ADVANCE PERSONAL PLANNING ACT 2013

NORTHERN TERRITORY OF AUSTRALIA ADVANCE PERSONAL PLANNING ACT 2013 As in force at 1 July 2024 Table of provisions Part 1 Preliminary matters 1 Short title ......................................................................................... 1 2 Commencement .............................................................................. 1 3 Definitions ........................................................................................ 1 4 Meaning of planning capacity .......................................................... 3 5 Meaning of reasonably believes ...................................................... 3 6 Meaning of decision-making capacity .............................................. 4 6A Meaning of impaired decision-making capacity ............................... 4 6B Health Care Decision Making Act 2023 ........................................... 5 7 Application of Criminal Code ........................................................... 6 Part 2 Advance personal plans 8 Adult may make advance personal plan .......................................... 6 9 Form of advance personal plan ....................................................... 6 10 Advance personal plan to be signed and witnessed ........................ 7 11 Duration of advance personal plan .................................................. 8 12 Amendment or revocation by adult .................................................. 8 13 Non-compliance with formal requirements....................................... 8 14 Multiple advance personal plans ..................................................... 9 Part 3 Decision makers Division 1 Appointments 15 Who can be appointed as a decision maker .................................... 9 16 Appointment of decision maker for matters ................................... 10 17 Appointment options for decision makers ...................................... 10 18 Restrictions, requirements and directions ...................................... 11 19 When appointment of decision maker ceases ............................... 11 Division 2 Authority of decision makers 20 Authority of decision maker ........................................................... 12 21 Exercise of authority by decision maker ........................................ 12 22 Decision making principles ............................................................ 13 23 Exemptions .................................................................................... 15 24 Excluded matters ........................................................................... 16 26 Effect of exercise of authority by decision maker........................... 16 27 Decision maker unaware of entitlement to act or not ..................... 16 -- 1 of 52 -- Advance Personal Planning Act 2013 ii Division 3 Specific powers and duties of decision makers 28 Right to documents and information .............................................. 17 29 Information and things may be given to decision maker ................ 18 30 Record keeping and reporting requirements.................................. 18 31 Property to be managed as if trust property................................... 19 32 Gifts ............................................................................................... 20 33 Maintenance of dependants .......................................................... 20 34 Transfer when person ceases to be decision maker ..................... 21 Division 4 Reimbursement and remuneration 35 Reimbursement of expenses ......................................................... 21 36 Remuneration for professional decision maker.............................. 22 37 Reimbursement and remuneration for other services provided by decision maker to represented adult ......................................... 22 Part 4 Consent to health care action 38 Scope of consent decisions ........................................................... 23 39 When statement in advance personal plan constitutes advance consent decision ............................................................. 23 Part 4A Dealings in relation to land Division 1 Dealings by decision makers 55A Advance personal plan must be registered.................................... 24 Division 2 Advance Personal Plans (Part 4A) Register 55B Advance Personal Planning (Part 4A) Register ............................. 25 55C Registration of advance personal plans......................................... 26 55D Fees .............................................................................................. 26 Part 5 Civil and Administrative Tribunal Division 1 Preliminary matters 55E Definitions ...................................................................................... 26 Division 1A Jurisdiction of Tribunal 56 Jurisdiction of Tribunal ................................................................... 27 57 Tribunal to act in accordance with decision-making principles ...... 27 58 Declarations as to validity, status, powers etc. .............................. 27 59 Orders to decision makers ............................................................. 28 60 Orders to former decision maker ................................................... 28 -- 2 of 52 -- Advance Personal Planning Act 2013 iii 61 Tribunal may amend or revoke advance personal plan ................. 29 62 Tribunal to endorse cessation of decision maker........................... 30 Division 2 Procedure for Tribunal 66 How proceeding to be commenced ............................................... 31 67 Parties ........................................................................................... 31 69 Tribunal proceedings to be private ................................................ 31 69A Reasons may be given orally......................................................... 32 70 Reporting on proceedings relating to Part 4 .................................. 32 Part 6 Enforcement Division 1 Investigations 75 Requirement to provide information, produce documents etc........ 33 Division 2 Offences 76 Falsely representing to be decision maker .................................... 34 77 Improper inducement in relation to advance personal plan ........... 34 78 Improper exercise of authority by decision maker ......................... 35 79 Inducing decision maker to exercise authority improperly ............. 36 80 Misleading information ................................................................... 36 Division 3 Criminal liability for offences 81 Alternative verdicts ........................................................................ 38 Division 4 Consequences of finding of guilt 82 Termination of appointment as decision maker and disqualification ............................................................................... 38 83 Payment of compensation to represented adult ............................ 39 Division 5 Legal proceedings 84 Commencement of prosecution ..................................................... 39 85 When prosecution to be started ..................................................... 39 Part 7 Miscellaneous matters 86 Approved forms ............................................................................. 40 87 Advance Personal Plans (General) Register ................................. 40 88 Recognition of interstate documents ............................................. 40 89 Other rights not affected ................................................................ 41 90 Regulations.................................................................................... 41 -- 3 of 52 -- Advance Personal Planning Act 2013 iv Part 8 Repeals and transitional matters Division 1 Repeals 91 Natural Death Act 1988 repealed .................................................. 41 Division 2 Transitional matters for Advance Personal Planning Act 2013 92 Continuation of directions under Natural Death Act 1988 .............. 42 Division 3 Transitional matters for Advance Personal Planning Amendment Act 2016 93 Definitions ...................................................................................... 42 94 Appeals to Supreme Court ............................................................ 42 95 Applications to Local Court ............................................................ 43 96 Offence provisions – before and after commencement ................. 43 Division 4 Transitional matters for Health Care Decision Making Act 2023 97 Consent decision about health care .............................................. 44 ENDNOTES -- 4 of 52 -- NORTHERN TERRITORY OF AUSTRALIA ____________________ As in force at 1 July 2024 ____________________ ADVANCE PERSONAL PLANNING ACT 2013 An Act to enable people to make plans about how decisions are to be made for them if they have impaired decision-making capacity, and for related purposes Part 1 Preliminary matters 1 Short title This Act may be cited as the Advance Personal Planning Act 2013. 2 Commencement This Act commences on the day fixed by the Administrator by Gazette notice. 3 Definitions In this Act: adult guardian means a guardian under the Guardianship of Adults Act 2016. advance care statement means a statement set out in an advance personal plan as mentioned in section 8(1)(b). advance consent decision means a consent decision about health care action set out in an advance personal plan as mentioned in section 8(1)(a). advance personal plan, see section 8. Advance Personal Planning (Part 4A) Register, see section 55B. affected adult means: (a) if the proceeding relates to an advance personal plan – the adult who made the plan; or -- 5 of 52 -- Part 1 Preliminary matters Advance Personal Planning Act 2013 2 (b) if the proceeding relates to a represented adult – the represented adult; or (c) if the proceeding relates to a consent decision about health care action for an adult – that adult; or (d) for other proceeding – the adult to whom the proceeding relates. agent, for an adult, means a decision maker, adult guardian or enduring attorney for the adult or other person who has lawful authority to manage the adult's affairs. available consenter, see section 42(1)(b). best interests, for an adult, see section 22(6A) and (7). consent decision, about health care action, means a decision to give or refuse consent for the taking of the health care action. decision maker means a person appointed by an adult in an advance personal plan as mentioned in section 8(1)(c). decision-making capacity, see section 6(1). decision-making principles, see section 22(1). enduring attorney means the donee of an enduring power of attorney under Part III of the Powers of Attorney Act 1980. financial management power, for a decision maker, means authority to make decisions in relation to the management of all or part of the represented adult's property and financial affairs. health care, see section 6 of the Health Care Decision Making Act 2023. health care action, for an adult, means commencing, continuing, withholding or withdrawing health care for the adult. health care provider, see section 4 of the Health Care Decision Making Act 2023. impaired decision-making capacity, see section 6A. interested person, for an adult, means one of the following: (a) a decision maker for the adult; (b) an adult guardian for the adult; -- 6 of 52 -- Part 1 Preliminary matters Advance Personal Planning Act 2013 3 (d) enduring attorney for the adult; (e) a health care provider for the adult; (f) the Chief Executive Officer; (g) the Public Guardian; (h) the Public Trustee; (i) another person who has a genuine and sufficient interest in protecting the adult's best interests. planning capacity, see section 4. proceeding, for Part 5, see section 55E. Public Guardian, see section 3 of the Guardianship of Adults Act 2016. Public Trustee, see section 5 of the Public Trustee Act 1979. reasonably believes, see section 5(1). registered, for Part 4A, means registered in the Advance Personal Planning (Part 4A) Register. represented adult means an adult who has made an advance personal plan that is in force and appoints a decision maker. Tribunal means the Civil and Administrative Tribunal. Tribunal Act, for Part 5, see section 55E. 4 Meaning of planning capacity An adult has planning capacity if the adult: (a) has decision-making capacity for making an advance personal plan; and (b) does not have an adult guardian. 