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CLAUSE NOTES
GUARDIANSHIP AND ADMINISTRATION
AMENDMENT BILL 2013
Clause 1: Short title
Provides that the short title of the Act is the
Guardianship and Administration Amendment
Act 2013.
Clause 2: Commencement
Provides that the Act commences on the day
on which it receives the Royal Assent
Clause 3: Principal Act
Provides that where the term "Principal Act" is
referred to in this Bill, it is defined to mean the
Guardianship and Administration Act 1995
Clause 4: Section 3 amended (Interpretation)
Inserts a definition of the term "appointer" as
this term is used in the amendments made by
this Bill.
Clause 5: Sections 32AB, 32AC and 32AD inserted
Section 32AB. Right of enduring
guardian to information
Subsection (1) provides that an enduring
guardian has the right to all the information to
which the appointer is, or would be but for
mental incapacity, entitled to have provided, if
that information is reasonably required for
them to exercise a power as enduring
guardian. Subsection (2) provides the enduring
guardian with a right to obtain a certified copy
of the will of the appointer if the appointer has
lost capacity. Subsection (3) places a duty on
person with custody or control of the
information mentioned in (1) or (2) to disclose
that information to the enduring guardian.
Subsection (4) provides that subsections (1),
(2) and (3) are subject to any contrary
intention or express limitation contained in the
instrument of appointment of enduring
guardian.
Section 32AC. Transactions that may
involve conflict of duty
Prohibits an enduring guardian from entering
into a "conflict transaction" unless this is
specifically authorised in the instrument of
appointment. A conflict transaction is a
transaction that results in, or may result in,
conflict between the duty of the enduring
guardian and the appointer and either the
interests of the enduring guardian or a relative,
business associate or close friend of the
enduring guardian or another duty of the
enduring guardian. Subsection(3) specifically
exempts certain dealings with property held
jointly by the donor and the attorney.
Section 32AD. Keeping of records, &c.
Inserts a requirement that the enduring
guardian must keep an accurate record of all
dealings and transactions made under the
power. When a person ceases to be an
enduring guardian, they must either retain the
records for 7 years or provide the records to
the Board. A person with a proper interest in
the matter may apply to the Board to request
the enduring guardian to provide the records
to the Board. If the enduring guardian fails to
comply with this request they are liable to a
fine of 20 penalty units.
Clause 6: Section 90B inserted
90B. Transitional provisions consequent
on Guardianship and Administration
Amendment Act 2013.
Outlines whether provisions of this Bill apply
to enduring guardianships created before the
commencement of this Bill or not.
Clause 7: Repeal of Act
Is a standard clause in all amending legislation
which automatically repeals the amending
legislation after the Act commences.