GAA - Purpose of Act and general principles

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If you are unfamiliar with guardianship and administration law, you may want to first read the GAA - Guardianship and Administration toolkit.

It is important when applying the Guardianship and Administration Act 2000 (Qld) (GAA Act) to always keep in mind the purpose of the Act. It is also important to understand that any one who purports to perform a function or exercise a power under the Act must apply the General Principles, and if appropriate, the Health Care Principle.

This fact sheet sets out the purpose of the GAA Act, the General Principles and the Health Care Principle.

Intent of the Guardianship and Administration Act 2000

Section 5 of the GAA Act acknowledges the following:

  • an adult's right to make decisions is fundamental to the adult's inherent dignity;
  • the right to make decisions includes the right to make decisions with which others may not agree;
  • the capacity of an adult with impaired capacity to make decisions may differ according to:
    • the nature and extent of the impairment; and
    • the type of decision to be made, including, for example, the complexity of the decision to be made; and
    • the support available from members of the adult's existing support network;
  • the right of an adult with impaired capacity to make decisions should be restricted, and interfered with, to the least possible extent;
  • an adult with impaired capacity has a right to adequate and appropriate support for decision making.

Section 6 provides that the GAA Act seeks to strike an appropriate balance between:

  • the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision making; and
  • the adult's right to adequate and appropriate support for decision making.

Application of general principles and health care principles

Section 11 provides that a person or other entity that performs a function or exercises a power under the GAA Act in relation to an adult with impaired capacity must apply the general principles. For example, if an adult has impaired capacity for a matter, a guardian or administrator who may exercise power for the matter must apply the general principles. The Tribunal is also bound to apply the general principles when making a decision in relation to an adult.

If the matter relates to a health matter or special health matter, then the person or other entity must apply both the general principles and the health care principle.

General principles - Schedule 1, Part 1

The general principles, which can be found in Schedule 1, Part 1 of the GAA Act, are set out in full below.

1 Presumption of capacity

An adult is presumed to have capacity for a matter.

2 Same human rights

  1. The right of all adults to the same basic human rights regardless of a particular adult's capacity must be recognised and taken into account.
  2. The importance of empowering an adult to exercise the adult's basic human rights must also be recognised and taken into account.

3 Individual value

An adult's right to respect for his or her human worth and dignity as an individual must be recognised and taken into account.

4 Valued role as member of society

  1. An adult's right to be a valued member of society must be recognised and taken into account.
  2. Accordingly, the importance of encouraging and supporting an adult to perform social roles valued in society must be taken into account.

5 Participation in community life

The importance of encouraging and supporting an adult to live a life in the general community, and to take part in activities enjoyed by the general community, must be taken into account.

6 Encouragement of self-reliance

The importance of encouraging and supporting an adult to achieve the adult's maximum physical, social, emotional and intellectual potential, and to become as self-reliant as practicable, must be taken into account.

7 Maximum participation, minimal limitations and substituted judgment

  1. An adult's right to participate, to the greatest extent practicable, in decisions affecting the adult's life, including the development of policies, programs and services for people with impaired capacity for a matter, must be recognised and taken into account.
  2. Also, the importance of preserving, to the greatest extent practicable, an adult's right to make his or her own decisions must be taken into account.
  3. For example:
    • the adult must be given any necessary support, and access to information, to enable the adult to participate in decisions affecting the adult's life; and
    • to the greatest extent practicable, for exercising power for a matter for the adult, the adult's views and wishes are to be sought and taken into account; and
    • a person or other entity in performing a function or exercising a power under this Act must do so in the way least restrictive of the adult's rights.
  4. Also, the principle of substituted judgment must be used so that if, from the adult's previous actions, it is reasonably practicable to work out what the adult's views and wishes would be, a person or other entity in performing a function or exercising a power under this Act must take into account what the person or other entity considers would be the adult's views and wishes.
  5. However, a person or other entity in performing a function or exercising a power under this Act must do so in a way consistent with the adult's proper care and protection.
  6. Views and wishes may be expressed orally, in writing or in another way, including, for example, by conduct.

8 Maintenance of existing supportive relationships

The importance of maintaining an adult's existing supportive relationships must be taken into account.

9 Maintenance of environment and values

  1. The importance of maintaining an adult's cultural and linguistic environment, and set of values (including any religious beliefs), must be taken into account.
  2. For an adult who is a member of an Aboriginal community or a Torres Strait Islander, this means the importance of maintaining the adult's Aboriginal or Torres Strait Islander cultural and linguistic environment, and set of values (including Aboriginal tradition or Island custom), must be taken into account.
Notes:
  • Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships-see the Acts Interpretation Act 1954, Schedule 1.
  • Island custom, known in the Torres Strait as Ailan Kastom, means the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally or of a particular community or group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships-see the Acts Interpretation Act 1954, section 36.

10 Appropriate to circumstances

Power for a matter should be exercised by a guardian or administrator for an adult in a way that is appropriate to the adult's characteristics and needs.

11 Confidentiality

An adult's right to confidentiality of information about the adult must be recognised and taken into account.

Health Care Principle - Schedule 1, Part 2

The health care principle, which can be found in Schedule 1, Part 2 of the GAA Act, is set out in full below.

12 Health care principle

  • The "health care principle" means power for a health matter, or special health matter, for an adult should be exercised by a guardian, the adult guardian, the tribunal, or for a matter relating to prescribed special health care, another entity:
    • in the way least restrictive of the adult's rights;a nd
    • only if the exercise of power:
      • is necessary and appropriate to maintain or promote the adult's health or wellbeing; or
      • is, in all the circumstances, in the adult's best interests.
      • Example of exercising power in the way least restrictive of the adult's rights: If there is a choice between a more or less intrusive way of meeting an identified need, the less instrusive way should be adopted.
  • In deciding whether the exercise of a power is appropriate, the guardian, adult guardian, tribunal or other entity must, to the greatest extent practible:
    • seek the adult's views and wishes and take them into account; and
    • take the information given by the adult's health provider into account.
    • Note: see section 76 (Health providers to give information).
  • The adult's views and wishes may be expressed:
    • orally; or
    • in writing, for example, in an advance health directive; or
    • in another way, including, for example, by conduct.
  • The health care principle does not affect any right an adult has to refuse health care.
  • In deciding whether to consent to special health care for an adult, the tribunal or other entity must, to the greatest extent practible, seeks the views of the following person and take them into account:
    • (a) a guardian appointed by the tribunal for the adult;
    • (b) if there is no guardian mentioned in paragraph (a), an attorney for a health matter appointed by the adult;
    • (c) if there is no guardian or attorney mentioned in paragraph (a) or (b), the statutory health attorney for the adult.

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