5 Meaning of reasonably believes (1) A person reasonably believes something at a particular time if the person has grounds at the time for believing that thing and those grounds, when judged objectively, are reasonable. (2) The reasonableness of the belief is not affected by the grounds subsequently being found to be false or non-existent. -- 7 of 52 -- Part 1 Preliminary matters Advance Personal Planning Act 2013 4 6 Meaning of decision-making capacity (1) An adult has decision-making capacity for a matter if the adult does not have impaired decision-making capacity for the matter. (2) An adult is presumed to have decision-making capacity for a matter until the contrary is shown. 6A Meaning of impaired decision-making capacity (1) An adult has impaired decision-making capacity in relation to a matter if the adult's capacity to make a decision in relation to the matter is impaired. (2) An impairment in any of the following is relevant in determining whether an adult's capacity to make a decision is impaired: (a) understanding and retaining information relevant to the decision; (b) weighing information relevant to the decision in order to make the decision; (c) communicating the decision in some way; (d) understanding the effect of the decision. (3) For subsection (2)(a), an adult is taken to understand information relevant to a decision if the adult understands an explanation of the information given to the adult in a way that is appropriate to the adult's circumstances, whether by using modified language, visual aids or other means. (4) For subsection (2)(c), an adult is taken to communicate a decision if the adult communicates the decision in a way that is appropriate to the adult's circumstances, whether by using modified language, visual aids or other means. (5) An adult may have impaired decision-making capacity in relation to some matters and not others. (6) The degree to which an adult has impaired decision-making capacity may vary over time. (7) The cause of the impairment of the decision-making capacity is immaterial. -- 8 of 52 -- Part 1 Preliminary matters Advance Personal Planning Act 2013 5 (8) An adult does not have impaired decision-making capacity merely because the adult: (a) has a disability, illness or other medical condition, whether physical or mental; or (b) requires the use of practicable and appropriate support, including additional time for explanation, modified language, visual or technological aids or other means of communication; or (c) engages in unconventional behaviour or another form of personal expression; or (d) chooses a living environment or lifestyle with which other people do not agree; or (e) makes decisions with which other people do not agree; or (f) does not have a particular level of fluency in English; or (g) does not have a particular level of literacy or education; or (h) engages in particular cultural or religious practices; or (i) does or does not express a particular religious, political or moral opinion; or (j) is of a particular sexual orientation or gender identity or expresses particular sexual preferences; or (k) takes or took, or is or was dependent on, alcohol or drugs, unless the alcohol or drugs are causing actual impairment in relation to the decision; or (l) engages or engaged in illegal or immoral conduct. Examples for subsection (8)(b) 1 Using information or formats tailored to the particular needs of the adult. 2 Communicating or assisting a person to communicate the adult's decision. 3 Giving a person additional time and discussing the matter with the adult. 4 Using technology that alleviates the effects of the adult's disability. 6B Health Care Decision Making Act 2023 This Act is subject to the Health Care Decision Making Act 2023 and if a provision of this Act is inconsistent with that Act, that Act prevails to the extent of the inconsistency. -- 9 of 52 -- Part 2 Advance personal plans Advance Personal Planning Act 2013 6 7 Application of Criminal Code Part IIAA of the Criminal Code applies to an offence against this Act. Note for section 7 Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences. Part 2 Advance personal plans 8 Adult may make advance personal plan (1) An adult who has planning capacity may, by making an advance personal plan, do one or more of the following: (a) make consent decisions about future health care action for the adult (advance consent decisions); (b) set out the adult's views, wishes and beliefs as the basis on which the adult wants anyone to act if they make decisions for the adult (advance care statements); (c) appoint one or more persons to make decisions for the adult if the adult has impaired decision-making capacity (decision makers). (2) The decisions mentioned in subsection (1)(b) and (c) may be about all or any aspect of the adult's care and welfare (including health care) and property and financial affairs. 9 Form of advance personal plan (1) An advance personal plan must be made in the form approved under section 86(1) if: (a) the plan includes the appointment of a decision maker who is to have any financial management powers; or (b) use of the approved form is required by regulation. (2) Any other advance personal plan must be made: (a) in the form approved under section 86(1); or (b) in writing and in accordance with any requirements prescribed by regulation. -- 10 of 52 -- Part 2 Advance personal plans Advance Personal Planning Act 2013 7 10 Advance personal plan to be signed and witnessed (1) An advance personal plan must be signed: (a) by the adult making it; or (b) if the adult is unable to sign – by a person (a representative) acting on the direction, and in the presence of, the adult. (2) The plan must be signed in the presence of an authorised witness. (3) The witness must certify in the advance personal plan that: (a) the witness reasonably believes that the adult making the plan: (i) is who he or she purports to be; and (ii) is at least 18 years of age; and (b) it appears to the witness that: (i) the adult understands the nature and effect of the advance personal plan; and (ii) in making the plan the adult is acting voluntarily without coercion or other undue influence; and (c) the plan was signed: (i) by the adult making it or a representative in accordance with subsection (1); and (ii) in the presence of the witness. (4) A person acting as a representative: (a) must be is at least 18 years of age; and (b) must not be, or be being appointed by the plan as, a decision maker for the adult. (5) In this section: authorised witness means: (a) a person who is authorised under the Oaths, Affidavits and Declarations Act 2010 to administer an oath; or (b) a person prescribed by regulation to be an authorised witness. -- 11 of 52 -- Part 2 Advance personal plans Advance Personal Planning Act 2013 8 11 Duration of advance personal plan An advance personal plan: (a) comes into force when it is made; and (b) remains in force until one of the following occurs: (i) if the advance personal plan is expressed to be for a limited period – that period ends; (ii) the advance personal plan is revoked by the adult who made it or the Tribunal; (iii) if the advance personal plan appoints a decision maker but does not include any advance consent decisions or advance care statements – the person appointed as decision maker, or if 2 or more persons are appointed the last of them, ceases to be a decision maker under section 19; (iv) the adult who made the advance personal plan dies. 12 Amendment or revocation by adult (1) An adult who has made an advance personal plan may amend or revoke it at any time if he or she has planning capacity. (2) An amendment must be made in accordance with sections 9 and 10 as if it were an advance personal plan. Note for section 12 The Tribunal has power to amend or revoke an advance personal plan in some circumstances (see section 61). 13 Non-compliance with formal requirements (1) This section applies if an adult attempts to make or amend an advance personal plan but the plan or amendment is not made in accordance with sections 9 and 10. (2) The attempt: (a) does not have effect to make or amend an advance personal plan; but (b) may constitute a statement of the adult's views and wishes that may be taken into account by an agent or other person acting for the adult. -- 12 of 52 -- Part 3 Decision makers Division 1 Appointments Advance Personal Planning Act 2013 9 (3) However, if the Tribunal is satisfied that the adult's intention to make or amend an advance personal plan is sufficiently clear, it may declare the attempt to be effective to create a valid advance personal plan or amendment despite the non-compliance with those sections. Note for section 13 This section does not affect section 68 of the Interpretation Act 1978, which provides that substantial compliance with an approved form is sufficient. 