Guardianship Reforms 1 September 2024 - Transition Period
Guardianship reforms – the transition period
Like most major legislative reforms, the amendments to the Guardianship and Administration Act 1995 (the Act) which commence on 1 September 2024 include transitional provisions[1] to deal with timing issues that arise from the reforms.
Orders made before 1 September 2024
The effect of the transitional provisions is that orders made by the Tribunal prior to 1 September 2024 that exist on that date continue to remain in force after 1 September 2024 for the remainder of the term specified in the order. As the wording used in orders will change due to the reforms, a reference to the “functions” of guardianship under an old guardianship order should be read as “personal matters”[2]. A reference in an old administration order to the person’s “estate”, can be read as the person’s “financial matters”[3].
Applications made before 1 September 2024
Any applications filed with the Tribunal before 1 September 2024 must be dealt with under the old Act before the reforms commenced[4]. That is, even if the hearing to determine the application is held after 1 September 2024, so long as the application was filed before 1 September 2024, the Tribunal must apply the old law as if the reforms had not commenced. Whilst the Tribunal is required to conduct a hearing within 45 days of receiving an application, on occasion, the Tribunal may need to adjourn proceedings to a later date. As a result, it is likely that the Tribunal will be conducting hearings under the old law for several months after 1 September 2024. The current application forms available on the TASCAT website should be used up until 1 September 2024. The Tribunal will release the new application forms that comply with the new legislation on 30 August 2024.
The transition period: 1 September 2024 to 31 October 2024
The transitional provisions provide that the Tribunal may accept old applications that do not comply with the reforms for a period of 2 months after the reforms commence[5]. Whether old applications are accepted during this period is in the discretion of the Tribunal. The Tribunal may decide to not accept an old application and require a new application that complies with the reforms be filed. Given the objects and principles of the reforms, the Tribunal strongly encourages applicants to commence using the new application forms from 1 September 2024. If the Tribunal accepts an old application then the old laws will apply to that application at the hearing[6]. From 1 November onwards the Tribunal cannot accept old applications.
Health Care Professional Reports/Health Practitioner Reports
Under both the old and new law a Health Care Professional Report is required to accompany an application. New reports which are now called Health Practitioner Reports under the Act, have been prepared to comply with the reforms and were released through a news item on 6 August 2024. Wherever possible, for applications filed before 1 September 2024, the current report should be used. If the application will most likely be filed after 1 September 2024 then the new Health Practitioner Report should be used. Whilst the Tribunal may accept an old report during the 2 month transition period (see above), it will require the new report Health Practitioner Report for applications filed from 1 November 2024.
[1] S 90BA of the Guardianship and Administration Act 1995 (the Act) inserted by s 66 of the Guardianship And Administration Act 2023 (the Amendment Act)
[2] S 90BA(2)(b) of the Act
[3] S 90BA(2)(c) of the Act
[4] S 90BA(4) of the Act
[5] S 90BA(5) of the Act
[6] S 90BA(6)