians are full or plenary guardians with all the powers and duties a guardian would have if they were a parent and the appointor was their child.(93)

For Victoria, despite the changes brought about by the Powers of Attorney Act 2014 (Vic), an enduring guardian, whether acting under an appointment already in force or when it comes into force can exercise all the powers of a guardian given to them in the appointment, or if not limited to specific powers, all the powers of a plenary guardian. These are all the powers and duties which the plenary guardian would have if he or she were a parent and the represented person his or her child. These powers are similar to, but differently stated from, the powers of enduring attorneys for personal matters. Nevertheless, they are the powers that enduring guardians have and will be able to exercise.(94)

In Western Australia the provisions are differently stated but have the same effect. An enduring guardian will be a plenary guardian unless their functions are limited to specific functions set out in the document appointing them.(95)

In Queensland and the Australian Capital Territory, as the legislation refers to the enduring attorney appointed for one or more matters, it is wise to list the personal matters in relation to which the attorney for personal matters is to be appointed.(96)

In New South Wales, an enduring guardian will have the following functions unless the document appointing them excludes any of those functions:
  1. deciding the place (such as a specific nursing home, or the appointor's own home) in which the appointor is to live,
  2. deciding the health care that the appointor is to receive,
  3. deciding the other kinds of personal services that the appointor is to receive, and
  4. giving consent to the carrying out of medical or dental treatment on the appointor.(97)
In addition, the appointor could include any other function of a guardian in the appointment document.(98)

In South Australia, when a giver of an advance care directive appoints one or more substitute decision-makers in that advance care directive, they may make any decision that the person who gave the advance care directive could have lawfully made in relation to the following areas of decision-making:(99)
  1. health care (other than a kind of health care excluded by the regulations from a substitute decision-maker's decision-making powers),(100)
  2. residential and accommodation arrangements, and
  3. personal affairs.(101)
However, the term "personal affairs" is not defined in the Advance Care Directive Act 2013 (SA) and unlike the legislation of the other States in relation to appointments of enduring guardians, the extent of the substitute decision-making powers of substitute decision-makers appointed in advance care directives in relation to personal decisions is not clear and may be more limited than the powers previously held by enduring guardians under the Guardianship and Administration Act 1993 (SA) under which an enduring guardian had all the powers in law and equity of a guardian unless named powers were excluded in the document appointing them.(102)

The Advance Personal Planning Act (NT) refers to the decision-making powers that makers of advance personal plans can give to those they appoint as their (substitute) decision makers in general terms. The Act states that a maker of a plan may appoint a decision maker for one, more or all matters relating to the maker's:
  1. care or welfare (including health care); or
  2. property or financial affairs;
and it continues that if the maker appoints a decision maker but does not identify the matter or matters for which the decision maker is appointed, the decision maker is appointed for all matters. The Act defines "health care" as health care of any kind and appears to include care that is provided as part of a health service.(103) However, the Act does not define either "health or welfare" or "property or financial affairs". Instead it provides a list of; "matters for which a decision-maker may be appointed". Under the Interpretation Act (NT), if a provision of an Act includes an example, the example is part of that provision but the example is not exhaustive. In other words, while the example does not limit or extend the meaning of the provision, so it does not prevent other matters similar to those set out in the example being included, in relation to the relevant section, in the terms; "health or welfare" or "property or financial affairs".(104) Consequently any decision maker appointed in a plan that does not narrow the areas of decision-making will be empowered to make decisions over a wide range of personal and financial matters.

The Advance Personal Planning Act (NT) also provides that a decision maker for a matter has authority to do anything in relation to the matter that the maker could lawfully do if they had full legal capacity.(105) However, when decision makers are exercising their authority, they must comply with the Act and:
  1. act in accordance with the decision-making principles;(106) and
  2. act honestly and with care, skill and diligence; and
  3. comply with any restrictions, requirements or directions that are in the advance personal plan; and
  4. cooperate with any other agents for the maker of the plan to enable them all to properly exercise their authority;
  5. comply with any order made by NTCAT.(107)

9.4.5 Directions to enduring guardians and their equivalents

In New South Wales and Tasmania there are similar provisions to South Australia in relation to conditions, limitations and lawful directions.(108) The Queensland legislation allows the appointer to provide 'terms or information about exercising the power'.(109)

In Victoria appointors may require their enduring guardians to take into account the wishes they include in their appointment document.(110) Since there is nothing to the contrary in the Powers of Attorney Act 2014 (Vic), we see no reason why equivalent conditions or instructions in "old enduring powers of guardianship" should not continue to be effective.(111)

In Western Australia the appointor may limit the circumstances in which the enduring guardian may act.(112) The Power of Attorney Act 2006 (ACT) does not address these matters.

In 2009 McDougall J of the Supreme Court of New South Wales held that a direction to a guardian in an appointment of enduring guardianship to refuse certain specified medical treatment was a valid "Advance Care Directive" and that the person's treating doctors were justified in complying with the directive. McDougall made a declaration to that effect.(113) It is suggested that this decision applies to directions given in appointments of enduring guardianship or their equivalents in the other States and in the Australian Capital Territory, unless their legislation specifically, or by necessary implication, precludes the giving of such directions.(114)

In the Northern Territory when making an advance personal plan, the maker may:
  1. impose restrictions on the decision maker's authority;
  2. impose requirements to be complied with by the decision maker in relation to the exercise of the decision maker's authority;
  3. give directions to the decision maker about the exercise by the decision maker of the decision maker's authority.(115)

9.4.6 Principles enduring guardians and their equivalents are required to or should apply

In Queensland enduring guardians (attorneys for personal matters) are required by the Powers of Attorney Act 1998 (Qld) to exercise the power given them in the document appointing them according to its terms and honestly and with reasonable diligence to protect the interests of the person who has appointed them as their attorney for personal matters.(116)Such attorneys may also sign any document, as attorney, where it is necessary or convenient to do so in order exercise a power given to them in the power of attorney appointing them.(117) They must take the right to confidentiality of the maker of the power of attorney into account and if they obtain any confidential information about the maker of the power of attorney, they are obliged to keep that information confidential and not to disclose it except as provided for under the Powers of Attorney Act 1998 (Qld).(118) If QCAT appoints a guardian for the person who appointed them, the attorney will be able to exercise their powers only to the extent authorised by the QCAT.(119)

Attorneys for personal matters are required to comply with the general principles set out in Schedule 1 of the Powers of Attorney Act 1998 (Qld). If they are appointed for health care matters, they must also comply with the health care principle also set out in that Schedule. The same approach applies in the Australian Capital Territory. Those appointed as enduring attorneys for personal care and health care matters are bound by similar general principles.(120)

While attorneys for personal matters are bound by those principles in Queensland and the Australian Capital Territory, it is suggested that enduring guardians in other States should use those principles, with the exception of the substituted judgment principle, unless required to apply it under their legislation, to guide how they carry out their powers and functions. These principles are:
  1. Powers of attorney for personal matters should be exercised in a way that is appropriate to the characteristics and needs of the maker of the power of attorney.(121)
  2. While powers of attorney for personal matters are exercisable during every period the maker of the power of attorney has impaired capacity for the matter or matters covered by it, the starting point is that the maker is presumed to have capacity to deal with the matter or matters involved.(122)
The principles require that attorneys for personal matters recognise the following matters and take them into account when exercising their powers under the power of attorney:
  1. The maker of the power of attorney's right to participate, to the greatest extent practicable, in decisions affecting their life, including the development of policies, programs and services for them.(123)
  2. The importance of preserving, to the greatest extent practicable, the maker of the power of attorney's right to make his or her own decisions.(124)
  3. All adults have the same basic human rights regardless of their capacity. It is important to empower them to exercise those rights.(125)
  4. The maker of the power of attorney's right to respect for their human worth and dignity as an individual.(126)
  5. The maker of the power of attorney's right to be a valued member of society together with the importance of encouraging and supporting them to perform social roles valued in society.(127)
  6. The importance of encouraging and supporting the maker of the power of attorney to live a life in the general community and to take part in activities enjoyed by the general community.(128)
  7. The importance of encouraging and supporting the maker of the power of attorney to achieve their maximum physical, social, emotional and intellectual potential, and to become as self-reliant as practicable.(129)
  8. The importance of maintaining the maker of the power of attorney's existing supportive relationships.(130)
  9. The importance of maintaining the maker of the power of attorney's cultural and linguistic environment, and set of values, including any religious beliefs.(131) This is particularly the case for Aborigines and Torres Strait Islanders.(132)
As already noted, in the Australian Capital Territory most of these principles are set out, and in similar terms, in Schedule 1 of the Powers of Attorney Act 2006 (ACT).(133) There is also a requirement that the enduring attorney for personal care or health care matters must recognise and take into account the wish and need of the maker of the power of attorney to have access to the family members and relatives and them to him or her. The enduring attorney must also take into account any expressed wish of the maker of the power of attorney to involve family members and relatives in decisions affecting the maker's life and health.(134)