14 Multiple advance personal plans (1) An adult may make as many advance personal plans as he or she wishes. (2) If an adult has made 2 advance personal plans that are inconsistent, the most recently made plan prevails to the extent of the inconsistency. (3) The fact that an adult, by making 2 advance personal plans, appoints 2 decision makers for the same matter does not, by itself, constitute an inconsistency between the plans. Note for section 14 If there is an inconsistency within a plan, or between 2 plans made at the same time, the Tribunal may make a declaration about the effect or meaning of the plan or plans under section 58(g) or an order under section 59 if the inconsistency relates to decision makers. Part 3 Decision makers Division 1 Appointments 15 Who can be appointed as a decision maker (1) An adult making an advance personal plan may appoint as a decision maker: (a) an individual who is at least 18 years of age; or (b) a licensed trustee company (as defined in section 601RAA of the Corporations Act 2001); or (c) the Public Trustee; or (d) the Public Guardian. (2) Despite subsection (1)(a), the adult may appoint an individual who is under 18 years of age to become a decision maker when the individual turns 18. -- 13 of 52 -- Part 3 Decision makers Division 1 Appointments Advance Personal Planning Act 2013 10 (3) The appointment of individual who is under 18 years of age, has no effect until the individual turns 18. 16 Appointment of decision maker for matters (1) An adult may appoint a decision maker for one or more, or all, matters relating to the adult's: (a) care or welfare (including health care); or (b) property or financial affairs. (2) If an adult appoints a decision maker but does not identify the matter or matters for which the decision maker is appointed, the decision maker is appointed for all matters. Examples for section 16 The following are examples of matters for which a decision maker may be appointed: (a) accommodation; (b) day-to-day living matters, such as diet and dress; (c) health care; (d) the provision of care services to the adult; (e) relationships with other people, including intimate or sexual relationships; (f) the carrying out of a forensic procedure (such as those mentioned in the definition of that term in section 4 of Police Administration Act 1978) in relation to an adult; (g) employment; (h) education and training; (i) banking; (j) receipt and payment of money; (k) property (including real estate) ownership; (l) management of assets; (m) carrying on a trade or business; (n) holding a licence or permit; (o) insurance for an adult or his or her property; (p) legal matters (other than as mentioned in section 24(1)(e)). 17 Appointment options for decision makers (1) An adult may appoint a decision maker to act: (a) at all times; or (b) only in stated circumstances; or -- 14 of 52 -- Part 3 Decision makers Division 1 Appointments Advance Personal Planning Act 2013 11 (c) at all times except in stated circumstances. Examples for subsection (1)(b) and (c) 1 An adult may appoint his wife while she is alive and then his son while he is alive and then his 2 grandchildren jointly. 2 An adult who lives part of the time with her son and part of the time with her daughter might appoint her son for times she is living with him and her daughter for times when she is living with her. 3 An adult who has a son who travels in remote areas and is sometimes out of contact might appoint her son as a primary decision maker and her friend as a secondary decision maker for the times when the son cannot be contacted. (2) An adult may appoint one decision maker, or 2 or more decision makers, for a matter or matters. (3) If the adult appoints 2 or more decision makers for a matter, they may be appointed to exercise their authority jointly, severally or jointly and severally. 18 Restrictions, requirements and directions An adult appointing a decision maker may, in the advance personal plan, do one or more of the following: (a) impose restrictions on the decision maker's authority; (b) impose requirements to be complied with by the decision maker in relation to the exercise of the decision maker's authority; (c) give directions to the decision maker about the exercise by the decision maker of the decision maker's authority. 19 When appointment of decision maker ceases (1) A person (person A) ceases to be a decision maker when one of the following occurs: (a) person A, being an individual, dies; (b) person A resigns by giving written notice to: (i) if the represented adult has planning capacity – the represented adult; or (ii) if the represented adult does not have planning capacity but has appointed another person (person B) who, on person A's resignation, would be a decision maker for the adult with authority for all matters for which person A has authority – person B; or -- 15 of 52 -- Part 3 Decision makers Division 2 Authority of decision makers Advance Personal Planning Act 2013 12 (iii) otherwise – the Public Guardian; (c) if person A's appointment as a decision maker is expressed to be for a limited period – that period ends; (d) the advance personal plan by which person A was appointed: (i) ceases to be in force; or (ii) is amended so as to terminate person A's appointment. (2) If a person resigns under subsection (1)(b) the person must give a copy of the resignation notice to each other agent for the adult of whom the person is aware. (3) A notice for subsection (1)(b)(iii) must be accompanied by: (a) a copy of the advance personal plan by which the person was appointed; and (b) any information prescribed by regulation. Division 2 Authority of decision makers 20 Authority of decision maker (1) A decision maker for a matter has authority to do anything in relation to the matter that the represented adult could lawfully do if he or she had full legal capacity. (2) However, the decision maker may exercise that authority only when the represented adult has impaired decision-making capacity for the matter. (3) The decision maker's authority is subject to: (a) this Act; and (b) the Health Care Decision Making Act 2023; and (c) the terms of the advance personal plan by which the decision maker was appointed. 21 Exercise of authority by decision maker (1) In exercising the decision maker's authority, the decision maker must: (a) act in accordance with the decision-making principles; and -- 16 of 52 -- Part 3 Decision makers Division 2 Authority of decision makers Advance Personal Planning Act 2013 13 (b) comply with: (i) any restrictions, requirements or directions of the kind mentioned in section 18 that are in the advance personal plan by which the decision maker was appointed; and (ii) any order made by the Tribunal under section 59; and (iii) this Act and the Health Care Decision Making Act 2023; and (c) cooperate with any other agents for the represented adult to enable them all to properly exercise their authority; and (d) act honestly and with care, skill and diligence. (2) If 2 or more decision makers are appointed to exercise their authority for a matter jointly, they must exercise their authority unanimously. Note for subsection (2) If the decision makers are unable to reach a unanimous decision, they may seek an order from the Tribunal under section 59(2)(b). 22 Decision making principles (1) This section governs the exercise of authority of a decision maker under this Act. (2) Subject to section 23(2), the decision maker must give effect to any advance care statement made by the person. (3) If no advance care statement was made about the matter, the decision maker must exercise authority under this Act in the way that the decision maker believes on reasonable grounds the person would do in the circumstances. (4) In determining what the person would do in the circumstances, the decision maker must take into account: (a) the person's current and previously stated decisions, views, wishes and objections about the matter; and (b) the decision maker's personal knowledge of the person. (5) If a decision maker forms a belief on reasonable grounds regarding what the person would do in the circumstances, the decision maker must exercise authority in that way, even if doing so may not be in the person's best interests. -- 17 of 52 -- Part 3 Decision makers Division 2 Authority of decision makers Advance Personal Planning Act 2013 14 (6) Subsection (5) does not require giving the person addictive substances, without therapeutic benefit, that the person would use if the person had legal capacity. (7) If a decision maker is unable to form a belief on reasonable grounds regarding what the person would do in the circumstances, the decision maker must exercise authority in the way that the decision maker believes on reasonable grounds is in the best interests of the person. (8) For subsection (7), in determining what is in the best interests of the person, the decision maker must: (a) take into account all relevant considerations; and (b) assess those considerations by giving each of them the weight the decision maker believes on reasonable grounds is appropriate in the circumstances. (9) Without limiting subsection (8)(a), relevant considerations regarding the person include the following: (a) protecting the person from harm, neglect, abuse and exploitation; (b) providing the person with appropriate care; (c) promoting the person's happiness, enjoyment of life and wellbeing; (d) protecting the person's freedom of decision and action; (e) enabling the person to be as independent as practicable; (f) enabling the person to achieve the person's maximum physical, social, emotional and intellectual potential; (g) enabling the person to live in the general community and take part in community activities; (h) maintaining the person's right to be treated with dignity and respect; (i) enabling the person to maintain the person's preferred living environment and lifestyle; (j) maintaining or creating a positive support network for the person; -- 18 of 52 -- Part 3 Decision makers Division 2 Authority of decision makers Advance Personal Planning Act 2013 15 (k) protecting the person's property and financial resources from loss, damage and misuse; (l) protecting the person's right to keep the person's information confidential. (10) In determining what is appropriate in the circumstances under subsection (8)(b), the decision maker must exercise authority in a way that: (a) is the least restrictive of the person's freedom of decision and action as is practicable; and (b) provides the person with as much support as is practicable to make the person's own health care decisions. 