Understanding Guardianship in Tasmania

All adults have the right to exercise autonomy and make decisions about their own life. An adult is presumed to have mental capacity to make their own decisions. An adult who does not have capacity to make certain significant decisions can have their right to make those decisions removed through the appointment of a substitution decision maker that is a guardian or administrator.

In certain limited circumstances, the Tribunal itself, can make decisions for a person with decision making incapacity. Legal capacity, as a general proposition in guardianship, is considered to be decision-specific. That is, an adult at any given point in time may have capacity to do one thing and not another.

The matters heard and determined in the Guardianship Stream are by their very nature significant and relate to personal matters such as where to live; what medical treatment a person may need or about their estate. These matters can be highly emotive and more often than not when an order is made to appoint a substitute decision maker, it constitutes an infringement of a person’s basic human rights.

The Guardianship jurisdiction has its foundation in the parens patriae (‘parent of the country’) jurisdiction, which concerns people who need protection of the law and cannot make decisions for themselves. In the 1980’s the guardianship jurisdiction began to move to specialist Tribunals to promote accessibility, speed, and expertise. Guardianship jurisdictions are frequently referred to as a ‘protective jurisdiction’.

The primary functions of the Tasmanian Civil and Administrative Tribunal (the Tribunal) Guardianship Stream are established by the Guardianship and Administration Act 1995 (the Act) which grants the Tribunal jurisdiction to hear and determine applications for guardianship and administration and also importantly, review of those orders. The Tribunal also has jurisdiction to consent to medical and dental treatment. The Tribunal is required to keep a register of any instruments of appointment of an enduring guardian. The Tribunal has powers to review an instrument of appointment of an enduring guardian and can give advice and directions to guardians (including enduring guardians) and administrators.

Under the Powers of Attorney Act 2000 the Tribunal has powers to review an enduring power of attorney or revocation of an enduring power of attorney, and can also give advice and direction to an attorney. Under the Disability Services Act 2011 the Tribunal has authority to approve the use of personal and environmental restrictive interventions for a person with disability. The Tribunal also has functions under Part 3 of the Wills Act 2008 in that it can order the execution of a statutory will for a person who lacks testamentary capacity and who has never made a valid will.

The Guardianship jurisdiction, both in Tasmania and other Australian States and Territories seeks to balance the need of providing necessary protection from abuse, exploitation and neglect with a person’s rights to exercise freedom of decision and action.

The person who is subject to the application (the ‘proposed represented person’) is the centre of the proceedings. Section 6 of the Act sets out guiding principles to be observed by anyone exercising functions under the Act, which focus on the person’s rights and to some extent reduce where possible the impact of the removal of a person’s human rights. These principles are – the means which is the least restrictive of a person’s freedom of decision and action should be adopted; the best interests of the person are to be promoted; and the wishes of a person are, if possible, to be carried into effect.

This means when a guardian and /or administrator is appointed by the Tribunal, the guardian and administrator must observe these principles. Further, section 27 of the Act provides that a guardian must act at all times in the best interests of the person under guardianship. Similarly, section 57 of the Act provides that an administrator must act at all times in the best interests of the represented person.

The Tribunal is required to hold a hearing in relation to a substantive application and review of order applications filed with the Guardianship Stream Registry.

Prior to November 2021 Requests for an Emergency Order pursuant to section 65 of the Act were determined without a formal hearing, which is permitted under section 65(4) of the Act. The Tribunal has changed its process so that Emergency Requests are now determined by a formal hearing. This process also applies to out of hours Requests. The Tribunal has taken this step to allow for the direct involvement of the person where possible, and the involvement of family or other supports.

On receipt of an application, the Tribunal will hold a hearing. Notice of hearing will be provided to parties and interested persons. The Act requires not less than 10 days’ notice of hearing be given to parties and any other person with a proper interest in the matter. The Tribunal sits and hears most cases in public, but given the sensitivity of the matters before it, may determine that proceedings should be closed.

In the vast majority of matters in the Guardianship Stream a three member multi skilled panel will hear and determine the Application. The Tribunal panel is usually made up of a presiding legal member, medical member or psychologist and a community member.

At a hearing the Tribunal is under a duty to comply with the legal requirements of procedural fairness, that is to ensure it acts fairly and a person has an opportunity to be heard; to ensure tribunal members are impartial and there is no actual or perceived bias. While the Tribunal is not bound by the rules of evidence which allows for greater informality than courts, the common law rules of evidence assist when determining relevance of material and its probative value.