Also in Queensland, if the attorney for personal matters has health matters to deal with they must deal with those matters only when it is necessary and appropriate to maintain or promote the maker of the power of attorney's health or wellbeing and is in the way that is least restrictive of those rights. In all the circumstances the exercise of power must be in the best interests of the maker of the power of attorney.(135) When deciding whether the exercise of a power is appropriate, the attorney for personal matters must:
  1. to the greatest extent practicable seek the adult's views and wishes and take them into account, and
  1. take into account the information given by the maker of the power of attorney's health provider.(136)

The Powers of Attorney Act 2006 (ACT) is to the same effect.(137)

In South Australia, while the relevant principles in the Advance Care Directives Act 2013 (SA) point to substitute decision-makers being required to make decisions that reflect the decision that the giver of the advance care directive would have made in the circumstances, they must, in the absence of any specific instructions or expressed views of the person, make decisions that are consistent with the proper care of the person and the protection of his or her interests. But they must not, as far as is reasonably practicable, restrict the basic rights and freedoms of the person.(138)

To assist the substitute decision-maker in determining the wishes of the giver of the advance care directive in relation to a particular, they may consider any past wishes expressed by the person in relation to the matter, their values as displayed or expressed during the whole or any part of their life and any other matter that is relevant in determining the wishes of the person in relation to the matter for decision.(139)

In the Northern Territory decision makers are provided with a set the decision-making principles for them to apply when deciding how to exercise the substitute decision-making authority given them by the maker of the plan. These decision-making principles are written to apply to advance personal plans whether they apply to all matters or are limited to care and welfare matters, which include health care, or to financial matters.(140) Consequently not every decision-making principle will apply to all decisions. Also there are circumstances in which a decision maker may be excused from exercising substituted judgment based on the maker's advance care statement set out in their plan or based on the maker's current or previously stated views and on the decision maker's personal knowledge of the maker and their views and wishes about the particular matter the decision had to be made about or matters generally.(141)

Before expanding on those matters, it is important to note that that there are certain decisions that a decision maker is not authorised to make. This is the case regardless of what is stated in the plan.(142) The excluded decisions are decisions to:
  1. exercise the maker's right to vote in a Commonwealth, Territory or local government election or referendum;
  2. consent to the adoption of a child of the maker;
  3. consent to the marriage, or dissolution of the marriage, of the maker;
  4. make, vary or revoke;
    • the maker's will,
    • a power of attorney made by the maker,
    • an advance personal plan, or anything (by whatever name) having a similar effect in another jurisdiction, made by the maker;
  5. exercise the adult's rights as an accused person in relation to a criminal investigation or criminal proceedings, including under Part 10 of the Mental Health and Related Services Act (NT).
Note the list of decisions a decision maker cannot make includes matters not included in Chapter 7 at 7.4, while 7.4 includes matters that are not included in the above list. However, we suggest that the matters substitute decision-makers cannot make decisions about in both the list above and in Chapter 7.4 should be matters that a substitute decision-maker cannot make a decision about anywhere in the country.

The decision-making principles set out in the Advance Personal Planning Act (NT) give precedence to the views of the maker of the plan whether those views were in the form of an advance care statement made in the plan or subsequently. Consequently, the Act requires that where a maker has made an advance care statement about a matter, the decision maker must exercise the decision maker's authority so as to give effect to the statement, unless the maker, having decision-making capacity to do so, has stated that they do not want effect to be given to the statement; or the decision maker is excused from doing so by operation of s. 23 of the Act. Further, in determining how to give effect to the advance care statement the decision maker must exercise their authority in the way they reasonably believe the maker would have done in the circumstances.(143)

Where a maker has not made an advance care statement in their advance personal plan, the decision maker must, nevertheless, exercise their authority in the way they reasonably believes the maker would have done in the circumstances, unless the decision maker is excused from doing so under section 23. Section 23 will be returned to below.

Whether or not the maker made an advance care statement, the decision-maker has to (try to) determine what the maker would have done in the circumstances. This obligation requires the decision maker to:
  1. as far as is practicable, seek the maker's current views and wishes about the matter; and
  2. take into account:
    • the maker's current and previously stated views and wishes about the matter; and
    • the decision maker's personal knowledge of the maker and their views and wishes about the particular matter and matters generally.(144)
Also they may, but are not required to, consult other persons who the decision maker believes may have information relevant to determining what the adult would have done in the circumstances.(145)

The Act makes a distinction between the situation in which the decision maker reasonably believes what the maker would have done in the circumstances and where the decision maker is unable to form such a reasonable belief. Where the decision maker forms the reasonable belief, they must exercise their authority (make the relevant decision) in the way they believe the maker would have done; "even if doing so may not be in the [maker's] best interests".(146) Where the decision maker forms the reasonable belief, the only basis upon which they can avoid making the decision the maker would have made is to rely on one of matters set out in s. 22(2) of the Act and comply with the other requirements of the section.

Where the decision maker is unable to form a reasonable belief about what the maker would have done in the circumstances; or is excused from exercising substituted judgment under s. 23, they must exercise their in the way that they reasonably believe is in the maker's best interests.(147)

When determining the maker's best interests, the decision maker must:
  1. take into account all relevant considerations; and
  2. weigh up those considerations, giving each of them the weight that the decision maker reasonably believes is appropriate in the circumstances.
The Act goes on to state that the relevant considerations include, but are not limited to:
  1. protection of the maker from harm, neglect, abuse and exploitation;
  2. providing appropriate care to the maker, including the taking of appropriate health care action;
  3. promotion of the maker's happiness, enjoyment of life and wellbeing;
  4. protecting the maker's freedom of decision and action;
  5. the maker's ability to be as independent as is practicable;
  6. the maker's ability to achieve their maximum physical, social, emotional and intellectual potential;
  7. the maker's ability to live in the general community and take part in community activities;
  8. maintenance of the maker's right to be treated with dignity and respect;
  9. the maker's ability to maintain their preferred living environment and lifestyle;
  10. maintenance or creation of a positive support network for the maker;
  11. protection of the maker's property and financial resources from loss, damage or misuse;
  12. protection of the maker's right to confidentiality of information about them.(148)}
The decision maker is not prevented from making decisions that may be beneficial to another person if the benefit to the other person is of a kind that the adult:
  1. provided when they had decision-making capacity for the matter (or might reasonably be expected to provide) and
  2. the benefit to the other person would be reasonable in the circumstances, and also would not significantly adversely affect the adult's best interests.(149)
Section 23 of the Act defines the term; "to exercise substituted judgment" to mean:
  1. to give effect to an advance care statement;
  2. to exercise a decision maker's decision-making authority in the way they reasonably believe the maker would have done.
The section goes on to provide that a decision maker is excused from exercising substituted judgment if they reasonably believe that one or more of the following applies:
  1. exercising substituted judgment is impracticable;
  2. exercising substituted judgment would be unlawful;
  3. exercising substituted judgment would impose a burden on another person that is so unreasonably onerous that it is justifiable to override the maker's wishes;
  4. where the case is one of giving effect to an advance care statement, and there is no reasonable possibility the maker would have intended the statement to apply in the circumstances;
  5. exercising substituted judgment would be so unreasonable that it is justifiable to override the maker's wishes.(150)
Where relying on s. 23, a decision maker does not exercise substituted judgment, they must keep a written record of having done so and the grounds on which they formed the necessary reasonable belief.(151)

9.4.7 Consideration of the views of the maker of the power of attorney/appointor of the enduring guardian and equivalent appointments

In Queensland, the Powers of Attorney Act 1998 states that the principle of substituted judgment must be used in such a way that if it is reasonably practicable to work out what the maker of the power of attorney's views and wishes would be, the attorney for personal matters must take into account what they consider those views and wishes were.(152) Those views and wishes are to be worked out from the maker's previous actions. They may have been expressed orally, in writing, by conduct or in some other way.(153) Nevertheless, despite the fact that the words "the principle of substituted judgment must be used", the attorney for personal matters must exercise their powers and functions in a way that is consistent with the proper care and protection of the maker of the power of attorney.(154) Consequently, it would appear that attorneys for personal matters are not required to apply the principle of substituted judgment in the strict sense and that the proper care and protection of the maker of the power of attorney is the paramount consideration.

As noted above in 9. 4.6, the situation in South Australia is rather more nuanced. While the relevant principles in the Advance Care Directives Act 2013 (SA) point to substitute decision-makers being required to make decisions that reflect the decision that the giver of the advance care directive would have made in the circumstances, they must, in the absence of any specific instructions or expressed views of the person, make decisions that are consistent with the proper care of the person and the protection of his or her interests.(155) Also there are provisions in the Act to assist substitute decision-makers to determine the wishes of the person they are making substitute decisions for.(156)

Elsewhere in Australia where enduring guardians or their equivalents may be appointed, the principle of substituted judgment does not have to be applied.