23 Exemptions (1) A decision maker is not required to comply with section 22(2) if: (a) the person made a subsequent written declaration stating that the person does not want to give effect to the advance care statement, at a time when the person did not have impaired decision making capacity to make a decision on the matter; or (b) there is no reasonable possibility the person would have intended the statement to apply in the circumstances. (2) A decision maker is not required to comply with section 22(2) or (3) if compliance would: (a) be impracticable; or (b) be unlawful; or (c) impose a burden on another person that is so unreasonably onerous that it is justifiable to override the person's wishes; or (d) be so unreasonable that it is justifiable to override the person's wishes. (3) A decision maker must keep a written record of the reasons for not complying with section 22(2) or (3) if the decision maker relies on subsection (1) or (2). -- 19 of 52 -- Part 3 Decision makers Division 2 Authority of decision makers Advance Personal Planning Act 2013 16 24 Excluded matters (1) Despite section 20, a decision maker is not authorised to do any of the following for the represented adult: (a) exercise the adult's right to vote in a Commonwealth, Territory or local government election or referendum; (b) consent to the adoption of a child of the adult; (ba) make or give effect to a decision about the adult entering into a surrogacy arrangement as defined in section 3 of the Surrogacy Act 2022; (c) consent to the marriage, or dissolution of the marriage, of the adult; (d) make, vary or revoke the following for the adult: (i) a will; (ii) a power of attorney; (iii) an advance personal plan, or anything (by whatever name) having a similar effect in another jurisdiction; (e) exercise the adult's rights as an accused person in relation to a criminal investigation or criminal proceedings, including under Part 10 of the Mental Health and Related Services Act 1998. (2) This section applies despite anything else in this Act and regardless of the terms of the advance personal plan by which the decision maker was appointed. 26 Effect of exercise of authority by decision maker An act done or omission made by a decision maker in the exercise of the decision maker's authority has effect as if it were done or made by the represented adult and he or she had full legal capacity. 27 Decision maker unaware of entitlement to act or not (1) If: (a) a decision maker purports to exercise authority for a matter in good faith and reasonably believing that circumstances exist that entitle the decision maker to do so; and (b) those circumstances do not in fact exist; -- 20 of 52 -- Part 3 Decision makers Division 3 Specific powers and duties of decision makers Advance Personal Planning Act 2013 17 anything done by the decision maker in the purported exercise of the authority has effect, and the decision maker is liable to the same extent, as if the circumstances had existed. (2) If: (a) a decision maker has authority for a matter; and (b) circumstances exist in which the decision maker is entitled to exercise that authority; and (c) the decision maker is unaware, and could not reasonably have been expected to be aware, of the existence of those circumstances; the decision maker is not liable for a failure to exercise the authority. Example for section 27 A circumstance that would affect the decision maker's entitlement to exercise authority is whether or not the represented adult had impaired decision-making capacity for the matter. Division 3 Specific powers and duties of decision makers 28 Right to documents and information (1) A decision maker for a matter: (a) has the same right to documents and information relevant to the exercise of the decision maker's authority in relation to that matter as the represented adult would have if he or she had full legal capacity; and (b) has a right to documents and information of the represented adult that are relevant to the exercise of the decision maker's authority in relation to that matter. (2) A person who has custody or control of a document or information that is relevant to the exercise of a decision maker's authority (an information holder) must give it to the decision maker if requested by the decision maker to do so, unless the information holder has a reasonable excuse not to do so. (3) If the information holder does not comply with the request, the Tribunal may order the information holder to give the documents or information to the decision maker. -- 21 of 52 -- Part 3 Decision makers Division 3 Specific powers and duties of decision makers Advance Personal Planning Act 2013 18 (5) An information holder who gives information under this section in good faith is not civilly or criminally liable, or in breach of a professional code of conduct, for doing so. 29 Information and things may be given to decision maker (1) This section applies if: (a) a person is required by a law of the Territory (the other law) to give information or a thing to a represented adult; and (b) the information or thing relates to a matter for which the adult has impaired decision-making capacity; and (c) a decision maker has authority for the matter. (2) The person required to give the information or thing may give it to the decision maker instead of giving it to the represented adult. (3) A person who gives information or a thing to the decision maker under this section in good faith: (a) is taken to have complied with the requirement in the other law to give it to the represented adult; and (b) is not civilly or criminally liable, or in breach of a professional code of conduct, for giving it to the decision maker. (4) This section does not apply in relation to a document that the other law requires to be personally served on the represented adult. 30 Record keeping and reporting requirements (1) A decision maker must: (a) keep the records in relation to the exercise of the decision maker's authority that it would be reasonable in the circumstances to keep; and (b) comply with any record keeping and reporting requirements prescribed by regulation. (2) Without limiting what may be provided for in regulations, a regulation may provide for one or more of the following: (a) keeping of records; (b) preparation of annual or other reports; (c) auditing or other verification of records and reports; -- 22 of 52 -- Part 3 Decision makers Division 3 Specific powers and duties of decision makers Advance Personal Planning Act 2013 19 (d) the form of records or reports; (e) who must or may be given copies of, or access to, records or reports. 31 Property to be managed as if trust property (1) A decision maker who has financial management powers: (a) must deal with the represented adult's property as if it were trust property held by the decision maker on trust for the represented adult; and (b) in dealing with the property, is subject to the duties, obligations and limitations that apply under a law of the Territory to a trustee dealing with trust property. Note for subsection (1) The decision maker's power to deal with the property stems from section 20(1). This section limits that power by requiring the decision maker to deal with the property as if it were trust property. However, this section does not constitute a trust nor cause the property to vest in the decision maker. (2) However, the decision maker may deal with property other than in accordance with subsection (1) if: (a) permitted to do so by a provision of this Act; or (b) authorised to do so: (i) by the represented adult in the advance personal plan by which the decision maker was appointed; or (ii) by the Tribunal by order under section 59(2)(c). (3) Subsection (1) does not prevent the continuation of joint ownership of property by the represented adult and the decision maker (whether as joint tenants or tenants in common) if the joint ownership commenced: (a) before the decision maker was appointed; or (b) after the appointment but while the represented adult had decision-making capacity for the matter. (4) Despite subsection (1)(b), section 24A of the Trustees Act 1893 does not apply in relation to property that is being dealt with under this section as if it were trust property. -- 23 of 52 -- Part 3 Decision makers Division 3 Specific powers and duties of decision makers Advance Personal Planning Act 2013 20 32 Gifts (1) A decision maker who has financial management powers may make a gift from the represented adult's property if: (a) the gift is of a kind the represented adult: (i) made when he or she had decision-making capacity for the matter; or (ii) might reasonably be expected to make; and (b) the value of the gift is reasonable in the circumstances. (2) However, the represented adult may, in the advance personal plan that appoints the decision maker: (a) restrict the decision maker's authority to make gifts; or (b) authorise the decision maker to make a gift not otherwise permitted by this section. (3) Further, the Tribunal may, by order under section 59(2)(c), authorise the decision maker to make a gift not otherwise permitted by this section. (4) Despite subsection (1), the decision maker must not make a gift from the represented adult's property to the decision maker unless specifically authorised to do so under subsection (2)(b) or (3). 33 Maintenance of dependants (1) A decision maker who has financial management powers may provide from the represented adult's property for the needs of a dependant of the represented adult if: (a) the provision is of a kind the represented adult: (i) made when he or she had decision-making capacity for the matter; or (ii) might reasonably be expected to make; and (b) the value of the provision is reasonable in the circumstances. (2) However, the represented adult may, in the advance personal plan that appoints the decision maker: (a) restrict the decision maker's authority to provide for the needs of dependants; or -- 24 of 52 -- Part 3 Decision makers Division 4 Reimbursement and remuneration Advance Personal Planning Act 2013 21 (b) authorise the decision maker to make provision for the needs of a dependant that is not otherwise permitted by subsection (1). (3) Further, the Tribunal may, by order under section 59(2)(c), authorise the decision maker to make provision for the needs of a dependant that is not otherwise permitted by subsection (1). (4) Despite subsection (1), if the decision maker is a dependant of the represented adult, the decision maker must not make provision from the represented adult's property for the decision maker's own needs unless specifically authorised to do so under subsection (2)(b) or (3). 