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GUARDIANSHIP AND ADMINISTRATION ACT 1990 - SCHEDULE 5

[s. 124]

        [Heading amended: No. 19 of 2010 s. 18(7).]

Division 1 — Transitional matters for Guardianship and Administration Act 1990

        [Heading inserted: No. 25 of 2014 s. 22.]

1A .         Application of this Division

                This Division does not apply in relation to the estate of a person to whom Division 2 applies.

        [Clause 1A inserted: No. 25 of 2014 s. 23.]

1 .         Existing functions of Public Trustee to continue

        (1)         Where immediately before the commencement of section 123 the Public Trustee had the care and management of the estate of an incapable patient under section 24 of the Public Trustee Act 1941 or of an infirm person under section 36C of that Act, he shall, subject to this clause, continue to have those functions under that section and other functions conferred on him in that capacity by any other written law, and the Public Trustee Act 1941 and such other written law shall continue to apply for that purpose, as if section 123 had not come into operation.

        (2)         Subclause (1) also applies, with all necessary changes, where the Public Trustee derives his authority from section 34 of the Public Trustee Act 1941 .

        (3)         The Public Trustee shall cease to have the functions under section 24 referred to in subclause (1) when he is notified —

            (a)         that the incapable patient has died;

            (b)         under subclause (5), that the incapable patient —

                  (i)         is capable of managing his affairs; or

                  (ii)         is no longer an involuntary patient under the Mental Health Act 1996 or, in the case of a voluntary patient, has left the hospital;

                or

            (c)         that an administration order has been made under Part 6 in respect of the incapable patient.

        (4)         The Public Trustee shall cease to have the functions under section 36C referred to in subclause (1) when he is notified —

            (a)         that the infirm person has died; or

            (b)         that an administration order has been made under Part 6 in respect of the infirm person,

                or when he certifies under the Public Trustee Act 1941 that a person is not, or has ceased to be, an infirm person.

        (5)         Where the functions of the Public Trustee under section 24 of the Public Trustee Act 1941 are continued under subclause (1) in respect of an incapable patient, the officer in charge of the authorised hospital in which the person is a patient under the Mental Health Act 1996 shall notify the Public Trustee in the prescribed form if the patient —

            (a)         dies;

            (b)         in the opinion of a psychiatrist at the hospital becomes capable of managing his affairs; or

            (c)         is no longer an involuntary patient under the Mental Health Act 1996 or, in the case of a voluntary patient, leaves the hospital.

        (6)         The officer in charge of an authorised hospital, when notifying the Public Trustee under subclause (5) that a person is no longer an involuntary patient or has left the hospital, shall also report to the Public Trustee whether or not, in the opinion of a psychiatrist at the hospital, the person is capable of managing his affairs.

        (7)         If the officer in charge reports to the Public Trustee under subclause (6) that the person is not capable of managing his affairs, the Public Trustee shall continue to have the care and management of the estate of that person by virtue of subclause (1) as if immediately before the commencement of this Act the person had been an infirm person under section 36C of the Public Trustee Act 1941 .

        [Clause 1 amended: No. 69 of 1996 s. 37.]

2 .         Existing managers under Mental Health Act 1962 to continue

        (1)         Where immediately before the commencement of section 123, a manager of the estate of an incapable person is in office under Part VI of the Mental Health Act 1962 7 , he shall, subject to this clause, continue to have that function and other functions conferred on him in that capacity by any other written law, and Part VI of that Act and such other written law shall continue to apply for that purpose, as if section 123 had not come into operation.

        (2)         Subclause (1) also applies, with all necessary changes, where the Public Trustee is the manager of the estate of a person under section 25 of the Public Trustee Act 1941 .

        (3)         A manager referred to in this clause shall cease to hold office as manager of the estate of a person when he is notified —

            (a)         that the person has died;

            (b)         that the Supreme Court has made an order under section 66 of the Mental Health Act 1962 7 or the appointment has been revoked under section 25(2) of the Public Trustee Act 1941 ; or

            (c)         that an administration order has been made under Part 6 in respect of the person.