Similarly in Tasmania, enduring guardians are not required to apply substituted judgment; however they must exercise their powers so as to give effect to the wishes of the person they are enduring guardian for wherever possible. In exercising their powers they must promote that person's best interests but also adopt means that are the least restrictive of the person's freedom of decision and action as is possible in the circumstances.(157)

In a 2006 case the Tasmanian Guardianship and Administration Board revoked an appointment of enduring guardianship because it was not satisfied that the enduring guardian was able to balance the responsibilities of a guardian as set out the Guardianship and Administration Act 1995 (Tas).(158) This was because the enduring guardian gave far greater weight to the appointor's wishes than to her best interests. The Board noted that the primary responsibility of an enduring guardian was to act in the best interests of the appointor.(159)

Enduring guardians are not required to exercise substituted judgment in New South Wales, but they are required to observe the general principles of the Guardianship Act 1987 (NSW) when exercising their functions. These principles are similar to those set out above and require the enduring guardian to take into account the views of the person who appointed them.(160)

In Western Australia, as in New South Wales, enduring guardians are not required to exercise substituted judgment but they must act according to their opinion of the best interests of the person they are enduring guardian for. They act in this way if they act in the same way as required of a guardian appointed by WASAT. That matter is dealt with in Chapter 9. 3. 3. In particular, enduring guardians are required to consult with and to take into account the views of the person who appointed them.(161)

In the Australian Capital Territory, attorneys for personal care matters must comply, to the maximum extent possible, with the general principles set out in the Powers of Attorney Act 2006 (ACT).(162) These principles are both explicit and detailed about the right of a maker of an enduring power of attorney for personal care matters to take part in decisions affecting their life to the greatest extent practicable and that it must be preserved. They must not be treated as unable to take part in making a decision only because the individual makes unwise decisions.

The maker's views and wishes may be expressed orally, in writing or in another way, including, for example, by conduct. If they cannot express their wishes or needs, the attorney must try to work out, as far as possible, from the maker's past actions, what their wishes and needs would be if they could express them. The attorney must then and take those wishes and needs into account.(163)

Despite this requirement, the attorney exercising a function must do so in a way that is consistent with the maker's proper care and protection.(164)

In Victoria prior to the coming into force of the Powers of Attorney Act 2014(Vic) on 1 September 2015, enduring guardians were not required to apply substituted judgment. However they were required exercise their powers so as to give effect to the wishes of the person they were enduring guardian for wherever possible. In exercising their powers they were required to promote that person's best interests but also adopt means that are the least restrictive of the person's freedom of decision and action as was possible in the circumstances.(165) While there is no legislative requirement that enduring guardians apply the principles legislated for in the new Act, we note that those principles are not inconsistent with what was expected of enduring guardians under section 4(2) of the Guardianship and Administration Act 1986 (Vic) except that the principles of the new Act requires enduring attorneys to take any steps that are reasonably available to encourage the maker to participate in decision making, even though they do not have decision-making capacity.(166) This represents a move to involve the maker in the decision-making process wherever possible. That move could be seen as a way of giving effect to section 4(2)(c) of the now repealed, but still continuing to have effect in some respects, provisions of the Guardianship and Administration Act 1986 (Vic).(167)

In the Northern Territory, the advance consent decisions, advance statements and the current and historical views and wishes of the maker of an advance personal plan play a central part in decision-making made under advance personal plans. This matter is dealt with in some detail at 9. 4. 6 above.

9.4.8 Assistance for enduring guardians and their equivalents

To assist enduring guardians and their equivalents deal with difficult matters in carrying out their roles, the public guardians and advocates can and do give advice. Also, in all the States and the Australian Capital Territory, the guardianship tribunal can give advice and directions to assist enduring guardians. In New South Wales the role of the Guardianship Division of NCAT is limited to giving directions on application by the enduring guardian.(168) In Queensland both QCAT and the Supreme Court may give direction or advice or make recommendations about the interpretation of the terms of or other issues involving an enduring power of attorney or the exercise of the attorney's powers.(169) In Tasmania and Victoria an enduring guardian may apply to their State's guardianship tribunal for advice or directions as to the scope or the exercise of their powers.(170) In Victoria attorneys under enduring powers of attorney for personal matters may also apply to VCAT for advice or directions as to the scope or the exercise of their powers.(171) In Western Australia they may apply to WASAT for directions as to the scope or the exercise of their powers.(172) In the Australian Capital Territory the role of ACAT is limited to giving a direction to an attorney to do or not do an act.(173)

As is already apparent from what has been discussed above, in South Australia the Advance Care Directives Act 2013 (SA) establishes a regime for the making of, and giving effect to, advance care directives. One of the ways by which this can be done is for the giver of the advance care directive to appoint a "substitute decision-maker" with a role similar to that given by legislation to enduring guardians or attorneys with decision-making powers in relation to personal decisions, matters or affairs in the other States and the Territories. This means that provisions have to be made for dealing with the problems that arise in giving effect to advance care directives and clarifying the roles, powers and responsibilities of substitute decision-makers appointed by operation of those advance care directives.(174)

In South Australia the Advance Care Directives Act 2013 (SA) gives a mixture of similar and different roles in relation to dealing with those problems to the Public Advocate, SACAT and the Supreme Court of South Australia. See, Chapter 13.5.3.8, 9 and 10.

The South Australian Act gives the Public Advocate has a number of roles. The Public Advocate may offer "preliminary assistance" to resolve a matter.(175) The Public Advocate may mediate a matter or make declarations about certain matters, but may end a mediation or refuse to make a determination and refer the matters to SACAT, on the grounds that issues raised by the mediation or application, are more appropriately dealt with by that tribunal.(176) The Public Advocate may bring the mediation to an end at the request of a party.(177) The Public Advocate may also refer a question of law to the Supreme Court for its opinion.(178)

While a substitute decision-maker could, in a number of different situations, be greatly assisted in carrying out their functions by the provision of preliminary assistance or mediation by the Public Advocate, the Public Advocate may, on application by an eligible person(179),on the Public Advocate's own initiative or in relation to a mediation make one or more of the following declarations that the Public Advocate thinks necessary or desirable in the circumstances of the case:
  1. a declaration as to the nature and scope of a person's powers or responsibilities under the advance care directive,
  2. a declaration as to whether or not a particular act or omission is within the powers, or discharges the responsibilities, of a person under the advance care directive,
  3. a declaration as to whether or not the person who gave the advance care directive has impaired decision-making capacity in relation to a specified decision, or
  4. any other declaration prescribed by the regulations.(180)
Also, on such an application, the Public Advocate may give any advice that the Public Advocate considers necessary or desirable in the circumstances of the case.(181)

As already noted, if at any time during a mediation the Public Advocate is of the opinion that it is more appropriate that the matter be dealt with by SACAT, the Public Advocate may bring the mediation to an end and refer the matter to SACAT.(182) This one of the four ways that that SACAT may be asked to exercise its jurisdiction in relation to advance care directives. Another similar way is for the Public Advocate, having formed the opinion that it is more appropriate that the matter be dealt with by SACAT to refuse to determine an application for a declaration or advice and refer it to SACAT.(183) In deciding how to resolve either of these kinds of referral , SACAT can make any of the declarations, set out above, that the Public Advocate could have made and give any directions or advice that it thinks necessary or desirable in the circumstances of the case.(184) SACAT could also dismiss the referral without making an order if it considered that the appropriate way to deal with the matter.

A third way SACAT gets jurisdiction to make declarations about advance care directives is by an application being made directly to it by an eligible person.(185)In determining such an application, SACAT can make any of the declarations that the Public Advocate may make set out above as well as give any directions or advice that it thinks necessary or desirable in the circumstances of the case.(186) It should be noted that SACAT may refer the application, made to it, to the Public Advocate if it forms the opinion that it is more appropriate that a particular application be dealt with by the Public Advocate.(187) It may also dismiss the application without making an order if it considered that the appropriate way to deal with the matter.

An eligible person may also apply to SACAT to review one of the matters dealt with by the Public Advocate set out above, for example a decision in relation to a mediation or a declaration.(188) In dealing with such a review, SACAT may confirm, cancel or reverse a decision that was the subject of the review or confirm, vary or revoke a declaration given.(189) However, in addition, when determining such an application, SACAT can make any of the declarations that the Public Advocate may make set out above as well as give any directions or advice that it thinks necessary or desirable in the circumstances of the case.(190)

Both the Public Advocate and SACAT have jurisdiction or power to vary or revoke a declaration they have made.(191) This is in addition to SACAT's jurisdiction or power to confirm, vary or revoke any declaration made by the Public Advocate that it reviews under the processes referred to in the last paragraph.

