Guardianship and Administration and Other Legislation Amendment Bill 2017

Introduced: 5/9/2017By: Hon Y D'Ath MPStatus: Lapsed

Health Seniors Justice & Rights Government & Elections

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Plain English Summary

This is an omnibus bill covering multiple policy areas.

Overview

This bill modernises Queensland's guardianship laws to better protect adults with impaired decision-making capacity and align them with international human rights standards. It also makes separate, unrelated changes to integrity advice rules for senior public servants and resolves a conflict between state and federal whistleblower laws for government-owned corporations.

Who it affects

Adults with impaired capacity, their families and carers, and anyone who has made or acts under an enduring power of attorney or advance health directive are most directly affected. Senior public servants and government-owned corporation employees are affected by smaller unrelated changes.

Modernised guardianship principles

The bill rewrites the general and health care principles of Queensland's guardianship laws to line up with the UN Convention on the Rights of Persons with Disabilities, moving them to the front of the Acts and requiring supported decision-making.

Principles now emphasise the presumption of capacity, human rights and supported decision-making
Anyone making a decision for an adult, including informally, must apply the principles
QCAT must seek and consider the views, wishes and preferences of the adult

Stronger safeguards against abuse

The bill tightens who can be appointed as an attorney, guardian or statutory health attorney, and gives QCAT clearer power to recover money when an appointee misuses their position.

People who have been paid carers in the past three years cannot be your enduring attorney
Residential service providers and your health providers cannot be your statutory health attorney
No more than four joint attorneys can be appointed under an enduring power of attorney
QCAT can order former attorneys, guardians or administrators to pay compensation or hand over profits, even after the adult has died

New QCAT powers and the ademption exception

QCAT gets a new power to appoint an administrator for the finances of an adult who is missing, and a new rule stops beneficiaries losing out when a gifted property is sold by an attorney or administrator.

QCAT can appoint an administrator for a missing adult's financial matters, with the order ending automatically if the person is declared dead or is confirmed alive
If an attorney or administrator sells a property that was a specific gift in a will, the beneficiary gets the sale proceeds (unless a court orders otherwise)
Appointments involving land are recorded on the land title so buyers and searchers can see them

Whistleblower and Public Guardian reforms

The bill broadens protection for people reporting suspected abuse of adults with impaired capacity, creates a new reprisal offence, and lets the Public Guardian keep investigating after the adult dies.

Protection extended to disclosures about suspected abuse, neglect or exploitation, not just actual breaches of the Act
New offence of taking reprisal against a whistleblower, with maximum penalty of 167 penalty units or two years imprisonment
Public Guardian can continue investigating complaints of abuse, neglect or exploitation after the adult dies
A consumer's guardian, attorney, administrator or advocate can request a community visitor visit

Integrity Commissioner access (unrelated)

The bill streamlines how senior public servants get ethics advice and extends access to former officials.

Senior executives no longer need their chief executive's sign-off to ask the Integrity Commissioner for advice
Former designated persons can seek advice on post-separation obligations for up to two years after leaving office

Government-owned corporation reporting (unrelated)

The bill fixes a legal clash that could stop government-owned corporations reporting corrupt conduct to the Crime and Corruption Commission.

Declares section 156 of the Government Owned Corporations Act and section 19 of the Public Interest Disclosure Act as Corporations Act displacement provisions
Lets GOCs meet their duty to report suspected corrupt conduct to the CCC without breaching Commonwealth corporate confidentiality rules

How this affects you

Health

•Your advance health directive made while living interstate or overseas will now be recognised in QueenslandClauses 59 and 61Amends sections 32 and 35 POA to clarify that an EPA or AHD made outside Queensland is effective in Queensland.
•Your residential service provider or health provider cannot be your statutory health attorneyClause 67Amends section 63 POA so a person who has the care of an adult, or is a close friend or relation, cannot be a statutory health attorney if they are a health provider or a residential service provider for the adult.
•Health workers get clearer legal protection when acting in good faith on a directive they did not know was invalidClauses 71-73Recasts sections 96, 100 and 102 POA to extend protection to reliance on a direction in an invalid AHD, subject to a good faith test.
•Witnesses to an advance health directive no longer need to be at least 21 years oldClause 58Amends section 31 POA to remove the requirement that the witness for an AHD be at least 21 years of age.

Seniors

•Your recent paid carer cannot be appointed as your enduring attorney for up to three years after caring for youClause 57Amends section 29(1) POA so a person who has been a paid carer for the principal within the previous three years is not eligible.
•You can appoint no more than four joint attorneys under an enduring power of attorneyClause 64Amends section 43 POA to cap joint attorneys at four.
•If an attorney or administrator sells a house you were specifically left in a will, you now get the sale proceeds instead of losing the giftClauses 26 and 66Inserts new sections 60A-60C GAA and 61A-61D POA creating a statutory exception to ademption.
•Attorneys and guardians who misuse their role can be ordered to pay compensation or hand over any profits, even after the person has diedClauses 25 and 74Recasts section 59 GAA and section 106 POA to allow courts and QCAT to order compensation and accounting for profits against former appointees.

Justice & Rights

•QCAT can appoint someone to look after the finances of an adult who has gone missing, protecting their assets before the seven year presumption of death kicks inClause 9New sections 12A and 12B GAA let QCAT appoint an administrator for the financial matters of a missing adult.
•Reporting suspected abuse, neglect or exploitation of a person with impaired capacity is now legally protected, not just reports of actual breaches of the ActClause 39Amends section 247 GAA to cover honest reports about suspected exploitation, abuse or neglect.
•Anyone who retaliates against a whistleblower can be prosecuted (up to two years imprisonment) and sued for damagesClause 40New sections 247A-247C GAA create a reprisal offence with maximum penalty of 167 penalty units or 2 years imprisonment, plus a tort for damages.
•Your views, wishes and preferences must be sought and taken into account in guardianship tribunal decisions, using supported decision-makingClauses 8 and 30New chapter 2A GAA sets out rewritten general and health care principles aligned with the UN Convention on the Rights of Persons with Disabilities.

Government & Elections

•Senior public servants can now ask the Integrity Commissioner for ethics advice directly without needing their boss's sign-offClause 50Amends section 15 of the Integrity Act to remove the requirement for managerial consent.
•Former senior officials can still get Integrity Commissioner advice for two years after they leave the public serviceClause 51New section 20A Integrity Act allows former designated persons to request advice on post-separation obligations for up to two years.
•Government-owned corporations can now report suspected corrupt conduct to the Crime and Corruption Commission without breaching Commonwealth confidentiality rulesClauses 4 and 97Declares section 156 GOC Act and section 19 PID Act to be Corporations Act displacement provisions.

Bill Journey

Introduced5 Sept 2017

First Reading

Committee

Committee Report

Second Reading

Lapsed29 Oct 2017

Referenced Entities

Sectors Affected

Legal Services Public Administration Aged Care Disability Services Civil Law

Classified using AGIFT/ANZSIC Australian government standards