3 .         Application for administration order may be made

        (1)         A person may at any time apply to the State Administrative Tribunal under Part 4 for an administration order in respect of a person notwithstanding that —

            (a)         the Public Trustee has the care and management of the estate of that person; or

            (b)         a manager of the estate of that person is in office under Part IV of the Mental Health Act 1962 7 ,

                as provided in clause 1 or 2 or by operation of clause 5.

        (2)         Where an application is made for an administration order and a manager is in office as mentioned in subclause (1)(b), notice under section 41 shall be given to the Principal Registrar of the Supreme Court and to the manager.

        [Clause 3 amended: No. 55 of 2004 s. 466(1).]

4 .         References in other laws

        (1)         In any written law and in any deed or other instrument, unless clause 1 or 2 applies or the context is such that it would be incorrect or inappropriate, a reference to —

            (a)         an incapable person within the meaning in section 5 of the Mental Health Act 1962 7 shall be read as a reference to a person in respect of whom an administration order is in force under Part 6;

            (b)         a manager within the meaning in that section shall be read as a reference to an administrator under this Act.

        (2)         In any written law other than this Act, unless the context is such that it would be incorrect or inappropriate, a reference to a represented person shall include a person who, after the commencement of this Act, is an incapable person, an incapable patient or infirm person in the circumstances provided for in clause 1 or 2.

5 .         Proceedings in progress under Mental Health Act 1962 Pt. VI

                If —

            (a)         an application under section 64(1) of the Mental Health Act 1962 7 has been made but not disposed of before the commencement of section 123; or

            (b)         any matter or thing has been commenced under section 64(6) or (7) of that Act but not completed to the satisfaction of the court before the commencement of section 123,

                the application, matter or thing may be completed under Part VI of the Mental Health Act 1962 7 after the commencement of section 123 as if that section had not come into operation.

6 .         Final accounts where administration order made

                Where an administration order is made as mentioned in clause 2(3)(c), the accounts of the manager shall be taken in accordance with rules of court having application for the purposes of clause 2(1) as if the manager had been discharged on the day on which the administration order is made.

Division 2 — Transitional matters in connection with Mental Health Act 2014

        [Heading inserted: No. 25 of 2014 s. 24.]

7 .         Estates being managed by Public Trustee under Division 1

        (1)         Subclause (2) applies to a person whose estate was, immediately before the day on which the Mental Health Legislation Amendment Act 2014 section 24 commences (the prescribed day ) —

            (a)         under the care and management of the Public Trustee as provided by clause 1; or

            (b)         being managed by the Public Trustee as provided by clause 2 or because of clause 5.

        (2)         The person is taken to be under an administration order appointing the Public Trustee as the administrator of the person’s estate.

        (3)         Despite any other provision of this Act or any provision of the Public Trustee Act 1941 , the Public Trustee has the same functions, duties and powers in relation to the person’s estate that the Public Trustee had immediately before the prescribed day.

        (4)         An administration order referred to in subclause (2) must be reviewed under section 84 on or within 3 years after the prescribed day.

        (5)         The Public Trustee must, on or as soon as practicable after the prescribed day, give to the Public Advocate and the State Administrative Tribunal a list of the persons to whom subclause (2) applies.

        [Clause 7 inserted: No. 25 of 2014 s. 24.]


Notes

This is a compilation of the Guardianship and Administration Act 1990 and includes amendments made by other written laws. For provisions that have come into operation, and for information about any reprints, see the compilation table. For provisions that have not yet come into operation see the uncommenced provisions table.

