Acts and Regulations

Rule-71.1 - PROCEEDINGS UNDER THE SUPPORTED DECISION-MAKING AND REPRESENTATION ACT

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Current to 1 January 2024
PARTICULAR PROCEEDINGS
RULE 71.1
PROCEEDINGS UNDER THE
SUPPORTED DECISION-MAKING AND REPRESENTATION ACT
71.1.01Application of Rule
This rule applies to proceedings under the Supported Decision-Making and Representation Act.
71.1.02Application of Other Rules
Except where inconsistent with this rule, the other Rules of Court apply with the necessary modifications to a proceeding conducted under this rule.
71.1.03Definitions
In this rule,
assisted person means a person who has appointed a decision-making assistant under a decision-making assistance authorization;
common-law partner means a person who cohabits in a conjugal relationship with another person if the persons are not married to each other;
Public Trustee means the Public Trustee appointed under the Public Trustee Act;
represented person means a person for whom a representative has been appointed under a representation order;
respondent means a person who is served with a Notice of Application under this rule;
supported person means a person for whom a decision-making supporter has been appointed under a supported decision-making order.
71.1.04Commencement of Proceedings – Supported Decision-Making Orders or Representation Orders
(1)An application for a supported decision-making order or representation order under the Supported Decision-Making and Representation Act shall be commenced by issuing a Notice of Application (Form 71.1A).
(2)A Notice of Application shall be accompanied by the following documents:
(a) an affidavit of the applicant containing the statements and information prescribed by regulation under the Supported Decision-Making and Representation Act;
(b) an affidavit of any proposed decision-making supporter or representative, as the case may be, other than the applicant, containing the information prescribed by regulation under the Supported Decision-Making and Representation Act;
(c) a capacity assessment report in the form prescribed by regulation under the Supported Decision-Making and Representation Act; and
(d) a financial summary in the form prescribed by regulation under the Supported Decision-Making and Representation Act, if applicable.
(3)Despite clause (2)(c), a capacity assessment report does not need to be filed with a Notice of Application if the person for whom the order is sought refuses to undergo or continue a capacity assessment.
(4)A Notice of Application is issued when the original, a copy for each party and any filing fee prescribed by these rules
(a) are taken to the office of the administrator of the Family Division in the judicial district in which the proceeding is to be commenced, or
(b) are sent by registered mail or prepaid courier and addressed to the administrator of the Family Division in the judicial district in which the proceeding is to be commenced.
(5)On receiving the Notice of Application, the copies and the filing fee prescribed by these rules, the administrator shall
(a) assign a court file number to the proceeding,
(b) write or stamp on the original and all copies of the Notice of Application
(i) the court file number, and
(ii) the date of issue,
(c) retain the original, and
(d) return the copies to the applicant.
71.1.05Service of Notice of Application
(1)An applicant shall cause the Notice of Application (Form 71.1A) and a blank Response (Form 71.1B) to be served on
(a) the person for whom the order is sought,
(b) any decision-making assistant, decision-making supporter or representative of the person for whom the order is sought,
(c) any attorney appointed by the person for whom the order is sought in an enduring power of attorney,
(d) any spouse or common-law partner of the person for whom the order is sought,
(e) any parent of the person for whom the order is sought,
(f) any child or sibling of the person for whom the order is sought who is 19 years of age or older, and
(g) any other person that the court directs.
(2)An applicant shall cause the Notice of Application, blank Response and documents referred to in Rule 71.1.04(2) to be served on the person for whom the order is sought by leaving a copy of the Notice of Application, blank Response and documents referred to in Rule 71.1.04(2) with the person and with the person in whose care the person resides.
(3)An applicant shall cause the documents referred to in Rule 71.1.04(2) to be served on a respondent other than the person for whom the other is sought only on the written request of the respondent.
(4)If the documentary evidence establishes that service of the Notice of Application, blank Response and documents referred to in Rule 71.1.04(2) on the person for whom the order is sought would cause serious harm to the person, the court may dispense with the service.
(5)An applicant may, with leave of the court, serve the Notice of Application and the blank Response on a person referred to in clause (1)(e) or (f) by mailing the documents in accordance with Rule 18.06.
(6)If the Public Trustee is an applicant for a representation order and does not know of the existence of a person referred to in clause (1)(e) or (f), the Public Trustee is not required to take steps to find out whether such a person exists.
(7)If the Public Trustee is an applicant for a representation order and does not know the address of a person referred to in clause (1)(e) or (f), the Public Trustee is not required to take steps to find the address or to serve a Notice of Application and blank Response on the person.