In the Northern Territory NTCAT has jurisdiction to deal with the validity and status of advance personal plans and to make declarations in relation to those matters and in relation to the powers of decision makers. The list of matters in relation to which NTCAT may make declarations is as follows:
  1. whether a maker of an advance personal plan has impaired decision-making capacity for a matter;
  2. whether an advance personal plan is or is not valid;
  3. whether a statement in an advance personal plan about health care action is an advance consent decision or an advance care statement;
  4. whether an advance consent decision or advance care statement is or is not applicable in a particular circumstance;
  5. whether or not a decision maker has authority for a matter;
  6. the scope of the authority of a decision maker;
  7. any other matter relating to the validity, effect or meaning of an advance personal plan (including an advance consent decision, advance care statement or appointment in the plan);
  8. any other matter relating to the making of a consent decision about health care action for an adult who has impaired decision-making capacity for making the consent decision;
  9. any other matter arising for determination under the Advance Personal Planning Act (NT).(192)

9.5 Ending Appointments of enduring guardians and their equivalents

9.5.1 Revocation by appointor

In each State, except Western Australia, and in the Australian Capital Territory, there are provisions for appointors of enduring guardians, makers of enduring powers of attorney for personal matters and in South Australia givers of advance care directives and to revoke appointments of enduring guardians. In the Northern Territory the maker of an advance personal plan may amend or revoke it at any time they have planning capacity. These will only be footnoted here.(193) Nevertheless, in Western Australia, appointors who still have the capacity to do so may revoke their appointments of enduring guardians.(194)

9.5.2 Resignation of enduring guardians and their equivalents

In New South Wales, Tasmania and Western Australia, enduring guardians and in Queensland and the Australian Capital Territory, attorneys, and the Northern Territory, decision makers, may resign their office. There is a procedure for them to follow to do this.(195) In Victoria with the procedure for doing this is set out in the now repealed, but still effective, section 35D of the Guardianship and Administration Act 1986 (Vic) which would allow the enduring guardian wishing to resign to apply to VACT.(196) However, if the appointment of enduring guardian was not in operation because the appointor still had capacity, then the proposed enduring guardian could advise the appointor who would be able to decide what action to take, including revoking the appointment of enduring guardianship and appoint another person or other persons as attorneys under an enduring power of attorney for personal matters. If the appointor had lost capacity, then the enduring guardian could apply to VCAT for it to exercise the jurisdiction set out in section 35D. Alternatively, the enduring attorney could seek an advisory opinion, which could or would enliven jurisdiction in VCAT to deal with the matter.(197) It may also be useful for the enduring guardian to advise the Public Advocate.

In New South Wales enduring guardians, and in Queensland and the Australian Capital Territory attorneys, may resign their office directly to the appointor or maker by giving them written notice. However, if the appointor or maker has lost capacity the enduring guardian or attorney may resign only with the leave of the guardianship tribunal in that State or Territory.(198) In South Australia substitute decision-makers "renounce" their appointment, in writing, to the giver of the advance care directive where that person is still competent.(199) This does not affect the ability of the remaining substitute decision-makers give effect to the now advance care directive unless there is a provision in the advance care directive to the contrary. If the giver is not competent, and there only one, or one remaining, substitute decision-maker, they may renounce their appointment only with the permission of SACAT.(200)

In the Northern Territory a decision maker may resign that role by giving notice to the relevant person under s.19 of the Advance Personal Planning Act (NT).

9.5.3 Suspension when guardianship order made

In New South Wales the effect of making a guardianship order is to suspend any appointment of an enduring guardian made by the person under guardianship for the duration of the order in relation to them.(201) If the person under guardianship purports to appoint an enduring guardian, that appointment has no effect at any time.(202)

In Queensland, if QCAT makes a guardianship order in relation to a person who has an attorney for personal matters, QCAT may also authorise the attorney to exercise the powers in the power of attorney that it designates.(203) If QCAT does not authorise the attorney to exercise power, then the power of attorney is effectively suspended during the currency of the guardianship order.

The Tasmanian Guardianship and Administration Board and WASAT in Western Australia may either amend or revoke an appointment of an enduring guardian.(204) Consequently if either tribunal makes a guardianship order in relation to a person who has appointed an enduring guardian, it may, on application, either revoke the appointment or amend it so that it can operate in conjunction with the guardianship order. The matters each tribunal has to consider before it may revoke or amend an appointment of enduring guardian are set out at 9. 5. 4.

In the Australian Capital Territory, ACAT may revoke powers of attorney for personal care in whole or in part.(205) It is assumed that where ACAT makes a guardianship order but revokes only part of such a power of attorney then it intends the unrevoked part of the power of attorney to continue to operate concurrently with the guardianship order it has made. There are specific provisions about guardianship orders and enduring powers of attorney in relation to health care.(206)

The matters each of these tribunals has to apply before it may revoke the enduring guardian's appointment are set out below in 9. 5. 4.

As to the effect on enduring powers of attorney for personal matters in Victoria of VCAT making a guardianship order in relation to the maker of the enduring power of attorney see, Chapter 10.10.5.

In Victoria, prior to the replacement of appointments of enduring guardians with the appointment of attorneys for enduring powers of attorney for personal matters, when the Powers of Attorney Act 2014 (Vic) came into force on 1 September 2015, VCAT could only revoke an appointment of an enduring guardian. This had to be done as a result of an application. Such an application could be dealt with at the hearing at which VCAT appointed a guardian. Revoking the appointment of the enduring guardian cleared the way for the tribunal appointed guardian to be given the functions they would need to be an effective guardian for the now incapable person. VCAT was empowered under the Guardianship and Administration Act 1986 (Vic) to revoke the appointment only if it was satisfied that the enduring guardian was either not able or not willing to act as enduring guardian or if, as enduring guardian, they have acted in an incompetent or negligent manner.(207) As there does not appear to be a provision for dealing with this matter in the new Act, this procedure would remain available for VCAT to deal with the matter.(208)

The recently enacted guardianship related legislation in the Northern Territory, particularly the Guardianship of Adults Act (NT) and the Advance Personal Planning Act (NT), reflect a policy of maintaining a person's autonomy wherever possible. So where a person has made an advance personal plan (or an enduring power of attorney), the Guardianship of Adults Act (NT) imposes substantial limitations on the powers of NTCAT to make a guardianship order.(209) NTCAT must take the advance personal plan (or enduring power of attorney) into account in determining whether the maker of the plan was in need of a guardian, whether to make a guardianship order and if a guardianship order is to be made, the terms of the order. Also, NTCAT must not make a guardianship order that confers on the guardian authority for a matter for which a relevant agent has authority.(210)

However, the question of making a guardianship order when the person the subject of the application for a guardianship order has already made and advance personal plan (or enduring power of attorney) is dealt with in much more detail in Chapter 10. 11. 8.

9.5.4 Reviewing appointments of enduring guardians and their equivalents

In each State and Territory the tribunal which has the jurisdiction to deal with applications for guardianship may also review the appointments of enduring guardians.

In New South Wales the Guardianship Division of NCAT may, on its own motion or must on the request of any person who, in NCAT's opinion, has a genuine concern for the welfare of the appointor, review the appointment of the enduring guardian.(211) After conducting the review, the Tribunal may:
  1. revoke the appointment,
  2. confirm it, or
  3. confirm it but vary the functions of the enduring guardian.(212)
However, NCAT must not revoke the enduring guardian's appointment unless the enduring guardian requests this or NCAT is satisfied that it is in the best interests of the appointor that the appointment be revoked.(213) If NCAT decides to revoke the appointment of the enduring guardian, it may proceed as if it had an application for a guardianship or administration order, or both, before it and make either or both orders.(214)

Sometimes appointments of enduring guardians have to be set aside and a guardian appointed by NCAT to make necessary personal or lifestyle decisions on behalf of the appointor. For example in the 2012 case of ICQ, ICQ appointed her sister as her enduring guardian. Unfortunately ICQ had a serious alcohol problem which gave her significant cognitive impairment predominantly affecting her executive functioning, planning, motivation and organisation and also causing alcohol related dementia. Her sister considered that ICQ should be placed in in residential care, but knew that ICQ would oppose this. The enduring guardian found it too hard to make the necessary accommodation decision in these circumstances and she applied to the then Guardianship Tribunal to appoint the Public Guardian to make accommodation, health care, medical and dental consent and other decisions for ICQ. As there was no private person available to be appointed guardian, the Guardianship Tribunal appointed the Public Guardian.(215)

Sometimes the reason is conflict between the appointed enduring guardians, or, as in this case from Queensland, between enduring attorneys for personal and financial decisions. Also in a 2012 case, QCAT has formed the view that the enduring power of attorney was unworkable given the level of conflict and impaired communication between the co-attorneys who were sons of the maker of the power of attorney. In that case it was the Adult Guardian's opinion that there was an ongoing need for a decision maker for personal matters, specifically accommodation, service provision and health care. QCAT appointed the Adult Guardian as guardian and the Public Trustee as administrator.(216)

Sometimes neighbours or others agree to become enduring guardians and attorneys under enduring powers of attorney for elderly, frail people in cognitive decline.(217)

In addition, NCAT has an added role. It may confirm the appointment even if:
  1. it discovers that the document appointing the enduring guardian was not executed in accordance with the requirements of the Guardianship Act 1987 (NSW), or
  2. the person purporting to make the appointment announced their intention to do so but became incapacitated before a document making the appointment could be executed in accordance with the requirements of the Act and NCAT was satisfied that the confirmation of the appointment reflected the appointment that the person intended to make at the time it was purportedly made.(218)
This last power of NCAT is aimed at formalising an intended appointment of an enduring guardian where the appointor's intentions as to who they intended to appoint and what functions they were to be given were clear from the draft but not formalised in document of appointment or, possibly, were clear from the instructions given to the solicitor or other person drafting the appointment document.