Compilation table

Short title

Number and year

Assent

Commencement

Guardianship and Administration Act 1990

24 of 1990

7 Sep 1990

s. 1 and 2: 7 Sep 1990;
Act other than s. 1 and 2, Pt. 4-7, s. 123, 124 and Sch. 2, 4 and 5: 1 Jul 1992 (see s. 2 and Gazette 26 Jun 1992 p. 2649);
Pt. 4-7, s. 123, 124 and Sch. 2, 4 and 5: 20 Oct 1992 (see s. 2 and Gazette 2 Oct 1992 p. 4811)

Guardianship and Administration Amendment Act 1992

16 of 1992

17 Jun 1992

17 Jun 1992 (see s. 2)

Acts Amendment (Public Sector Management) Act 1994 s. 3(2)

32 of 1994

29 Jun 1994

1 Oct 1994 (see s. 2 and Gazette 30 Sep 1994 p. 4948)

Guardianship and Administration Amendment Act 1996

7 of 1996

24 May 1996

s. 1 and 2: 24 May 1996;
Act other than s. 1 and 2: 1 Jul 1996 (see s. 2 and Gazette 28 Jun 1996 p. 3014)

Mental Health (Consequential Provisions) Act 1996 Pt. 8

69 of 1996

13 Nov 1996

13 Nov 1997 (see s. 2)

Reprint of the Guardianship and Administration Act 1990 as at 21 Apr 1997
(includes amendments listed above except those in the Mental Health (Consequential Provisions) Act 1996 )

Acts Amendment and Repeal (Family Court) Act 1997 s. 32

41 of 1997

9 Dec 1997

26 Sep 1998 (see s. 2 and Gazette 25 Sep 1998 p. 5295)

Statutes (Repeals and Minor Amendments) Act 1997 s. 67

57 of 1997

15 Dec 1997

15 Dec 1997 (see s. 2(1))

Guardianship and Administration Amendment Act 1998

8 of 1998

30 Apr 1998

30 Apr 1998 (see s. 2)

Guardianship and Administration Amendment Act 2000 8

70 of 2000

4 Dec 2000

4 Dec 2000 (see s. 2)

Acts Amendment (Lesbian and Gay Law Reform) Act 2002 Pt. 10

3 of 2002

17 Apr 2002

21 Sep 2002 (see s. 2 and Gazette 20 Sep 2002 p. 4693)

Reprint of the Guardianship and Administration Act 1990 as at 22 Nov 2002
(includes amendments listed above)

Sentencing Legislation Amendment and Repeal Act 2003 s. 70

50 of 2003

9 Jul 2003

15 May 2004 (see s. 2 and Gazette 14 May 2004 p. 1445)

Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 s. 40

65 of 2003

4 Dec 2003

1 Jan 2004 (see s. 2 and Gazette 30 Dec 2003 p. 5722)

Criminal Code Amendment Act 2004 s. 58

4 of 2004

23 Apr 2004

21 May 2004 (see s. 2)

Children and Community Services Act 2004 Sch. 2 cl. 11

34 of 2004

20 Oct 2004

1 Mar 2006 (see s. 2 and Gazette 14 Feb 2006 p. 695)

Acts Amendment (Court of Appeal) Act 2004 s. 37 (Sch. 1 cl. 7) 9

45 of 2004 (as amended by No. 2 of 2008 s. 75(3))

9 Nov 2004

Sch. 1 cl. 7 (the amendments to s. 18(1) and 19(b)):
1 Feb 2005 (see s. 2 and Gazette 14 Jan 2005 p. 163)

Courts Legislation Amendment and Repeal Act 2004 s. 141

59 of 2004

23 Nov 2004

1 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7128)

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 2 Div. 56 Subdiv. 1 10, 11

55 of 2004

24 Nov 2004

24 Jan 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7130)

Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 s. 82

84 of 2004

16 Dec 2004

2 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7129 (correction in Gazette 7 Jan 2005 p. 53))

Reprint 3: The Guardianship and Administration Act 1990 as at 1 Apr 2005
(includes amendments listed above except those in the Children and Community Services Act 2004 , the Courts Legislation Amendment and Repeal Act 2004 and the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 )