34 Transfer when person ceases to be decision maker A person who ceases to be a decision maker for an adult must take all reasonable steps to provide for: (a) if the represented adult is still alive – the orderly transfer of decision-making authority from the person to the represented adult or to another agent for the adult (as appropriate); or (b) if the represented adult has died – the orderly transfer of the adult's estate to the executor or administrator of the estate. Division 4 Reimbursement and remuneration 35 Reimbursement of expenses (1) A decision maker is entitled to reimbursement from the represented adult for reasonable costs incurred in acting as decision maker: (a) as authorised in the advance personal plan by which the decision maker was appointed; or (b) as approved by the Tribunal by order under section 59(2)(d). (2) The Tribunal's approval may be given for a particular expense, for expenses up to a specified amount, for expenses generally, or otherwise as the Tribunal considers appropriate. (3) However, the Tribunal must not approve reimbursement of expenses contrary to an express provision in the advance personal plan. Note for section 35 This section applies only to costs incurred by the decision maker in the person's capacity as decision maker. For reimbursement of expenses incurred in providing other services, see section 37. -- 25 of 52 -- Part 3 Decision makers Division 4 Reimbursement and remuneration Advance Personal Planning Act 2013 22 36 Remuneration for professional decision maker (1) A professional decision maker is entitled to reasonable remuneration from the represented adult: (a) as authorised in the advance personal plan by which the decision maker was appointed; or (b) as approved by the Tribunal by order under section 59(2)(d). (2) However, the Tribunal must not approve payment of remuneration contrary to an express provision in the advance personal plan. (3) This section does not affect any right of the Public Trustee or a trustee company to remuneration or commission under another Act or the Corporations Act 2001. (4) In this section: professional decision maker means one of the following: (a) the Public Trustee; (b) the Public Guardian; (c) a licensed trustee company (as defined in section 601RAA of the Corporations Act 2001); (d) another person who carries on the business of, or including, providing services as a decision maker. Note for section 36 This section applies only to remuneration for services provided by the decision maker in the person's capacity as decision maker. For remuneration for providing other services, see section 37. 37 Reimbursement and remuneration for other services provided by decision maker to represented adult (1) This section applies if a person who is a decision maker also provides other services to the represented adult. (2) The person is not entitled to either of the following from the represented adult unless approved under subsection (3): (a) reimbursement for costs incurred in providing the other services; (b) remuneration for providing the other services. -- 26 of 52 -- Part 4 Consent to health care action Advance Personal Planning Act 2013 23 (3) Approval for reimbursement or remuneration may be given: (a) by the represented adult in the advance personal plan by which the decision maker was appointed; or (b) by the Tribunal by order under section 59(2)(d). (4) The Tribunal must not give approval unless satisfied that: (a) it is reasonable in the circumstances for the person who is the decision maker to also provide the other services; and (b) the amount to be paid is reasonable. (5) In this section: provide other services, to a represented adult, includes to act as a carer for the represented adult. Part 4 Consent to health care action 38 Scope of consent decisions A consent decision about health care action: (a) may be made in relation to health care to be provided in a particular instance or a course of health care to be provided over a period of time; and (b) may be made about one or more particular health care actions or generally about all health care action; and (c) may be made so as to apply: (i) in all circumstances; or (ii) only in stated circumstances; or (iii) in all circumstances except in stated circumstances. 39 When statement in advance personal plan constitutes advance consent decision (1) A statement in an advance personal plan about health care action may be: (a) an advance consent decision (as mentioned in section 8(1)(a)); or (b) an advance care statement (as mentioned in section 8(1)(b)). -- 27 of 52 -- Part 4A Dealings in relation to land Division 1 Dealings by decision makers Advance Personal Planning Act 2013 24 (2) A statement constitutes an advance consent decision if: (a) it is an express statement of the adult's consent or refusal of consent for the health care action; or (b) it would be reasonable to conclude from the statement that the adult would or would not want the health care action to be taken in the circumstances that exist at the time it is proposed to take the health care action. Examples for subsection (2) 1 A statement that "I do not want to be given a blood transfusion in any circumstances" is a clear statement refusing consent for a blood transfusion. 2 A statement that "If I have a terminal illness and am going to die soon, I do not want to be given treatment just to keep me alive for a little bit longer – just keep me pain free" may constitute consent for a terminally ill person to be given pain relief and for other treatment to be discontinued. (3) A statement that does not constitute an advance consent decision is an advance care statement. Example for subsection (3) A statement that "I want all decisions that are made for me to be made strictly in accordance with my religious belief as a Catholic" would not be an advance consent decision, but would be an advance care statement. Part 4A Dealings in relation to land Division 1 Dealings by decision makers 55A Advance personal plan must be registered (1) A dealing in relation to land purporting to take effect as a result of the exercise of authority by a decision maker is of no effect unless, at the time the authority was purportedly exercised, an advance personal plan conferring authority to enter into the dealing on the decision maker was registered. (2) However, if: (a) at the time the authority was purportedly exercised, an advance personal plan conferring the authority on the decision maker was in force (although not registered); and (b) an advance personal plan conferring that authority on the decision maker is subsequently registered; the dealing takes effect immediately after the plan is registered. -- 28 of 52 -- Part 4A Dealings in relation to land Division 2 Advance Personal Plans (Part 4A) Register Advance Personal Planning Act 2013 25 (3) For the purpose of this section, if an advance personal plan has been registered: (a) the terms of the plan at a particular time are taken to be the terms of the plan when it was first registered as amended by any amendments that have been registered before the time in question; and (b) a person appointed by the plan as a decision maker is taken to continue to be a decision maker until a notice to the contrary is registered as mentioned in section 55C(1)(c); and (c) the plan is taken to remain in force until a notice to the contrary is registered as mentioned in section 55C(1)(d). (4) Subsection (3) does not apply in relation to a person who, at any relevant time, knows that: (a) the advance personal plan has been amended in a material way by an amendment that has not been registered; or (b) a person's appointment as a decision maker under the plan has ceased under section 19(1); or (c) the plan has ceased to be in force under section 11(b). (5) This section does not apply in relation to a dealing in relation to land that is a lease for a period not exceeding 1 year. Division 2 Advance Personal Plans (Part 4A) Register 55B Advance Personal Planning (Part 4A) Register (1) The Registrar-General must establish and maintain a register of advance personal plans under which a decision maker is authorised to enter into dealings in relation to land (the Advance Personal Planning (Part 4A) Register). (2) Subject to the regulations, the Registrar-General may keep the Advance Personal Planning (Part 4A) Register in any form the Registrar-General considers appropriate. (3) Registration of an advance personal plan in the Advance Personal Planning (Part 4A) Register is optional and non registration does not affect the validity or effect of the advance personal plan. Note for subsection (3) While non registration does not affect the validity or effect of the plan, non registration does affect the effectiveness of any dealing in relation to land entered into by the decision maker (see section 55A). -- 29 of 52 -- Part 5 Civil and Administrative Tribunal Division 1 Preliminary matters Advance Personal Planning Act 2013 26 55C Registration of advance personal plans (1) The Registrar-General may register any of the following in the Advance Personal Planning (Part 4A) Register: (a) an advance personal plan under which a decision maker is authorised to enter into a dealing in relation to land for the represented adult; (b) an amendment to a registered advance personal plan; (c) a notice that a person who was a decision maker under a registered advance personal plan has ceased to be a decision maker as mentioned in section 19(1); (d) a notice that a registered advance personal plan has ceased to be in force as mentioned in section 11(b); (e) any other document relating to an advance personal plan: (i) that is prescribed by the regulations; or (ii) that the Registrar-General considers it is appropriate to record in the Advance Personal Planning (Part 4A) Register. (2) An application for registration must be: (a) made in accordance with the regulations; and (b) accompanied by any fee prescribed as mentioned in section 55D. 55D Fees Regulations under the Registration Act 1927 may prescribe fees payable in relation to the Advance Personal Planning (Part 4A) Register. Part 5 Civil and Administrative Tribunal Division 1 Preliminary matters 55E Definitions In this Part: proceeding means a proceeding before the Tribunal in relation to a matter under this Act. -- 30 of 52 -- Part 5 Civil and Administrative Tribunal Division 1A Jurisdiction of Tribunal Advance Personal Planning Act 2013 27 Tribunal Act means the Northern Territory Civil and Administrative Tribunal Act 2014. Division 1A Jurisdiction of Tribunal 56 Jurisdiction of Tribunal (1) The Tribunal has jurisdiction to deal with matters under this Act. (2) The jurisdiction comes within the Tribunal's original jurisdiction. 57 Tribunal to act in accordance with decision-making principles In exercising its jurisdiction in relation to a matter under this Act, the Tribunal must act in accordance with the decision-making principles as if it were a decision maker. 