In Western Australia, WASAT, on the application of any person who, in its opinion, has a proper interest in the matter, has the power to revoke an enduring power of guardianship, revoke or vary any of its terms or revoke the appointment of one or more of the enduring guardians.(219) When dealing with an application to revoke an enduring power of guardianship or revoke or vary any of its terms, WASAT is not required to apply any specific statutory criteria, but its primary concern must be the best interests of the appointor and it must, as far as possible seek to ascertain the views and wishes of that person.(220) However, when dealing with an application to revoke the appointment of one or more of the enduring guardians, WASAT should revoke the appointment of the enduring guardian or of those enduring guardians who:
  1. wish to be discharged, or
  2. have been guilty of such neglect or misconduct or of such default as, in the opinion of WASAT, renders them unfit to continue as an enduring guardian; or
  3. appear to WASAT to be incapable, by reason of mental or physical incapacity, of carrying out their duties as an enduring guardian.(221)
Note in Western Australia a person concerned that an appointment of enduring guardianship (and the making of an enduring power of attorney) should be replaced by a guardianship order (and administration order) may make an application for such orders to WASAT.(222)

In Tasmania, the Guardianship and Administration Board may, on an application by the appointor, the enduring guardian, the administrator of the appointor's estate, the Public Guardian; or any other person who, the Board is satisfied, has a proper interest in the matter, and after a hearing, revoke or amend an appointment of an enduring guardian, but only if:
  1. the enduring guardian seeks revocation of their appointment, or
  2. the Board is satisfied that the enduring guardian;
    1. is not willing or able to act in that capacity, or
    2. has not acted in the best interests of the appointor or has acted in an incompetent or negligent manner or contrary to the provisions of the Guardianship and Administration Act 1995 (Tas) (223)
In South Australia, as a result of the replacing appointments of enduring guardians with substitute decision-makers appointed under the Advance Care Directives Act 2013 (SA), the question of dealing with reviewing the appointment of substitute decision-makers is dealt with at 9.6, below. The matter is also dealt with at Chapter 13.5.3.9.

In Victoria, VCAT's powers for reviewing enduring powers of attorney for personal matters are set out in Chapter 10.11.5.

For reviewing appointments of enduring guardianship, VCATs powers were limited to revoking the appointment of the enduring guardian. However with the coming into force of the Powers of Attorney Act 2014 (Vic), those appointments are now treated as if they were enduring powers of attorney made under that Act for the purposes of applications being made in relation to them. Those applications are heard by NCAT and are dealt with in Chapter 10.11.5.(224)

In Queensland both QCAT and the Supreme Court have the same powers in relation to enduring powers of attorney for personal matters.(225) Any of the following may apply to QCAT or the Court for an order in relation to such powers of attorney:
  1. the person who made the power of attorney,
  2. a member of their family,(226)
  3. an attorney appointed by the maker of the enduring power of attorney for personal matters,(227)
  4. the Adult Guardian or Public Trustee,
  5. the maker's health provider, or
  6. an interested person.(228)
In addition, any person QCAT or the Court joins as a party or considers is an interested person may participate in the proceeding.(229)

QCAT or the Court has power to decide whether an enduring power of attorney for personal matters is valid or not and may declare such a power of attorney invalid if it is satisfied that:
  1. the maker did not have the capacity necessary to make the power of attorney,
  2. the power of attorney did not comply with the other requirements of the Powers of Attorney Act 1998 (Qld), or
  3. the power of attorney was invalid for another reason, for example, the maker was induced to make it by dishonesty or undue influence.(230)
However, if QCAT or the Court declares the power of attorney to be invalid, it may, at the same time, appoint one or more attorneys for the maker.(231) This means that QCAT or the Court can appoint attorneys to operate under orders made by those bodies rather than under the invalid power of attorney.

If QCAT or the Court declares an enduring power of attorney to be invalid, it is void and of no effect from the time it was made.(232)In a 2005 case in which it was confronted with a situation in which a person under guardianship and administration made an enduring power of attorney for personal matters, the then Queensland Guardianship and Administration Tribunal decided to use its power to initiate its own application in relation to a declaration of capacity, and, after considering the evidence, found that the person did not have the capacity to make the enduring power of attorney and then went on to declare the power of attorney invalid.(233)

After conducting a hearing to review the enduring power of attorney, QCAT or the Court may:
  1. remove an attorney and appoint a new attorney to replace them,
  2. remove a power from an attorney and give the removed power to another attorney or to a new attorney,
  3. change the terms of an enduring power of attorney, or
  4. revoke all or part of the enduring power of attorney.(234)
Like their counterparts elsewhere in Australia, QCAT and the Court may revoke the enduring power of attorney for personal matters. In addition, they have the power to vary the terms of an enduring power of attorney for personal matters. However, their power to do this may be exercised only where they consider that the maker's circumstances or other circumstances have changed to the extent that one or more terms of the enduring power of attorney are inappropriate.(235)

There is another way in which QCAT and the Court may reduce the scope of an enduring power of attorney for personal matters. This is by making a guardianship order which gives a guardian some of the powers the attorney had under an enduring power of attorney made by the person now under guardianship or by extending the powers of the guardian further after a review of the guardianship order. The process is known as "overtaking" and is authorised by s 22 of the Guardianship and Administration Act 2000 (QLD). That section applies if an adult has made an enduring power of attorney for personal matters and QCAT, with knowledge of that document, gives power to a guardian to make decisions in relation to one or more of those personal matters. The attorney may exercise power only to the extent authorised by QCAT.(236) This provision does not apply for powers for a health matters, they are dealt with by a process set out in s. 66 of the Act.

In the Australian Capital Territory, ACAT has the main role in relation to the removal and replacement of attorneys under enduring powers of attorney for personal care and for dealing with applications to revoke such powers of attorney in whole or in part. ACAT may do this on an application from an interested person or from someone else it has given leave to apply, or on its own initiative.(237)

ACAT may exercise its jurisdiction only if the maker of the power of attorney has impaired decision-making capacity. If this is proved to it, ACAT may revoke the power of attorney or part of it. ACAT may also refer the matter to the Supreme Court.(238) If it revokes the power of attorney, ACAT may appoint a guardian or a manager of the estate of the maker of the power of attorney.(239)

Also, instead of revoking the enduring power of attorney, ACAT may remove an attorney, but only if it is satisfied that it is in the interests of the maker of the power of attorney to do so.(240)

In the Northern Territory, the jurisdiction given to NTCAT under the Advance Personal Planning Act (NT) empowers it to review the appointment of decision makers and related matters related to the making and operation of advance personal plans.(241) NTCAT also has jurisdiction to convert advance personal plans for personal or health care matters into guardianship orders for personal and health care matters in certain circumstances. These matters are dealt with in much more detail in Chapter 10. 11.8.

9.6 Ending appointments of substitute decision-makers (and revoking advance care directives) in South Australia

Appointments of enduring guardians can no longer be made in South Australia. However, currently operational appointments of ensuring guardians are treated as if they were appointments made under the Advance Care Directives Act 2013 (SA). Validly made appointments of enduring guardians not yet in operation will be treated as if they were appointments made under the Act. This means that current and future enduring guardians will be treated as substitute decision-makers appointed under the Act.

An example of this is that an enduring guardian now deemed to be a substitute decision-maker may, if the appointor of the enduring guardian is still competent, renounce their appointment to the appointor, by notice in writing.(242) This and related matters are further elaborated at 9.5.2 above.

A person who has given an advance care directive or made a relevant appointment of enduring guardian, and who is still competent and understands the consequences of revoking the advance care directive, may revoke the advance care directive at any time.(243) But they must do so in the manner prescribed by the regulations.(244) As soon as is reasonably practicable after revoking an advance care directive, the person must advise each substitute decision-maker appointed under the advance care directive of the revocation and also take reasonable steps to notify each other person who has been given a copy of the advance care directive of the revocation.(245)

SACAT may also make orders in relation to substitute decision-makers, on the application of an eligible person,(246) if it is satisfied that a person appointed as a substitute decision-maker under the advance care directive:
  1. cannot be a substitute decision-maker, because for example they themselves have become incompetent,(247) or
  2. are no longer willing to act as a substitute decision-maker under the advance care directive, or
  3. have been been negligent in the exercise of their powers under the advance care directive,
SACAT may:
  1. revoke the appointment of the substitute decision-make, or
  2. if the giver of the advance care directive is still competent, with their consent, make any variation to the advance care directive that SACAT thinks appropriate, including by appointing another substitute decision-maker, or
  3. if the person who gave the advance care directive is not competent, and if no other substitute decision-maker was appointed under the advance care directive, revoke the advance care directive.
However, the Advance Care Directives Act 2013 (SA) empowers the Public Advocate to play a number of roles in seeking to resolve disputes arising in relation to advance care directives and in particular in relation to health care issues. These matters are dealt with in some detail in Chapter 13 at 13.5 3.8 and 13.5.3.9. As a result of information coming to it as a result of the exercise of some of those powers, or from other material being brought to notice, the Public Advocate may become aware the personal circumstances of the giver of the advance care directive or a substitute decision-maker appointed under the advance care directive may have changed and may apply to SACAT. If as a result of hearing such an application, SACAT is satisfied that a change in the personal circumstances of the giver of the advance care directive or a substitute decision-maker under the advance care directive makes it no longer appropriate that a particular person be a substitute decision-maker under the advance care directive, SACAT may make any of the second set of three orders set out in the last paragraph.(248) However, the Act states that SACAT should not revoke an advance care directive under s 51 if there are provisions in the advance care directive that can continue to have effect despite the fact that there is no substitute decision-maker appointed under the advance care directive.(249) The note to s 51 of the Act gives, as an example of when an advance directive can still have effect without a substitute decision-maker, namely when the advance care directive contains the wishes of its giver about specified health care or accommodation or personal matters. This matter is taken up in more detail in Chapter 13. 5. 3. 9.