(8)The court may dispense with service of the Notice of Application and blank Response on a person referred to in clause (1)(e) or (f) if it is satisfied that
(a) the applicant has taken reasonable steps to find out whether such a person exists and was unable to do so,
(b) the applicant has taken reasonable steps to find the address of such a person and was unable to do so, or
(c) it is in the interests of justice to do so.
71.1.06Response of Respondent
(1)A respondent who wishes to oppose an application shall file a Response (Form 71.1B) together with a copy for the applicant and, if the respondent wishes to file an affidavit with the Response, the affidavit together with a copy for the applicant within 20 days after service of the Notice of Application.
(2)On receiving the Response, the administrator shall cause a copy of the Response and any affidavit of the respondent to be served on the applicant without delay.
71.1.07Record
(1)After the time for serving a Response has expired, an applicant shall file with the administrator a record that contains the following:
(a) an index;
(b) a copy of the Notice of Application (Form 71.1A);
(c) a copy of the affidavits and other documents referred to in Rule 71.1.04(2);
(d) a copy of any Response (Form 71.1B) and of any affidavit filed with it; and
(e) proof of service of the documents referred to in clauses (b) and (c).
(2)The administrator shall submit a record to a judge for consideration and, subject to paragraph (3), the judge may
(a) make an order without a hearing, or
(b) set a date and time for a hearing.
(3)An order shall be not made without a hearing if the person for whom the order is sought has filed a Response.
(4)If the judge sets a date and time for a hearing, the administrator shall notify the following persons of the date and time:
(a) the applicant;
(b) any person other than the applicant who is a proposed decision-making supporter or representative under the application;
(c) the person for whom the order is sought; and
(d) any respondent who has filed a Response.
(5)On receiving notification of the date and time of the hearing of the application, the applicant shall prepare and file a pre-hearing brief in accordance with Rule 38.06.1.
71.1.08Notice of Motion – Review of Orders and Directions
(1)An application for the review of a supported decision-making order or representation order under the Supported Decision-Making and Representation Act shall be made by Notice of Motion (Form 37A).
(2)An application for directions in relation to a supported decision-making order or representation order under the Supported Decision-Making and Representation Act shall be made by Notice of Motion (Form 37A).
(3)An applicant shall cause the Notice of Motion and any supporting documents to be served on
(a) the supported person or represented person, as the case may be,
(b) any decision-making supporter or representative of the person referred to in clause (a), and
(c) any other person who would be affected by the order sought.
(4)An applicant shall cause the Notice of Motion and any supporting documents to be served on the supported person or represented person, as the case may be, by leaving a copy of the Notice of Motion and supporting documents with the person and with the person in whose care the person resides.
(5)If the documentary evidence establishes that service of the Notice of Motion on the supported person or represented person, as the case may be, would cause serious harm to the person, the court may dispense with the service.
71.1.09Commencement of Proceedings – Other Orders
(1)An application under the Supported Decision-Making and Representation Act other than an application under Rule 71.1.04 or 71.1.08 shall be commenced by issuing a Notice of Application (Form 71.1C).
(2)A Notice of Application is issued when the original, a copy for each party and any filing fee prescribed by these rules
(a) are taken to the office of the administrator of the Family Division in the judicial district in which the proceeding is to be commenced, or
(b) are sent by registered mail or prepaid courier and addressed to the administrator of the Family Division in the judicial district in which the proceeding is to be commenced.
(3)On receiving the Notice of Application, the copies and the filing fee prescribed by these rules, the administrator shall
(a) assign a court file number to the proceeding,
(b) obtain a date and time for a hearing from a judge,
(c) write or stamp on the original and all copies of the Notice of Application
(i) the court file number,
(ii) the date of issue, and
(iii) the date and time of hearing,
(d) retain the original, and
(e) return a copy to the applicant.
71.1.10Service of Notice of Application
(1)An applicant shall cause the Notice of Application (Form 71.1C) to be served on
(a) the supported person, represented person or assisted person, as the case may be,
(b) any decision-making supporter, representative or decision-making assistant of the person referred to in clause (a), and
(c) any other person who would be affected by the order sought.
(2)An applicant shall cause the Notice of Application to be served on the supported person, represented person or assisted person, as the case may be, by leaving a copy with the person and with the person in whose care the person resides.
(3)If the documentary evidence establishes that service of the Notice of Application on the supported person or represented person, as the case may be, would cause serious harm to the person, the court may dispense with the service.
71.1.11Respondent – Affidavit
(1)A respondent who wishes to oppose an application may file an affidavit together with a copy for the applicant within 20 days after service of the Notice of Application.
(2)On receiving the affidavit of a respondent, the administrator shall cause a copy of it to be served on the applicant without delay.