58 Declarations as to validity, status, powers etc. The Tribunal may make a declaration as to one or more of the following: (a) whether an adult has impaired decision-making capacity for a matter; (b) whether an advance personal plan is or is not valid; (c) whether a statement in an advance personal plan about health care action is an advance consent decision or an advance care statement; (d) whether an advance consent decision or advance care statement is or is not applicable in a particular circumstance; (e) whether or not a decision maker has authority for a matter; (f) the scope of the authority of a decision maker; (g) any other matter relating to the validity, effect or meaning of an advance personal plan (including an advance consent decision, advance care statement or appointment in the plan); (h) any other matter relating to the making of a consent decision about health care action for an adult who has impaired decision-making capacity for making the consent decision; (i) any other matter arising for determination under this Act. -- 31 of 52 -- Part 5 Civil and Administrative Tribunal Division 1A Jurisdiction of Tribunal Advance Personal Planning Act 2013 28 59 Orders to decision makers (1) The Tribunal may make orders as to the exercise by a decision maker of the decision maker's authority. (2) Without limiting subsection (1), the Tribunal may make orders as follows: (a) as to how the decision maker may, must, or must not, exercise the decision maker's authority so as to comply with section 21(1); (b) if 2 or more decision makers who are appointed to exercise their authority for a matter jointly are unable to reach a unanimous decision as required by section 21(2) – to facilitate the resolution of their differences; (c) authorising the decision maker to act as mentioned in section 31(2)(b)(ii), 32(3) or 33(3); (d) approving reimbursement or remuneration for the decision maker as mentioned in section 35(1)(b), 36(1)(b) or 37(3)(b); (e) if the represented adult has 2 or more agents – to facilitate a reasonable and workable division of decision-making authority between the agents. (3) The Tribunal must not make an order under subsection (1) requiring or permitting the decision maker to act contrary to an express provision of the advance personal plan by which the decision maker was appointed. (4) The Tribunal may make an order about the exercise of the decision maker's authority generally or for a particular circumstance. 60 Orders to former decision maker (1) This section applies if a person has ceased to be a decision maker for an adult. (2) The Tribunal may make the orders the Tribunal considers appropriate to provide for: (a) if the represented adult is still alive – the orderly transfer of decision-making authority from the person to the represented adult or to another agent for the adult (as appropriate); or (b) if the represented adult has died – the orderly transfer of the adult's estate to the executor or administrator of the estate. -- 32 of 52 -- Part 5 Civil and Administrative Tribunal Division 1A Jurisdiction of Tribunal Advance Personal Planning Act 2013 29 61 Tribunal may amend or revoke advance personal plan (1) This section applies if a person who has made an advance personal plan no longer has planning capacity. (2) There are grounds for amending the advance personal plan if one or more of the following applies: (a) giving effect to the plan is, for all practical purposes, impossible; (b) giving effect to the plan is unlawful; (c) giving effect to the statement would impose a burden on another person that is so unreasonably onerous that it is justifiable to override the adult's wishes; (d) there is no reasonable possibility the adult would have intended the plan to have the effect that it has or will have; (e) giving effect to the plan would be so unreasonable that it is justifiable to override the adult's wishes; (f) when making the plan (or an amendment of it) the adult: (i) was not acting voluntarily; or (ii) was adversely affected by the dishonesty or undue influence of another person; (g) a decision maker appointed by the plan has failed to comply with section 21(1); (h) there has been a major change in circumstances since the plan was made; (i) the adult has 2 or more agents and an amendment of the plan is necessary to facilitate a reasonable and workable division of decision-making authority between the agents. Example for subsection (2)(h) Major changes in circumstances might include the following: (a) a person appointed as decision maker losing decision-making capacity; (b) the adult getting divorced or becoming estranged from other family members; (c) a decision maker being convicted of an offence that makes it unsuitable for him or her to continue to be a decision maker. -- 33 of 52 -- Part 5 Civil and Administrative Tribunal Division 1A Jurisdiction of Tribunal Advance Personal Planning Act 2013 30 (3) The Tribunal may amend the advance personal plan if satisfied that: (a) there are grounds for amending the plan; and (b) the amendment is reasonably necessary to address those grounds; and (c) if the adult had planning capacity, he or she would agree to the amendment. (4) However, the Tribunal may amend the advance personal plan so as to terminate the appointment of a person as a decision maker only if satisfied that doing so is the only practicable way to address the grounds for amendment. (5) The Tribunal may revoke the advance personal plan if satisfied that: (a) there are grounds for amending the plan; and (b) revoking the plan is the only practicable way to address those grounds; and (c) if the adult had planning capacity, he or she would agree to the revocation. 62 Tribunal to endorse cessation of decision maker (1) This section applies if: (a) a person ceases to be a decision maker but the advance personal plan remains in force; and (b) the represented adult no longer has planning capacity. Note for subsection (1) The advance personal plan may remain in force because it also appoints another person as a decision maker or because it also contains advance consent decisions or advance care statements. (2) If the Registrar (as appointed under section 143 of the Tribunal Act) is satisfied that this section applies, the Registrar must endorse on the advance personal plan the fact that the person has ceased to be a decision maker. (3) An application for endorsement may be made by: (a) the represented adult; or (b) the former decision maker; or -- 34 of 52 -- Part 5 Civil and Administrative Tribunal Division 2 Procedure for Tribunal Advance Personal Planning Act 2013 31 (c) an interested person for the represented adult. Division 2 Procedure for Tribunal 66 How proceeding to be commenced (1) A proceeding must be commenced by application made in accordance with the Tribunal Act. (2) An application may be made by: (a) the affected adult; or (b) an interested person for the affected adult. (3) An application for an order under section 60 may also be made by: (a) the former decision maker; or (b) if the represented adult has died – the executor or administrator of the adult's estate. (4) An application for an order under section 69(2) or 70(3) may also be made by another person who the Tribunal is satisfied has a proper interest in the proceedings. 67 Parties In a proceeding, in addition to the persons mentioned in section 127 of the Tribunal Act, each of the following is a party: (a) if the applicant is not the affected adult – the affected adult; (b) any other interested person for the affected adult who, on application, is permitted by the Tribunal to join the proceeding. Note for section 67 Under section 127(1)(a) of the Tribunal Act, the applicant is a party to proceedings. Under section 128 of that Act, the Tribunal may join any other person as a party if the Tribunal considers it desirable for the person to be a party. 69 Tribunal proceedings to be private (1) Despite section 60 of the Tribunal Act, a proceeding is to be conducted in private and not open to the public. (2) However, the Tribunal may order that proceedings be open to the public if it appears to the Tribunal that justice will be best served by doing so. -- 35 of 52 -- Part 5 Civil and Administrative Tribunal Division 2 Procedure for Tribunal Advance Personal Planning Act 2013 32 69A Reasons may be given orally (1) Despite section 105(2) of the Tribunal Act, the Tribunal may give the reasons for the decision in any proceeding and any relevant findings of fact (the reasons) orally to the parties to the proceeding. (2) A party to the proceeding may apply to the Tribunal to give the reasons in writing, and the Tribunal must do so within 28 days after the application is made. (3) A party to the proceeding who proposes to make an application under subsection (2) must do so within 28 days after the reasons are given orally. (4) Section 105(4) of the Tribunal Act applies to the time limit mentioned in subsection (2). 70 Reporting on proceedings relating to Part 4 (1) A person commits an offence if: (a) the person intentionally engages in conduct; and (b) the conduct results in the publication of information about Part 4 proceedings that identifies the adult who is the subject of the proceedings or enables the identity of the adult to be ascertained and the person is reckless in relation to the result. Maximum penalty: 200 penalty units or imprisonment for 2 years. (2) Subsection (1) does not apply if the Tribunal has authorised the publication of the information. (3) The Tribunal may, by order, authorise publication of information that is otherwise prohibited only if satisfied that publication: (a) is consistent with the decision-making principles; and (b) is in the public interest. (4) In this section: Part 4 proceedings means proceedings relating to a matter arising under Part 4. publication includes broadcast and dissemination. -- 36 of 52 -- Part 6 Enforcement Division 1 Investigations Advance Personal Planning Act 2013 33 Part 6 Enforcement Division 1 Investigations 75 Requirement to provide information, produce documents etc. (1) The Chief Executive Officer may exercise the powers under this section for the purposes of: (a) assessing whether or not the provisions of this Act are being complied with; or (b) seeking evidence of a suspected offence against this Act. (2) The Chief Executive Officer may, by written notice, require a person who the Chief Executive Officer reasonably believes has information or a document or other thing that is relevant for those purposes to do one or more of the following: (a) provide the information to the Chief Executive Officer; (b) produce the document or thing to the Chief Executive Officer for inspection; (c) answer questions asked by the Chief Executive Officer. (3) The Chief Executive Officer may make copies of, or otherwise make a record of, a document or thing produced for inspection. (4) A person commits an offence if: (a) the person has been given a notice under subsection (2); and (b) engages in conduct that results in a contravention of the notice. Maximum penalty: 200 penalty units. (5) It is a defence to a prosecution for an offence against subsection (4) if the defendant establishes a reasonable excuse. (6) Without limiting subsection (5), it is a reasonable excuse for an individual to fail to comply with the requirement if doing so might tend to incriminate the individual. -- 37 of 52 -- Part 6 Enforcement Division 2 Offences Advance Personal Planning Act 2013 34 Division 2 Offences 76 Falsely representing to be decision maker (1) A person commits an offence if: (a) the person intentionally represents, by words or conduct, that the person or another person: (i) is a decision maker; or (ii) is a decision maker with authority for a particular matter; and (b) the representation is false and the person has knowledge of that circumstance. Maximum penalty: 200 penalty units or imprisonment for 2 years. (2) A person commits an offence if: (a) the person intentionally represents, by words or conduct, that the person or another person: (i) is a decision maker; or (ii) is a decision maker with authority for a particular matter; and (b) the representation is false and the person has knowledge of that circumstance; and (c) the person makes the representation with the intention of obtaining a benefit for the person or another person. Maximum penalty: Imprisonment for 7 years. 