It should be noted that when SACAT exercises its powers under the provisions of the Guardianship and Administration Act 1993 (SA) to make a guardianship order and appoint one or more guardians, that Act requires any such SACAT appointed guardians to take reasonable steps to discover whether the person the subject of a guardianship order has given an advance directive; and if so, they must, as far as may be reasonably practicable, give effect to any provision in the advance care directive and seek to avoid any outcome or intervention that the person under guardianship would wish to be avoided, whether such wish was expressed or implied in the advance care directive.(250) Furthermore, that Act includes any advance directive revoked by SACAT in a guardian's obligation to give effect to it set out in the last sentence.(251) Chapter 13. 5. 3. 9 deals with related matters in the context of advance care directives and substitute decision-makers appointed under them.

Notes

1 : Advance Personal Planning Act (NT) ss 8 and 9.

2 : Ibid ss 6 and 8.

3 : www.advancecaredirectives.sa.gov.au.

4 : Powers of Attorney Act 2014 (Vic) s 3(1).

5 : Guardianship Act 1987 (NSW) ss 5-6O, Guardianship and Administration Act 1995 (Tas) ss 32-35 and Guardianship and Administration Act 1990 (WA) ss 110A-110O.

6 : Powers of Attorney Act 1998 (Qld) Chapters 3 and 5 and Schedule 1 and 2, Part 2 in particular, Powers of Attorney Act 2014 (Vic) s 22(2) in particular Part 3 generally, and Powers of Attorney Act 2006 (ACT) generally.

7 : Advance Care Directives Act 2013 (SA) s 3 and generally.

8 : Advance Personal Planning Act (NT) ss 15-17 and generally.

9 : Guardianship Act 1987 (NSW) s 6, Guardianship and Administration Act 1995 (Tas) s 32(1), Guardianship and Administration Act 1986 (Vic) s 35A(1). In BN [2013] TASGAB 21, [24] the Tasmanian Guardianship Board found, on the evidence, that BN would have had no capacity to understand "the nature and effect of the document" at the time he made the appointment of enduring guardianship.

10 : Powers of Attorney Act 2014 (Vic) ss 143 and 4. Note also that s. 4 is the statutory test for capacity to appoint an enduring attorney, including an enduring attorney for personal matters.

11 : Guardianship and Administration Act 1990 (WA) ss 110B. However, in Re C [2012] WASAT 50, [22] and [23] WASAT found that at the time C appointed an enduring guardian, she lacked the requisite capacity to understand "the full nature and effect" of the relevant document but that at the time of the hearing the evidence showed that she had capacity to understand the nature and effect of an appointment of enduring guardianship and the capacity to determine whom she would want to appoint.

12 : Powers of Attorney Act 1998 (Qld) Schedule 1 s 1.

13 : Ibid s 41.

14 : Powers of Attorney Act 2006 (ACT) s 18.

15 : Ibid s 17.

16 : Ibid s 9(2).

17 : Advance Care Directives Act 2013 (SA) ss 11 and 21-23.

18 : Ibid s 13.

19 : Neither the Advance Care Directives Act 2013 (SA) nor the Acts Interpretation Act 1915 (SA) defines the word "adult". The website referred to in footnote 1 describes an advance care directive as a legal form for people "aged over 18 years". We read that as persons who have reached their 18th birthday.

20 : Advance Care Directives Act 2013 (SA) s 11(1).

21 : Guardianship and Administration Act 1993 (SA) s 25 and Advance Care Directives Act 2013 (SA) s 35.

22 : See Part 8 of Sch 1 of the Advance Care Directives Act 2013 (SA) and Sch 3 of the Advance Care Directives Regulations 2014 (SA).

23 : Advance Care Directives Act 2013 (SA) s 7(1).

24 : Ibid s 7(2).

25 : Advance Personal Planning Act (NT) generally and the required form for an advanced care plan.

26 : Interpretation Act (NT) s 18.

27 : Advance Personal Planning Act (NT) ss 4 and 8.

28 : Ibid s 6(1).

29 : Ibid s 6(2).

30 : Ibid s 6(5).

31 : Gibbons v Wright [1954] HCA 17 [7][1954] HCA 17; , (1954) 91 CLR 423, 438.

32 : Ranclaud v Cabban [1988] ANZ ConvR 134, 136, (1988) NSW Conv R 55-385, BC8802222,12.

33 : Re K [1988] 1 Ch 310. In 2000 the Court of Appeal described this list as a "sound indication of what must be understood if a power is to be valid". In re W [2001] Ch 609 [19] and [20].

34 : Smith v Public Trustee of Queensland [1995] ANZ ConvR 415,418.

35 : B Collier, C Coyne and K Sullivan, Mental Capacity, (The Federation Press, 2005) 44. Note that American authority supports the proposition that capacity relates to the maker's ability to accomplish the transactions they empower the enduring guardian or enduring attorney to carry out rather than the maker's understanding of what they are handing over to the enduring guardian or enduring attorney.

36 : Powers of Attorney Act 1998 (Qld) s 41 and Powers of Attorney Act 2006 (ACT) s 17.

37 : B Collier, C Coyne and K Sullivan, Mental Capacity, (The Federation Press, 2005) 50-1.

38 : For assistance see,"Client Capacity Guidelines: Civil and Family Law Matters" (2003) 41(8) Law Society Journal 50.

39 : [2012] NSWSC 1541 [227].

40 : Advance Personal Planning Act (NT) s 6(1).

41 : Advance Care Directives Act 2013 (SA) s 7(1).

42 : Powers of Attorney Act 1998 (Qld) s 41.

43 : C Peisah, H Brodaty and C Quadrio, 'Family conflict in dementia: prodigal sons & black sheep' (2006) 21(5) International Journal of Geriatric Psychiatry 485-492.

44 : B Collier, C Coyne and K Sullivan, Mental Capacity, (The Federation Press, 2005) 52.

45 : Guardianship and Administration Act 1995 (Tas) s 32(4).

46 : Guardianship and Administration Act 1986 (Vic) s 35A(4) and (5). For an example see, CM (Guardianship) [2010] VCAT 1313 [36]-[37].

47 : Powers of Attorney Act 2014 (Vic) ss 116 and 28.

48 : Guardianship Act 1987 (NSW) s 6B(2).

49 : Ibid s 6B(3).

50 : Guardianship and Administration Act 1990 (WA) s 110D.

51 : Advance Care Directives Act 2013 (SA) s 21(2)(a).

52 : Advance Care Directives Act 2013 (SA) ss 3 and 21(2)(b), Advance Care Directives Regulations 2014 (SA) cl 4 and Health Care Act 2008 (SA) s 3.

53 : Advance Care Directives Act 2013 (SA) s 21(2)(c).

54 : Ibid s 21(2)(d). However as at 2-11-2015 no regulation had been made.

55 : Powers of Attorney Act 1998 (Qld) s 29.

56 : Powers of Attorney Act 1995 (ACT) ss 13(3) and 14(2) and (3).

57 : Advance Personal Planning Act (NT) s.14(1).

58 : Note s.14(2) and (3) of the Act deal with that matter.

59 : Ibid s 15(1).

60 : Ibid s 15(2) and (3).

61 : Guardianship Act 1987 (NSW) s 6C, Powers of Attorney Act 1998 (Qld) ss 29-31 and 44, Guardianship and Administration Act 1995 (Tas) s 32, Guardianship and Administration Act 1990 (WA) s 110E (the enduring power of guardianship form is found in Guardianship and Administration Regulations 2005 (WA) Sch 1), Powers of Attorney Act 2006 (ACT) ss 19-24 and Advance Care Directive Act 2013 (SA) s 21. For Victoria, the provisions for appointing enduring attorneys for personal and/or financial affairs and in relation to appointments of enduring guardianship are found in the Powers of Attorney Act 2014 (Vic) Part 3, Div 3 and s 116. For the Northern Territory see, the Advance Personal Planning Act (NT) Part 2 and Part 3, Division 1.

62 : Guardianship and Administration Act 1995 (Tas) s 32.

63 : Advance Personal Planning Act (NT) s 55A.

64 : Guardianship Act 1987 (NSW) s 6A(1), Powers of Attorney Act 1998 (Qld) s 33(4), Guardianship and Administration Act 1993 (SA) Schedule, Guardianship and Administration Act 1995 (Tas) s 32(5) and Schedule 3 Form 1), Guardianship and Administration Act 1986 (Vic) s 35B(1), Guardianship and Administration Act 1990 (WA) s 110F and Powers of Attorney Act 2006 (ACT) 32(2).

65 : Powers of Attorney Act 1998 (Qld) s 33(4).

66 : Guardianship and Administration Act 1987 (Vic) s 35B(1).

67 : Powers of Attorney Act 2014 (Vic) s 39(1) and (2).

68 : Guardianship Act 1987 (NSW) s 6M(1) and (2).

69 : Ibid s 6N.

70 : Ibid s 6M(4).

71 : Guardianship and Administration Act 2000 (Qld) s 146.

