covid19-law.com.au
11. Guardianship, Administration & Vulnerable People
A. Overview
The threat posed by COVID-19 is particularly acute in the context of vulnerable persons and may warrant expansion of guardianship powers to protect such persons from harm or to ensure that they comply with government restrictions so as to avoid harming others.
B. Legislation
New South Wales:
Civil and Administrative Tribunal Act 2013 (NSW) amended by the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW).
South Australia:
COVID-19 Emergency Response Act 2020 (SA):
Australian Capital Territory:
Working with Vulnerable People (Background Checking) Act 2011 (ACT) amended by:
Made under the Working with Vulnerable People (Background Checking) Act 2011 (ACT):
Powers of Attorney Act 2006 (ACT) amended by the COVID-19 Emergency Response Legislation Amendment Act 2020 (ACT).
Public Trustee and Guardian Act 1985 (ACT) amended by the COVID-19 Emergency Response Legislation Amendment Act 2020 (ACT).
C. Case law
The risk posed by COVID-19 to a person subject to a guardianship order may provide a basis for variation of such order. In particular, it may be necessary to vary a guardianship order to enable the person subject to the order to be placed in emergency respite accommodation for the duration of the pandemic, where the person lacks the cognitive capacity to understand government restrictions and to self-isolate accordingly: UZX [2020] NSWCATGD 3, [6], [37]-[47].
In GZK [2020] NSWCATGD 5, the NCAT went further, varying the guardianship order of a person at a high risk from COVID-19, to confer on his guardian a specific function, which empowered the guardian to take intrusive steps in order to reduce the COVID-19 related risk to the person. The “new function” conferred by the NCAT is set out in its order (at [3]).
A. Overview
The threat posed by COVID-19 is particularly acute in the context of vulnerable persons and may warrant expansion of guardianship powers to protect such persons from harm or to ensure that they comply with government restrictions so as to avoid harming others.
B. Legislation
New South Wales:
Civil and Administrative Tribunal Act 2013 (NSW) amended by the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW).
South Australia:
COVID-19 Emergency Response Act 2020 (SA):
- Sch 1: Special provisions relating to detention of certain protected persons during COVID-19 pandemic
Australian Capital Territory:
Working with Vulnerable People (Background Checking) Act 2011 (ACT) amended by:
- COVID-19 Emergency Response Act 2020 (ACT); and
- COVID-19 Emergency Response Legislation Amendment Act 2020 (ACT).
Made under the Working with Vulnerable People (Background Checking) Act 2011 (ACT):
Powers of Attorney Act 2006 (ACT) amended by the COVID-19 Emergency Response Legislation Amendment Act 2020 (ACT).
Public Trustee and Guardian Act 1985 (ACT) amended by the COVID-19 Emergency Response Legislation Amendment Act 2020 (ACT).
C. Case law
The risk posed by COVID-19 to a person subject to a guardianship order may provide a basis for variation of such order. In particular, it may be necessary to vary a guardianship order to enable the person subject to the order to be placed in emergency respite accommodation for the duration of the pandemic, where the person lacks the cognitive capacity to understand government restrictions and to self-isolate accordingly: UZX [2020] NSWCATGD 3, [6], [37]-[47].
In GZK [2020] NSWCATGD 5, the NCAT went further, varying the guardianship order of a person at a high risk from COVID-19, to confer on his guardian a specific function, which empowered the guardian to take intrusive steps in order to reduce the COVID-19 related risk to the person. The “new function” conferred by the NCAT is set out in its order (at [3]).
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Image credit: Fusion Medical Animation
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