Family Legislation Amendment Act 2006 Pt. 6 Div. 2

35 of 2006

4 Jul 2006

15 Jul 2006 (see s. 2 and Gazette 14 Jul 2006 p. 2559)

Criminal Investigation (Consequential Provisions) Act 2006 s. 73

59 of 2006

16 Nov 2006

1 Jul 2007 (see s. 2 and Gazette 22 Jun 2007 p. 2838)

Wills Amendment Act 2007 s. 25

27 of 2007

26 Oct 2007

9 Feb 2008 (see s. 2 and Gazette 8 Feb 2008 p. 313)

Acts Amendment (Justice) Act 2008 Pt. 12

5 of 2008

31 Mar 2008

30 Sep 2008 (see s. 2(d) and Gazette 11 Jul 2008 p. 3253)

Legal Profession Act 2008 s. 667

21 of 2008

27 May 2008

1 Mar 2009 (see s. 2(b) and Gazette 27 Feb 2009 p. 511)

Medical Practitioners Act 2008 Sch. 3 cl. 22

22 of 2008

27 May 2008

1 Dec 2008 (see s. 2 and Gazette 25 Nov 2008 p. 4989)

Acts Amendment (Consent to Medical Treatment) Act 2008 Pt. 2 12

25 of 2008

19 Jun 2008

Pt. 2 other than s. 11 (to the extent that it inserts s. 110RA, 110ZAA, 110ZAB and 110ZAC) and s. 12: 15 Feb 2010 (see s. 2 and Gazette 8 Jan 2010 p. 9)

Surrogacy Act 2008 Pt. 4 Div. 4

47 of 2008

10 Dec 2008

1 Mar 2009 (see s. 2(b) and Gazette 27 Feb 2009 p. 512)

Reprint 4: The Guardianship and Administration Act 1990 as at 6 Feb 2009
(includes amendments listed above except those in the Legal Profession Act 2008 , the Surrogacy Act 2008 and the Acts Amendment (Consent to Medical Treatment) Act 2008 )

Statutes (Repeals and Miscellaneous Amendments) Act 2009 s. 68

8 of 2009

21 May 2009

22 May 2009 (see s. 2(b))

Acts Amendment (Bankruptcy) Act 2009 s. 38

18 of 2009

16 Sep 2009

17 Sep 2009 (see s. 2(b))

Reprint 5: The Guardianship and Administration Act 1990 as at 5 Mar 2010 (includes amendments listed above)

Standardisation of Formatting Act 2010 s. 18 and 51

19 of 2010

28 Jun 2010

11 Sep 2010 (see s. 2(b) and Gazette 10 Sep 2010 p. 4341)

Public Sector Reform Act 2010 s. 89

39 of 2010

1 Oct 2010

1 Dec 2010 (see s. 2(b) and Gazette 5 Nov 2010 p. 5563)

Statutes (Repeals and Minor Amendments) Act 2014 s. 12 and 22

17 of 2014

2 Jul 2014

6 Sep 2014 (see s. 2(b) and Gazette 5 Sep 2014 p. 3213)

Mental Health Legislation Amendment Act 2014 Pt. 4 Div. 2

25 of 2014

3 Nov 2014

30 Nov 2015 (see s. 2(b) and Gazette 13 Nov 2015 p. 4632)

Voluntary Assisted Dying Act 2019 Pt. 12 Div. 3

27 of 2019

19 Dec 2019

1 Jul 2021 (see s. 2(b) and SL 2021/83 cl. 2)

Guardianship and Administration Amendment (Medical Research) Act 2020 (other than s. 13 and 15)

14 of 2020

6 Apr 2020

s. 1 and 2: 6 Apr 2020 (see s. 2(a));
Act other than s. 1, 2, 13 and 15: 7 Apr 2020 (see s. 2(c))

Uncommenced provisions table

To view the text of the uncommenced provisions see Acts as passed on the WA Legislation website.