72 : Advance Care Directives Act 2013 (SA) s 34.

73 : Ibid s 45(5)(a)(iii).

74 : Guardianship and Administration Act 1995 (Tas) s 35(1).

75 : Ibid s 35(4).

76 : IQ [2014] TASGAB 3.

77 : Ibid [15].

78 : Ibid [16]. The Tasmanian Board decided in this particular case that the appointor had not lost his capacity to make the relevant decisions so that the appointment of enduring guardianship had not begun to operate. [26].

79 : Powers of Attorney Act (Vic) ss 4, 121 and 122(1)(b)(i).

80 : Guardianship and Administration Act 1990 (WA) s 110L(1).

81 : Ibid s 110L(2).

82 : Ibid s 110L(3).

83 : Guardianship and Management of Property Act 1991 (ACT) ss 62 (2)(d) and 65.

84 : Advance Personal Planning Act (NT) s 11(a).

85 : Ibid ss 11(b) and 19.

86 : Ibid s 8(1)(a) and (b).

87 : Ibid s 17(2) and (3).

88 : Ibid s 17(1).

89 : Ibid s 18.

90 : Ibid s 4(a). Note also that the person must not have a guardian at the time that they make an advance personal plan - see s 4(b).

91 : Ibid s 20(2).

92 : Ibid s 27(1).

93 : Guardianship and Administration Act 1995 (Tas) ss 32(5) and 25(1).

94 : Powers of Attorney Act 2015 (Vic) s 143(1) and Guardianship and Administration Act 1986 (Vic) 24(1) including in particular the powers set out in 24(2).

95 : Guardianship and Administration Act 1990 (WA) s 110G(1) and (2).

96 : Powers of Attorney Act 1998 (Qld) s 32(1)(a) and Powers of Attorney Act 2006 (ACT) s 13(2).

97 : Guardianship Act 1987 (NSW) s 6E(1)(a)-(d).

98 : Ibid s 6E(1)(e).

99 : Advance Care Directive Act 2013 (SA) s 22 provides that where more than one substitute decision-maker is appointed under an advance care directive, they are empowered, jointly or severally, to make decisions, within the allowed range, under the advance care directive.

100 : While as at 4-11-2015 no form of health care has been declared in the regulations to be excluded from the ambit of paragraph (a) of s 23(1) of the Advance Care Directive Act 2013 (SA), clause 6 of the Advance Care Directives Regulations 2014 (SA) sets out the mandatory health treatment that cannot be the subject of an advance care directive.

101 : Advance Care Directive Act 2013 (SA) s 23(1)(c).

102 : See repealed section 25 of the Guardianship and Administration Act 1993 (SA). Section 10(f) of the Advance Care Directives Act 2013 (SA) provides that each substitute decision-maker appointed under an advance care directive, has the same authority as the person who gave the advance care directive had when he or she had full decision-making capacity. While this could be seen helping in the interpretation of the width of a substitute decision-maker's powers under s 23(1)(c), s 10(f) deals with authority of the substitute decision-maker to make decisions, not the range of decisions available to be made by the substitute decision-maker.

103 : Insofar as it is possible to work out what is being referred to, health services are: services, whether provided as public or private services-- (a) services provided by registered health practitioners; (b) hospital services; (c) mental health services; (d) pharmaceutical services; (e) ambulance services; (f) community health services; (g) health education services; (h) welfare services necessary to implement any services referred to in paragraphs (a) to (g); (i) services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists; (j) pathology services.

104 : Interpretation Act (NT) ss 55(4) and 62D. The following are the examples of the terms used in s 16 of the Advance Personal Planning Act (NT): (a) accommodation; (b) day-to-day living matters, such as diet and dress; (c) health care; (d) the provision of care services to the adult; (e) relationships with other people, including intimate or sexual relationships;(f) the carrying out of a forensic procedure (such as those mentioned in the definition of that term in section 4 of Police Administration Act) in relation to an adult; (g) employment; (h) education and training; (i) banking; (j) receipt and payment of money; (k) property (including real estate) ownership; (l) management of assets; (m) carrying on a trade or business; (n) holding a licence or permit; (o) insurance for an adult or his or her property; (p) legal matters (other than as mentioned in section 24(1)(e)).

105 : Advance Personal Planning Act (NT) s 20(1).

106 : These principles are set out in s. 22 of the Act and are dealt with below at 9.4.6.

107 : Ibid s 19. The orders of NTCAT that have to be complied with are set out in s. 59 of the Act.

108 : Guardianship Act 1987 (NSW) s 6E(2) and (3), Guardianship and Administration Act 1995 (Tas) s 32(5) and (6).

109 : Powers of Attorney Act 1998 (Qld) s 32(1)(b).

110 : Guardianship and Administration Act 1987 (Vic) Schedule 4, Form 1.

111 : Powers of Attorney Act 2014 (Vic) s 143(1) and (2).

112 : Guardianship and Administration Act 1990 (WA) s 110G(3).

113 : Hunter and New England Area Health Service v A [2009] NSWSC 761. This case is discussed further in Chapter 13. 5, 14. 3. 1. 11 and 15.6.

114 : Powers of Attorney Act 1998 (Qld) s 36 may limit the kind of advance directive concerning the refusal of treatment that may be given effect to in Queensland. See also 9. 4. 6.

115 : Advance Personal Planning Act (NT) s 18.

116 : Powers of Attorney Act 1998 (Qld) ss 66 and 67.

117 : Ibid s 69.

118 : Ibid s 74 and Schedule 1 item 11.

119 : Ibid s 70.

120 : Powers of Attorney Act 2006 (ACT) Schedule 1.

121 : Powers of Attorney Act 1998 (Qld) Schedule 1 item 11.

122 : Ibid s 33(4) and Schedule 1 item 1.

123 : Ibid item 7(1).

124 : Ibid item 7(2).

125 : Ibid item 2.

126 : Ibid item 3.

127 : Ibid item 4.

128 : Ibid item 5.

129 : Ibid item 6.

130 : Ibid item 8.

131 : Ibid. item 9.

132 : Ibid item 9 and also Acts Interpretation Act 1954 (Qld) s 36.

133 : In the ACT the heath care principle is set out in Powers of Attorney Act 2006 (ACT) Schedule 1.11.

134 : Ibid Schedule 1.1.

135 : Powers of Attorney Act 1998 (Qld) Schedule 1 item 12(1).

136 : Ibid s 81 and Schedule 1 item 12(2).

137 : Powers of Attorney Act 2006 (ACT) Schedule 1.11.

138 : Advance Care Directives Act 2013 (SA) s 10(g).

139 : Ibid s 10(i).

140 : Advance Personal Planning Act (NT) s. 22.

141 : Ibid s. 23.

142 : Ibid s 24.

143 : Ibid ss 22(2) and (3) and 23.

144 : Ibid s 22(5).

145 : Ibid s 22(50(c).

146 : Ibid s. 22(5A).

147 : Ibid s 22(6).

148 : Ibid s 22(6A) and (7).

149 : Ibid s 22(8).

150 : Ibid s 23.

151 : Ibid s 23(3).

152 : Powers of Attorney Act 1998 (Qld) Schedule 1 item 7(4).

153 : Ibid. item 7(6).

154 : Ibid item 7(5).

155 : Advance Care Directives Act 2013 (SA) s 10(g).

156 : Ibid. s 10(i). See also Chapter 13. 5. 3. 7.

157 : Guardianship and Administration Act 1995 (Tas) s 6.

158 : MKC (Review EG) 14-7-06 [14]; Guardianship and Administration Act 1995 (Tas) s 6 and 27.

159 : Ibid.

160 : Guardianship Act 1987 (NSW) s 4. S 4(d) in particular.

161 : Guardianship and Administration Act 1990 (WA) s (2)(e).

162 : Powers of Attorney Act 2006 (ACT) Schedule 1.

163 : Ibid. ss 1.6 and 1.7.

164 : Ibid s 1.6(5).

165 : Guardianship and Administration Act 1986 (Vic) s 4(2).

166 : Ibid s 4(2)(c).

167 : Powers of Attorney Act 2014 (Vic) s 143(1).

168 : Guardianship Act 1987 (NSW) ss 26-28. In 2013 when giving its reasons for decision in relation to review the appointment of an enduring guardian, the then NSW Guardianship Tribunal stated that it did not have "general jurisdiction" to make declaratory orders regarding the meaning and interpretation of the terms of an enduring guardianship appointment; see CDI [2013] NSWGT9, [39]. While that is true, the Tribunal's successor, the Guardianship Division of NCAT, when exercising its jurisdiction under ss 26-28 of the Act, on the application of a guardian, including an enduring guardian, to give directions to that guardian as to the exercise of their guardianship functions, may have to express views about the scope, and thus the interpretation, of one or more of those functions in order to give meaningful and helpful directions.

169 : Powers of Attorney Act 1998 (Qld) s 118.

170 : Guardianship and Administration Act 1993 (SA); s 74 and Guardianship and Administration Act 1995 (Tas) s 35 and Powers of Attorney Act 2014 (Vic) s 121. For an example of advice and directions being requested from and then given be the Tasmanian Guardianship and Administration Board see, TN (Advice and Direction to EG) 26-8-05.