In accordance with the section six principle to ascertain ‘the wishes of the person’, the Tribunal’s pre-hearing processes and more informal procedure during hearings, support the person with the disability to participate in the proceedings and articulate their views and wishes where possible. The TASCAT Act 2020 allows for the person to be represented by any legal and advocacy representative. Family, friends or support persons can also attend the hearing, and where appropriate participate in the hearing proceedings.

The Act sets out who can be eligible to be appointed as guardian and/or administrator for a person. While the Act does not specifically state it, the Tribunal will consider the appointment of any family or friend of the person if they seek appointment first. The Tribunal needs to be satisfied the proposed guardian/administrator meets the eligibility criteria set out in section 21 and 54 of the Act. If the eligibility criteria is not met, the Tribunal, as last resort will appoint the Public Guardian or Public Trustee, or a trustee company within the meaning of the Trustee Companies Act 1953.

In relation to the hearing of guardianship and administration applications, the Tribunal can make a full or limited guardianship order and/or administration order. The Act states that a full order cannot be made where a limited order would suffice. In practice, it is extremely rare for the Tribunal to make a full guardianship order. If the order is limited, the guardian and/or administrator can only act within the powers granted to them.

If the Tribunal appoints a guardianship and/or administration, the order will be time limited. A guardianship and administration order can be reviewed before the expiry of the order. A review of an order requires a hearing be held to see if the person still has a disability; and is unable by reason of the disability to make reasonable judgements for him or herself; and continues to need an order. An order can be revoked if this criteria is no longer met, or if the criteria is met, the order can be continued or varied.

While statutory reviews of orders are held, a non-statutory review can occur at any time if there is a change in the person’s circumstances. Regular reviews of orders is consistent with Article 12 of the United Nations Convention of the Rights of Person with Disabilities which concerns the legal capacity of people with disabilities and that all measures that relate to the exercise of legal capacity of persons with disabilities must provide for appropriate and effective safeguards. These safeguards include ‘…proportionality and tailoring to the person’s circumstances; applicable for the shortest time possible and regularly reviewed by an independent authority’ (Art 12(4)).

A guardian and/or administrator appointed by the Tribunal must furnish reports annually and at such times as the Tribunal determines. The Tribunal has recently reviewed many of its forms, including Guardian’s and Administrator’s reporting forms, financial statements and financial summary forms to ensure appropriate recording is occurring by all Tribunal appointed guardians and administrators, public and private, and these reports are then audited by a compliance officer of the Tribunal Registry.

On completion of a hearing of an application, a party to the proceedings or a person aggrieved by a determination of the Tribunal may by notice in writing request a statement of reasons. The Tribunal must within 21 days publish a statement of reasons. The Tribunal on its own motion will sometimes publish its reasons to assist parties in the understanding of the evidence before the Tribunal and what evidence the Tribunal relied on to make its findings and subsequent order. This is aimed at promoting a greater understanding of the Guardianship Stream jurisdiction and to promote the TASCAT objectives to be ‘accountable and transparent.’ Given the private and personal nature of the evidence at hearing the Tribunal redacts all its decisions, which are published on Austlii.

Parties to proceedings in the Guardianship Division may appeal any decision made under the enabling legislation. Appeals to the Supreme Court may be made as of right on a question of law or with leave on any other question.

The Tribunal has an ongoing and important role to play in the protection and empowerment of people with decision making disability, to ensure such people are not left in situations of neglect, subject to elder or other abuse or at immediate and unacceptable risk.

1. The Tribunal, after conducting a hearing can consent to medical or dental treatment for a person who does not understand the nature and effect of medical or dental treatment, pursuant to Part 6 of the Guardianship and Administration Act 1995. Similarly, the Tribunal, after conducting a hearing can approve the use of a personal or environmental restrictive intervention under the Disability Services Act 2011
2. Without limiting that general obligation, section 27(2) provides that a guardian will be acting in the best interests of a person under guardianship if the guardian acts as far as possible:

(a) in consultation with that person, taking into account, as far as possible, his or her wishes; and

(b) as an advocate for that person; and

(c) in such a way as to encourage that person to participate as much as possible in the life of the community; and

(d) in such a way as to encourage and assist that person to become capable of caring for himself or herself and of making reasonable judgements relating to his or her person; and

(e) in such a way as to protect that person from neglect, abuse or exploitation.