77 Improper inducement in relation to advance personal plan A person commits an offence if: (a) the person engages in conduct with intent to induce another person to make, amend or revoke an advance personal plan; and (b) the conduct involves dishonesty or undue influence. Maximum penalty: Imprisonment for 7 years. -- 38 of 52 -- Part 6 Enforcement Division 2 Offences Advance Personal Planning Act 2013 35 78 Improper exercise of authority by decision maker (1) A decision maker commits an offence if: (a) the decision maker intentionally engages in conduct in the exercise of the decision maker's authority as a decision maker; and (b) the conduct results in a contravention of section 21(1) and the decision maker is reckless in relation to the result. Maximum penalty: Imprisonment for 5 years. (2) A decision maker commits an offence if: (a) the decision maker intentionally engages in conduct purportedly in the exercise of the decision maker's authority as a decision maker for a matter; and (b) the represented adult does not have impaired decision-making capacity for the matter and the decision maker is reckless in relation to that circumstance. Maximum penalty: Imprisonment for 5 years. (3) A decision maker commits an offence if: (a) the decision maker intentionally engages in conduct in the exercise of the decision maker's authority as a decision maker; and (b) the conduct results in a contravention of section 21(1) and the decision maker is reckless in relation to the result; and (c) the decision maker engages in the conduct with the intention of obtaining a benefit for the decision maker or another person. Maximum penalty: Imprisonment for 7 years. (4) A decision maker commits an offence if: (a) the decision maker intentionally engages in conduct purportedly in the exercise of the decision maker's authority as a decision maker for a matter; and (b) the represented adult does not have impaired decision-making capacity for the matter and the decision maker is reckless in relation to that circumstance; and -- 39 of 52 -- Part 6 Enforcement Division 2 Offences Advance Personal Planning Act 2013 36 (c) the decision maker engages in the conduct with the intention of obtaining a benefit for the decision maker or another person. Maximum penalty: Imprisonment for 7 years. 79 Inducing decision maker to exercise authority improperly (1) A person commits an offence if: (a) the person intentionally engages in conduct; and (b) the conduct induces a decision maker to contravene section 21(1) and the person has intention in relation to that result. Maximum penalty: Imprisonment for 5 years. (2) A person commits an offence if: (a) the person intentionally engages in conduct; and (b) the conduct induces a decision maker to contravene section 21(1) and the person has intention in relation to that result; and (c) the person engages in the conduct with the intention of obtaining a benefit for the person or another person. Maximum penalty: Imprisonment for 7 years. 80 Misleading information (1) A person commits an offence if: (a) the person intentionally gives information to another person; and (b) the other person is an Agency officer; and (c) the information is misleading and the person has knowledge of that circumstance; and (d) the Agency officer is acting in an official capacity and the person has knowledge of that circumstance. Maximum penalty: 400 penalty units or imprisonment for 2 years. -- 40 of 52 -- Part 6 Enforcement Division 2 Offences Advance Personal Planning Act 2013 37 (2) A person commits an offence if: (a) the person intentionally gives a document to another person; and (b) the other person is an Agency officer; and (c) the document contains misleading information and the person has knowledge of that circumstance; and (d) the Agency officer is acting in an official capacity and the person has knowledge of that circumstance. Maximum penalty: 400 penalty units or imprisonment for 2 years. (3) Strict liability applies to subsections (1)(b) and (2)(b). (4) Subsection (2) does not apply if the person, when giving the document: (a) draws the misleading aspect of the document to the Agency officer's attention; and (b) to the extent to which the person can reasonably do so – gives the Agency officer the information necessary to remedy the misleading aspect of the document. (5) In this section: acting in an official capacity, in relation to an Agency officer, means the officer is exercising authority under, or otherwise related to the administration of, this Act. Agency officer means the Chief Executive Officer, a delegate of the Chief Executive Officer or a public sector employee employed in the Agency. misleading information means information that is misleading in a material particular or because of the omission of a material particular. -- 41 of 52 -- Part 6 Enforcement Division 4 Consequences of finding of guilt Advance Personal Planning Act 2013 38 Division 3 Criminal liability for offences 81 Alternative verdicts (1) This section applies if, in a proceeding against a person charged with an offence against a provision mentioned in the following Table (the prosecuted offence), the trier of fact: (a) is not satisfied beyond reasonable doubt that the person committed the prosecuted offence; but (b) is satisfied beyond reasonable doubt that the person committed the offence specified in the Table as the alternative offence for the prosecuted offence. (2) The trier of fact may find the person not guilty of the prosecuted offence but guilty of the alternative offence. Table Alternative verdicts Prosecuted offence Alternative offence section 76(2) section 76(1) section 78(3) section 78(1) section 78(4) section 78(2) section 79(2) section 79(1) Division 4 Consequences of finding of guilt 82 Termination of appointment as decision maker and disqualification (1) If a court finds a person guilty of an offence against this Act, the Tribunal, in addition to any penalty imposed by the court on the person, may make an order to do either or both of the following: (a) if the person is a decision maker – terminate the person's appointment as decision maker; (b) disqualify the person from being a decision maker for the period specified by the Tribunal. (2) A person who is disqualified under subsection (1)(b) cannot be appointed as, or exercise authority as, a decision maker during the period of the disqualification. -- 42 of 52 -- Part 6 Enforcement Division 5 Legal proceedings Advance Personal Planning Act 2013 39 83 Payment of compensation to represented adult (1) This section applies if a person (the offender) is found guilty of an offence against any of sections 76 to 79. (2) If the court finding the offender guilty is satisfied that the conduct of the offender in committing the offence caused loss to the represented adult, the court may order the offender to pay compensation to the represented adult for that loss. (3) If the represented adult is dead, a reference in subsection (2) to the represented adult includes a reference to the adult's estate. (4) The standard of proof for a matter under this section is the balance of probabilities. (5) This section does not affect any civil liability the offender may have in relation to the conduct constituting the offence, but any compensation paid under this section must be taken into account in assessing damages in a later civil action. (6) In this section: represented adult includes: (a) for an offence against section 76 – a person for whom the offender represented that the offender was a decision maker; and (b) for an offence against section 77 – a person whom the offender sought to induce to make, amend or revoke an advance personal plan. Division 5 Legal proceedings 84 Commencement of prosecution Proceedings for an offence against this Act may be started only by: (a) the Chief Executive Officer; or (b) a person authorised by the Minister. 85 When prosecution to be started Proceedings for an offence against this Act that is a summary offence may be started within 2 years after the date on which the Chief Executive Officer first became aware of the commission of the offence. -- 43 of 52 -- Part 7 Miscellaneous matters Advance Personal Planning Act 2013 40 Part 7 Miscellaneous matters 86 Approved forms (1) The Minister may approve forms for use as mentioned in section 9. (2) The Chief Executive Officer must ensure that an approved form: (a) is published in the Gazette as soon as practicable after it is approved; and (b) is available for members of the public to download or print from the Agency's website. 