171 : Powers of Attorney Act 2014 (Vic) s 121.

172 : Guardianship and Administration Act 1990 (WA) s 110M.

173 : Guardianship and Management of Property Act 1991 (ACT) s 62(2)(a).

174 : It should be noted that s 26 of the Advance Care Directives Act 2013 (SA) specifically authorises a substitute decision-maker to obtain such advice (whether of a professional or technical nature or otherwise) as they reasonably require in relation to the exercise of their powers, or discharge of their responsibilities, under an advance care directive. This is a different matter from dealing with disputes arising in relation to the exercise of the powers and functions of substitute decision-makers and from clarifying the nature and scope of a substitute decision-makers powers or responsibilities under an advance care directive.

175 : Advance Care Directives Act 2013 (SA) s 45(1).

176 : Ibid ss 45(2)-(5), 45(7) and 48.

177 : Ibid s 45(3)(b).

178 : Ibid s 46A.

179 : Ibid s 43 for the definition of the term 'eligible person'.

180 : Ibid s 45(5)(a). As at 9-11-2015 no other declaration had been prescribed by the Advance Care Directives Regulations 2014 (SA).

181 : Ibid s 45(5)(b).

182 : Ibid s 45(3)(a). The procedures for the Public Advocate to refer a matter to SACAT are set out in cl. 15(1) of the Advance Care Directives Regulations 2014 (SA).

183 : Ibid s 43(7). The procedures for the Public Advocate to refer a matter to SACAT are set out in cl. 15(1) of the Advance Care Directives Regulations 2014 (SA).

184 : Ibid s 48(3)(b).

185 : Ibid s 48(1)(b).

186 : Ibid s 48(3)(b).

187 : Ibid s 49. The procedures for SACAT to refer a matter to the Public Advocate are set out in cl. 15(2) of the Advance Care Directives Regulations 2014 (SA).

188 : Ibid s 48(1)(a).

189 : Ibid s 48(3)(a).

190 : Ibid s 48(3)(b).

191 : Ibid ss 45(6) and 48(4).

192 : Advance Personal Planning Act (NT) s 58. As to the jurisdiction and powers of NTCAT see, ss 56-64.

193 : Guardianship Act 1987 (NSW) ss 6H-6HB, Powers of Attorney Act 1998 (Qld) ss 46-59A, Guardianship and Administration Act 1995 (Tas) s 34, Powers of Attorney Act 2006 (ACT) s 55, Advance Care Directives Act 2013 (SA) s 29 (where the giver is competent) and ss 30-32 (where the giver is not competent) and Advance Personal Planning Act (NT) s 12.

194 : While the Guardianship and Administration Act 1990 (WA) does not provide for the revocation of an appointment of enduring guardianship by the appointor, the Interpretation Act 1984 (WA) s 52(1) provides that, where a person may appoint another to an office - here the office of enduring guardian - they may also remove that person from that office. We assume that if a person has decision-making capacity to make an advance personal plan, they have the power to revoke such a plan thus revoking the appointment of ant decision maker appointed under it. The Local Court has power to revoke an advance personal plan in somewhat limited circumstances see, Advance Personal Planning Act (NT) s 61(5).

195 : Guardianship Act 1987 (NSW) s 6HB, Guardianship and Administration Act 1995 (Tas) s 34, Guardianship and Administration Act 1986 (Vic) s 35D and Guardianship and Administration Act 1990 (WA) s 110N, Powers of Attorney Act 1998 (Qld) s 55; Powers of Attorney Act 2006 (ACT) 53 and Advance Personal Planning Act (NT) s 19.

196 : Guardianship and Administration Act 1986 (Vic) s 35C.

197 : Powers of Attorney Act 2014 (Vic) s 121.

198 : Guardianship Act 1987 (NSW) s 6HB(1)(b), Powers of Attorney Act 1998 (Qld) ss 55, 72 and 82 and Powers of Attorney Act 2006 (ACT) 53. In both New South Wales and Queensland, the Supreme Court has jurisdiction to deal with this matter, but it is usually dealt with by the State's guardianship tribunal. See Guardianship Act 1987 (NSW) s 6L, Powers of Attorney Act 1998 (Qld) ss 108, 109 and 109A.

199 : Advance Care Directives Act 1913 (SA) s 27(1).

200 : Ibid s 27(2) and (3).

201 : Guardianship Act 1987 (NSW) s 6I.

202 : Ibid s 6I(2).

203 : Guardianship and Administration Act 2000 (Qld) s 22(1). Note ss 23-25 relating appointments of guardians without knowledge of the enduring power of attorney and the attorney acting without knowledge of the appointment of the guardian.

204 : Guardianship and Administration Act 1995 (Tas) s 34(1) and Guardianship and Administration Act 1990 (WA) s 110N.

205 : Guardianship and Management of Property Act 1991 (ACT) ss 62(2)(c) and 8B(1)(d).

206 : Ibid. s 8B(2).

207 : Guardianship and Administration Act 1986 (Vic) s 35D.

208 : Powers of Attorney Act 2014 (Vic) ss 143.

209 : Note that it has not been possible to make an enduring power of attorney in the NT since 16 March 2014. However since 17 March 2014 adults have been able to make advance person plans which replace enduring powers of attorney.

210 : Guardianship of Adults Act (NT) s 18.

211 : Guardianship Act 1987 (NSW) s 6J.

212 : Ibid s 6K(1). For an example of a review of an appointment of an appointment of an enduring guardian see, Matter No. 2002/4385 (unreported, Guardianship Tribunal, 6 December 2002).

213 : Ibid. s 6K(2). For examples of appointments of enduring guardianship being revoked in the best interests of the appointor see, CNI [2008] NSWGT 17 and QBU [2008] NWSGT 19. For a case in which the enduring guardian wanted his appointment revoked see, MKT [2016] NSWCATGD 37. Note paragraph [37].

214 : Ibid. s 6K(3).

215 : ICQ [2012] NSWGT 15.

216 : LRS [2012] QCAT 112.

217 : For an example see; HAP [2014] NSWCATGD 4.

218 : Ibid s 6K(4).

219 : Guardianship and Administration Act 1990 (WA) ss 110J and 110N.

220 : Guardianship and Administration Act 1990 (WA) ss 110J and 110N.

221 : Ibid s 110N(1).

222 : For examples of the process in action see, LS [2016] WASAT 89 and FH [2016] WASAT 95.

223 : Guardianship and Administration Act 1995 (Tas) s 34(1).

224 : Powers of Attorney Act 2014 (Vic) s 143(2).

225 : Powers of Attorney Act 1998 (Qld) ss 108 and 109A.

226 : The maker's family members are defined in s 110(5) of the Powers of Attorney Act 1998 (Qld) as follows: the maker's spouse, each of the maker's children who is 18 years or more (including a stepchild, an adopted child, and a person for whom the maker was foster-parent or guardian when the person was a child) and each of the maker's parents (including a step-parent, adoptive parent, foster-parent and guardian). If none of these is reasonably available, then each of the maker's siblings who is 18 years or more (including a step-sibling, adopted sibling, and foster-sibling).

227 : It would appear that any attorney appointed by the maker, whether in relation to the enduring power of attorney for personal matters or otherwise could apply to the Tribunal or Court. The attorney would have to be an attorney under a current power of attorney.

228 : Powers of Attorney Act 1998 (Qld) s 110(3).

229 : Ibid s 110(4).

230 : Ibid s 113(1) and (2).

231 : Ibid s 113(3).

232 : Ibid s 114.

233 : RJE [2005] QGAAT 4.

234 : Powers of Attorney Act 1998 (Qld) s 116.

235 : Ibid s 117.

236 : For some examples see; ELF [2006] QGAAT 74, MAE [2013] QCAT 184 and BMD [2013] QCAT 479.

237 : Guardianship and Management of Property Act 1991 (ACT) s 62(2)and(3). As to who are interested persons see Chapter 10. 11. 7. 1.

238 : Ibid s 63.

239 : Ibid s 62 (4).

240 : Ibid s 66.

241 : Advance Personal Planning Act (NT) ss 58(b), (g) and (h) and 61.

242 : Advance Care Directives Act 1013 (SA) s 27(1).

243 : Ibid s 29(1).

244 : This is done by either by giving another advance care directive, or by giving, or causing to be given, a written indication that they have revoked the advance care directive. Ibid s 29(3)(a).

245 : Ibid s 29(3)(b).

246 : The term "eligible person is defined in s 43 of the Advance Care Directives Act 2013 (SA).

247 : See Advance Care Directives Act 2013 (SA) s 21(2) for other matters that preclude a person from being appointed a substitute decision-maker for another particular person. These are a paid carer or a health practitioner who is responsible (whether solely or with others) for the health care of the person who gave the advance care directive. As at 10-11-2015, no other class of persons had been prescribed in the Advance Care Directives Regulations 2014 (SA) as being precluded from being appointed as a substitute decision-maker for a giver of an advance care directive.

248 : Advance care Directives Act 2013 (SA) s 51(1)(d) to (f) and 51(2).

249 : Ibid. s 51(5).

250 : Guardianship and Administration Act 1993 (SA) s 31A(1).

251 : Ibid s 31A(2).


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