Short title

Number and year

Assent

Commencement

Acts Amendment (Consent to Medical Treatment) Act 2008 Pt. 2

25 of 2008

19 Jun 2008

s. 11 (to the extent that it inserts s. 110RA, 110ZAA, 110ZAB and 110ZAC) and s. 12: to be proclaimed (see s. 2)

Guardianship and Administration Amendment (Medical Research) Act 2020 s. 13 and 15

14 of 2020

6 Apr 2020

7 Apr 2024 (see s. 2(b))

Legal Profession Uniform Law Application Act 2022 s. 424

9 of 2022

14 Apr 2022

To be proclaimed (see s. 2(c))

Other notes

1-3         Footnotes no longer applicable.

4         The Public Trustee Act 1941 s. 53 was deleted by the Public Trustee and Trustee Companies Amendment Act 2008 s. 31.

5, 6         Footnotes no longer applicable.

7         Repealed by the Mental Health (Consequential Provisions) Act 1996 .

8         The Guardianship and Administration Amendment Act 2000 s. 21 reads as follows:


21.         Transitional and validation

        (1)         A person appointed before the commencement day under an enduring power of attorney (as defined in section 102) as the donee of the power in substitution of another donee on or during the occurrence of certain events or circumstances —

            (a)         is, from the commencement day, to be regarded as having been appointed a substitute donee under section 104B; and

            (b)         any act of that person under that power of attorney before the commencement day is to be regarded as having been as valid as if section 104B had been in operation at that time and the person had been appointed a substitute donee under it.

        (2)         Nothing in subsection (1) affects any decision of —

            (a)         the Board under section 109; or

            (b)         a court or other tribunal,

                and to the extent that subsection (1) conflicts or is inconsistent with such a decision, that decision prevails.

        (3)         In subsection (1) —

        commencement day means the day on which this Act comes into operation;

        section means a section of the Guardianship and Administration Act 1990 .


9         The Acts Amendment (Court of Appeal) Act 2004 Sch. 1 cl. 7 (to amend s. 37A and the heading to Part 3 Div. 4) was deleted by the Criminal Law and Evidence Amendment Act 2008 s. 75(3).

10         The State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 5, the State Administrative Tribunal Act 2004 s. 167 and 169, and the State Administrative Tribunal Regulations 2004 r. 28 and 42 deal with certain transitional issues some of which may be relevant for this Act.

11         The State Administrative Tribunal Regulations 2004 r. 52 reads as follows:


52.         Guardianship and Administration Act 1990

        (1)         In this regulation —

        commencement day means the day on which the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Part 2 Division 56 comes into operation;

        the GA Act means the Guardianship and Administration Act 1990 .

        (2)         Unless the context otherwise requires, where in —

            (a)         an arrangement entered into under the GA Act section 44A(1); or

            (b)         a notice of an arrangement published in the Gazette under the GA Act section 44A(2),

                there is a reference to the Guardianship and Administration Board, on or after the commencement day that reference is to be read and construed as a reference to the State Administrative Tribunal.

        (3)         If immediately before the commencement day —

            (a)         the Guardianship and Administration Board is required under the GA Act section 80(3) to examine any accounts lodged under section 80(1) or delivered under section 80(2) of the GA Act; and

            (b)         the Board has not made a decision under the GA Act section 80(3),

                on the commencement day, the obligation to examine those accounts is transferred to the Public Trustee and the Public Trustee is to examine the accounts in accordance with the GA Act section 80.

        (4)         If immediately before the commencement day the Guardianship and Administration Board is carrying out, but has not completed, a review under the GA Act section 85 or 86, on or after the commencement day the review is to be carried out and completed by the State Administrative Tribunal as if the application for the review had been made to it under the relevant section.