87 Advance Personal Plans (General) Register (1) The Chief Executive Officer may establish a register of advance personal plans for the purpose of: (a) providing a repository for the safe-keeping of advance personal plans; and (b) making them available to persons who have a proper interest in knowing whether an adult has an advance personal plan, and if so the terms on the plan. Example for subsection (1) A medical practitioner treating a person who has lost decision-making capacity would have a proper interest in finding out whether the person has an advance personal plan as it might contain an advance consent decision or appoint a decision maker. (2) Registration of an advance personal plan in a register established under subsection (1) is optional and non-registration does not affect the validity or effect of the advance personal plan. Note for subsection (2) Part 4A makes provision in relation to decision makers entering into dealings in relation to land, including requiring registration of the advance personal plan in the Advance Personal Planning (Part 4A) Register, which is a separate register established under that Part. 88 Recognition of interstate documents (1) Subject to this section, a recognised interstate document has effect in the Territory as if it were an advance personal plan made under this Act. (2) This Act, other than Parts 2 and 3, applies to a recognised interstate document as if it were an advance personal plan made under this Act. -- 44 of 52 -- Part 8 Repeals and transitional matters Division 1 Repeals Advance Personal Planning Act 2013 41 (3) An amendment or revocation of a recognised interstate document by the maker must be made in accordance with the corresponding law under which it was made. (4) A person appointed by a recognised interstate document to make decisions for the maker of the document has, in the Territory, the same rights, powers and responsibilities as the person has under the corresponding law under which it was made. (5) However, the regulations may limit, or impose conditions on the exercise of, the rights and powers mentioned in subsection (4). (5A) This section applies regardless of when the recognised interstate document was made. (6) In this section: corresponding law means a law of the Commonwealth, a State or another Territory that is prescribed by regulation to be a corresponding law for this section. recognised interstate document means a document made under a corresponding law that is of a kind prescribed by regulation to be a recognised interstate document. 89 Other rights not affected This Act does not affect any other right an adult may have, otherwise than under this Act, in relation to the making of decisions about the adult's care or welfare (including health care) or property or financial affairs. 90 Regulations (1) The Administrator may make regulations under this Act. (2) A regulation may prescribe fees payable under this Act. Part 8 Repeals and transitional matters Division 1 Repeals 91 Natural Death Act 1988 repealed The Natural Death Act 1988 (Act No. 51, 1988) is repealed. -- 45 of 52 -- Part 8 Repeals and transitional matters Division 3 Transitional matters for Advance Personal Planning Amendment Act 2016 Advance Personal Planning Act 2013 42 Division 2 Transitional matters for Advance Personal Planning Act 2013 92 Continuation of directions under Natural Death Act 1988 (1) On the commencement of section 91, an existing direction becomes an advance personal plan that contains an advance consent decision in accordance with its terms. (2) The advance personal plan has effect as if it had been made in accordance with this Act. (3) In this section: existing direction means a direction made under section 4 of the Natural Death Act 1988 if: (a) it was made before the commencement of section 91; and (b) it had not been revoked before that commencement; and (c) the person who made it was alive as at that commencement. Division 3 Transitional matters for Advance Personal Planning Amendment Act 2016 93 Definitions In this Division: amending Act means the Advance Personal Planning Amendment Act 2016. commencement means the commencement of the amending Act. Court means the Local Court. new APP Act means the Advance Personal Planning Act 2013, as in force immediately after the commencement. old APP Act means the Advance Personal Planning Act 2013, as in force immediately before the commencement. 94 Appeals to Supreme Court (1) This section applies if, immediately before the commencement: (a) a decision of the Court was the subject of an appeal to the Supreme Court under section 71 of the old APP Act that had not been decided by the Supreme Court; or -- 46 of 52 -- Part 8 Repeals and transitional matters Division 3 Transitional matters for Advance Personal Planning Amendment Act 2016 Advance Personal Planning Act 2013 43 (b) an appeal against a decision of the Court could be, but had not been, made to the Supreme Court under section 71 of the old APP Act. (2) For subsection (1)(a), the Supreme Court must decide the appeal under the old APP Act. (3) For subsection (1)(b), an appeal may be made to the Supreme Court as if the old APP Act still applied and the Supreme Court must decide the appeal under the old APP Act. (4) If, as a result of deciding the appeal, the Supreme Court refers the matter back to the Court for reconsideration under section 74(1)(e) of the old APP Act, the Court must reconsider the matter under the old APP Act. (5) Any order of the Court following the reconsideration of the matter has effect as if it were an order made by the Tribunal under the new APP Act. 95 Applications to Local Court (1) This section applies if, before the commencement: (a) an application was made to the Court under the old APP Act; and (b) the application was not determined by the Court. (2) The Court must hear and determine the application under the old APP Act. (3) Any order of the Court has effect as if it were an order made by the Tribunal under the new APP Act. 96 Offence provisions – before and after commencement (1) The offence provisions, as amended by the amending Act, apply only in relation to offences committed after the commencement. (2) The offence provisions, as in force before the commencement, continue to apply in relation to offences committed before the commencement. (3) For this section, if any of the conduct constituting an offence occurred before the commencement, the offence is taken to have been committed before the commencement. -- 47 of 52 -- Part 8 Repeals and transitional matters Division 4 Transitional matters for Health Care Decision Making Act 2023 Advance Personal Planning Act 2013 44 (4) In this section: offence provisions means the provisions of this Act that create or relate to offences (including in relation to criminal responsibility, defences and penalties). Division 4 Transitional matters for Health Care Decision Making Act 2023 97 Consent decision about health care (1) An advance consent decision about health care action set out in an advance personal plan that is in effect immediately before the commencement of Part 2 of the Health Care Decision Making Act 2023 continues to have effect in accordance with its terms after that commencement. (2) A consent decision, in relation to health care action, made by a decision maker or adult guardian under this Act that is in effect immediately before the commencement of Part 2 of the Health Care Decision Making Act 2023 continues to have effect in accordance with its terms after that commencement. -- 48 of 52 -- ENDNOTES Advance Personal Planning Act 2013 45 ENDNOTES 1 KEY Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced 2 LIST OF LEGISLATION Advance Personal Planning Act 2013 (Act No. 35, 2013) Assent date 19 December 2013 Commenced 17 March 2014 (Gaz S14, 17 March 2014) Advance Personal Planning (Consequential Amendments) Act 2013 (Act No. 36, 2013) Assent date 19 December 2013 Commenced pt 3: 5 February 2014 (Gaz G5, 5 February 2014, p 2); rem: 17 March 2014 (Gaz S14, 17 March 2014) Statute Law Revision Act 2014 (Act No. 38, 2014) Assent date 13 November 2014 Commenced 13 November 2014 Local Court (Related Amendments) Act 2016 (Act No. 8, 2016) Assent date 6 April 2016 Commenced 1 May 2016 (s 2, s 2 Local Court (Repeals and Related Amendments) Act 2016 (Act No. 9, 2016) and Gaz S34, 29 April 2016) Advance Personal Planning Amendment Act 2016 (Act No. 13, 2016) Assent date 7 June 2016 Commenced 28 July 2016 (s 2, s 2 Guardianship of Adults Act 2016 (Act No. 15, 2016) and Gaz S74, 27 July 2016, p 1) Guardianship of Adults Act 2016 (Act No. 15, 2016) Assent date 7 June 2016 Commenced 28 July 2016 (Gaz S74, 27 July 2016, p 1) Surrogacy Act 2022 (Act No. 8, 2022) Assent date 26 May 2022 Commenced 20 December 2022 (Gaz S66, 20 December 2022) -- 49 of 52 -- ENDNOTES Advance Personal Planning Act 2013 46 Health Care Decision Making Act 2023 (Act No. 19, 2023) Assent date 17 August 2023 Commenced 1 July 2024 (Gaz G13, 20 June 2024, p 2) 3 GENERAL AMENDMENTS General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to: ss 1, 3, 10, 13, 16, 24, 25, 31, 43, 53, 55D, 55E, 91, 92 and 93. 4 LIST OF AMENDMENTS lt amd No. 19, 2023, s 61 s 3 amd No. 36, 2013, s 18; No. 13, 2016, s 106; No. 15, 2016, s 4; No. 19, 2023, s 62 s 4 amd No. 13, 2016, s 5 s 5 amd No. 13, 2016, s 6; No. 19, 2023, s 63 s 6 amd No. 19, 2023, s 64 ss 6A – 6B ins No. 19, 2023, s 65 s 8 amd No. 19, 2023, s 66 ss 11 – 14 amd No. 13, 2016, s 27 s 20 amd No. 19, 2023, s 67 s 21 amd No. 13, 2016, s 27; No. 19, 2023, s 68 s 22 amd No. 36, 2013, s 19 sub No. 19, 2023, s 69 s 23 sub No. 19, 2023, s 69 s 24 amd No. 8, 2022, s 59 s 25 rep No. 19, 2023, s 70 s 28 amd No. 13, 2016, s 7 ss 31 – 33 amd No. 13, 2016, s 27 ss 35 – 37 amd No. 13, 2016, s 27 pt 4 div 1 hdg om No. 19, 2023, s 71 s 39A ins No. 15, 2016, s 107 rep No. 19, 2023, s 72 pt 4 div 2 hdg rep No. 19, 2023, s 73 s 40 rep No. 19, 2023, s 73 s 41 amd No. 13, 2016, s 27 rep No. 19, 2023, s 73 s 42 amd No. 36, 2013, s 20; No. 13, 2016, s 27 rep No. 19, 2023, s 73 s 43 amd No. 15, 2016, s 108 rep No. 19, 2023, s 73 s 44 amd No. 13, 2016, s 27 rep No. 19, 2023, s 73 s 44A ins No. 36, 2013, s 21 amd No. 13, 2016, s 27 rep No. 19, 2023, s 73 pt 4 div 3 hdg rep No. 19, 2023, s 73 s 45 amd No. 13, 2016, s 27 rep No. 19, 2023, s 73 s 46 amd No. 15, 2016, s 109; No. 13, 2016, s 27 rep No. 19, 2023, s 73 -- 50 of 52 -- ENDNOTES Advance Personal Planning Act 2013 47 s 47 amd No. 13, 2016, s 27 rep No. 19, 2023, s 73 ss 48 – 49 rep No. 19, 2023, s 73 pt 4 div 4 hdg rep No. 19, 2023, s 73 ss 50 – 52 rep No. 19, 2023, s 73 s 53 amd No. 36, 2013, s 22; No. 13, 2016, s 27 rep No. 19, 2023, s 73 ss 54 – 55 rep No. 19, 2023, s 73 pt 4A hdg ins No. 36, 2013, s 23 pt 4A div 1 hdg ins No. 36, 2013, s 23 s 55A ins No. 36, 2013, s 23 pt 4A div 2 hdg ins No. 36, 2013, s 23 ss 55B – 55D ins No. 36, 2013, s 23 pt 5 hdg sub No. 13, 2016, s 8 pt 5 div 1 hdg sub No. 13, 2016, s 8 s 55E ins No. 13, 2016, s 8 pt 5 div 1A hdg ins No. 13, 2016, s 8 s 56 sub No. 13, 2016, s 9 s 57 amd No. 13, 2016, s 10 ss 58 – 61 amd No. 13, 2016, s 27 s 62 amd No. 8, 2016, s 45; No. 13, 2016, s 11 ss 63 – 64 amd No. 13, 2016, s 27 rep No. 19, 2023, s 74 s 65 rep No. 13, 2016, s 12 pt 5 div 2 hdg amd No. 13, 2016, s 27 s 66 amd No. 13, 2016, s 13 s 67 sub No. 13, 2016, s 14 s 68 rep No. 13, 2016, s 14 s 69 amd No. 13, 2016, s 15 s 69A ins No. 13, 2016, s 16 s 70 amd No. 13, 2016, s 17 pt 5 div 3 hdg rep No. 13, 2016, s 18 ss 71 – 74 rep No. 13, 2016, s 18 s 76 sub No. 13, 2016, s 19 s 78 amd No. 36, 2013, s 24; No. 38, 2014, s 2 sub No. 13, 2016, s 20 s 79 sub No. 13, 2016, s 20 s 80 amd No. 13, 2016, s 21 s 81 amd No. 13, 2016, s 22 pt 6 div 4 hdg amd No. 13, 2016, s 23 s 82 amd No. 13, 2016, s 24 s 83 amd No. 13, 2016, s 25 s 85 amd No. 8, 2016, s 45 s 87 amd No. 36, 2013, s 25 s 88 amd No. 36, 2013, s 26 pt 8 div 3 hdg ins No. 13, 2016, s 26 ss 93 – 96 ins No. 13, 2016, s 26 pt 8 div 4 hdg ins No. 19, 2023, s 75 -- 51 of 52 -- ENDNOTES Advance Personal Planning Act 2013 48 s 97 ins No. 19, 2023, s 75 -- 52 of 52 --