Western Australian Current Acts Western Australian Current Acts[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).]
(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.]
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.
|
Short title |
Number and year |
Assent |
Commencement |
|---|---|---|---|
|
24 of 1990 |
7 Sep 1990 |
s. 1 and 2: 7 Sep 1990; | |
|
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; |
|
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
| |||
|
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
| |||
|
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)): |
|
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
| |||
|
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
| |||
|
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 13 |
14 of 2020 (as amended by No. 32 of 2023 Pt. 3) |
6 Apr 2020 |
s. 1 and 2: 6 Apr 2020 (see s. 2(a)); |
|
9 of 2022 |
14 Apr 2022 |
1 Jul 2022 (see s. 2(c) and SL 2022/113 cl. 2) | |
|
Criminal Law (Mental Impairment) Act 2023 Pt. 15 Div. 16 |
10 of 2023 |
13 Apr 2023 |
1 Sep 2024 (see s. 2(b) and SL 2024/175 cl. 2) |
|
Abortion Legislation Reform Act 2023 Pt. 4 Div. 5 |
20 of 2023 |
27 Sep 2023 |
27 Mar 2024 (see s. 2(b) and SL 2024/21 cl. 2) |
|
Guardianship and Administration Amendment (Medical Research) Act 2023 Pt. 2 |
32 of 2023 |
11 Dec 2023 |
12 Dec 2023 (see s. 2(b)) |
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) |
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.
13 The Guardianship and Administration Amendment
(Medical Research) Act 2020 s. 13 and 15 were deleted before they came into
operation by the Guardianship and Administration Amendment (Medical Research)
Act 2023 s. 7 and 8 .
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
life sustaining
measure 3(1)
medical practitioner
110ZO
medical research 3(1), 3AA(1),
(2), (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)
registered health practitioner
110ZO
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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.
This work is licensed under a Creative Commons Attribution 4.0 International
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.
By Authority: GEOFF O. LAWN, Government Printer