        (5)         If —

            (a)         before the commencement day a report is made to the Guardianship and Administration Board under the GA Act section 107(1)(d); and

            (b)         the Board has not made an order under the GA Act section 109(3) in relation to that report,

                on or after the commencement day, the State Administrative Tribunal may make an order under the GA Act section 109(3) as if the report had been made to it under the GA Act section 107(1)(d).

        (6)         If before the commencement day the Guardianship and Administration Board has appointed an auditor under the GA Act section 109(1)(b) and a copy of the auditor’s report has not been furnished to the Board under that provision, on and after the commencement day, the auditor is to be taken to have been appointed by the State Administrative Tribunal and is to furnish the report to the Tribunal and the applicant for the order.

        (7)         If immediately before the commencement day a notice is required to be given under the GA Act section 111(4) but that notice has not been given before the commencement day, on or after the commencement day that notice is to be given by the executive officer of the State Administrative Tribunal.

        (8)         If immediately before the commencement day the Guardianship and Administration Board is dealing with, but has not completed the consideration of, an application under the GA Act section 111(5) or 112(4), on or after the commencement day the application is to be transferred to the State Administrative Tribunal and the Tribunal is to deal with the application as if the application had been made to it under the relevant subsection.

        (9)         If —

            (a)         an enduring power of attorney created by instrument in the form or substantially in the form of the GA Act Schedule 3 Form 1; or

            (b)         a statement of acceptance in the form, or substantially in the form, of the GA Act Schedule 3 Form 2,

                in effect immediately before the commencement day contains a reference to the Guardianship and Administration Board, on and after the commencement day that reference is to be taken to be a reference to the State Administrative Tribunal.


12         The Acts Amendment (Consent to Medical Treatment) Act 2008 s. 14 reads as follows:


14.         Review of the Guardianship and Administration Act 1990

        (1)         The Minister administering the Guardianship and Administration Act 1990 is to carry out a review of the operation and effectiveness of the provisions of the Guardianship and Administration Act 1990 and the relevant sections of The Criminal Code as soon as practicable after the expiration of 3 years from the commencement of this Act.

        (2)         The Minister is to prepare a report based on the review made under subsection (1) and cause the report to be laid before each House of Parliament within 4 years after the commencement of this Act.



Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term         Provision(s)
act         114(4)
administration order         3(1)
administrator         3(1)
advance health directive         3(1), 110ZH
application         3(1)
appointee         110E(1)
appointor         110A
corporate trustee         3(1)
Court         18(1)
Deputy President         3(1)
designated country         67(5)
determination         3(1)
donee         102
electroconvulsive therapy         3(1)
enduring guardian         3(1)
enduring power of attorney         102
enduring power of guardianship         3(1)
executive officer         3(1)
foreign administrator         83B(4)
Full Tribunal         3(1)
guardian         3(1)
guardianship order         3(1)
Health Minister         110ZO
health professional         110ZH
HREC         110ZO
independent medical practitioner         110ZO
lead researcher         110ZO
legal practitioner         3(1)
life sustaining measure         3(1)
medical practitioner         110ZO
medical research         3(1), 3AA(1), 3AA(2), 3AA(3)
member         3(1)
mental disability         3(1)
National Statement         110ZO
nearest relative         3(1)
palliative care         3(1)
party         3(1)
patient         110ZC, 110ZH
personal information         3(1)
placebo         3(1)
prescribed day         Sch. 5 cl. 7(1)
President         3(1)
procedure for the sterilisation         56, 110ZT(1)
Public Advocate         3(1)
Public Trustee         3(1)
relevant finding         67(5)
relevant official         83C(4)
report request         110ZZA(3)
represented person         3(1), 56
research candidate         3(1)
research decision         3(1)
research decision-maker         3(1), 110ZP(1)
researcher         110ZO
review application         110ZO
reviewed decision         110ZO
substitute enduring guardian         3(1)
take research action         110ZX(1)
take treatment action         110ZK(1)
treatment         3(1)
treatment decision         3(1)
urgent medical research decision         110ZO
urgent treatment         110ZH




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