This alert applies to subscribers who provide services to individuals with impaired capacity and will likely amend the QLD – Guardianship and Decision Making for Incapacitated Adults module.
Guardianship and Administration and Other Legislation Amendment Bill 2018 (Qld)
Please be advised that the Guardianship and Administration and Other Legislation Amendment Bill 2018 (Qld) (the Bill) passed its Third Reading in Queensland Parliament on 26 March 2019 and received Royal Assent on 11 April 2019. Parts of the Bill commenced on 11 April 2019 with the remainder due to commence on a date to be proclaimed.
Queensland’s guardianship legislation is comprised of the Guardianship and Administration Act 2000 (Qld) (GAA), the Powers of Attorney Act 1998 (Qld) (POA) and the Public Guardian Act 2014 (Qld) (PGA).
The objective of the Bill is to amend the guardianship legislation to:
- provide a focus on contemporary practice and human rights for adults with impaired capacity;
- enhance safeguards for adults with impaired capacity, and
- improve the efficiency and clarity of Queensland’s guardianship system.
Some of the key amendments are described below.
Contemporary practice and human rights for adults with impaired capacity
The Bill redrafts the general and health care principles to be more closely aligned with relevant articles of the United Nations Convention on the Rights of Persons with Disabilities. Both sets of principles will also be relocated to the beginning of both the GAA and POA (from their current location in the schedules of both Acts).
The Bill also clarifies that a person making a decision for an adult on an informal basis must still apply the general principles and further requires that the principles should be applied whenever a person or entity performs a function or power under the GAA and POA, not just in relation to an adult with impaired capacity.
The Bill strengthens the eligibility requirements for an attorney under an enduring power of attorney (EPA) so that the eligible attorney must have capacity for a matter and must not have been a paid carer for the principal in the previous three years.
Amendments to section 29 will make it clear that service providers for a residential service where the principal (the adult) is a resident are precluded from being the principal’s attorney under an advance health directive (AHD), not just an EPA.
Similarly, the Bill amends section 63 to align the eligibility requirements for a statutory health attorney with existing eligibility requirements for an attorney under an EPA, so that a service provider for a residential service where the principal is resident or a health provider cannot be a statutory health attorney for these purposes.
The intent of these amendments is to ensure that unsuitable people cannot act as attorneys for adults with impaired capacity and to reduce the risk of abuse or exploitation to an adult by a person appointed under an enduring document.
Improving the efficiency and clarity
Currently, section 100 of the POA provides protection from liability where a person other than an attorney (such as a health provider) acts in reliance of an invalid AHD or EPA. The particular wording of this section and the definition of ‘invalidity’ in section 96 has created some uncertainty as to whether the protection from liability would extend to a person who acted in reliance on a direction in an AHD without knowing that the AHD had been revoked.
The Bill amends section 96 and 100 of the POA to ensure that the protection that is provided to a person (such as a health provider), who acts in reliance on an invalid enduring document in relation to a health matter, also extends to a person who acts in reliance on a direction under an invalid AHD, or a direction that is otherwise inoperative, as long as the person acts in ‘good faith’.
Section 102 will also be amended to clarify that a health provider is protected from liability to the extent the person does not know of an adult’s AHD, as long as the health provider acts in ‘good faith’.
The ‘good faith’ test is intended to help prevent the misuse of the protections provided to health providers under the Act.
Due to extensive nature of the changes being made by the Bill, we refer you to the Explanatory Notes, which can be accessed here, for more information, or alternatively, please click here to access the full Bill.
For further information please contact the Law Compliance team:
Phone: 1300 862 667