Guardianship and Administration Act 1995; ss 3, 4, 5, 8, 11, 20, 40, 43, 65.

J v Guardianship and Administration Board and Anor [2019] TASSC 15.

MNX (Application for Guardianship) [2023] TASCAT 211.

The decision has been anonymised for the purpose of publication.

1. BKG is a 17-year-old male who resides in a community in Tasmania with his parents, KEG and OG. BKG will turn 18 in approximately 4 months.
2. On 27 June 2025, the Tasmanian Civil and Administrative Tribunal (the Tribunal) received an Application for Guardianship and Administration (the application) from the applicant, KEG. In the application, KEG sought to be appointed as administrator for BKG and proposed that OG be appointed as guardian for BKG. The application is made under the provisions of the G_uardianship and Administration Act 1995 (_Act).

1. On 4 August 2025, the Tribunal heard the application for administration and guardianship. Present at the hearing were the applicant, KEG; the proposed represented person, BKG; BKG's mother OG; BKG's NDIS support coordinator NQ; and Ms Aleicia Reid from the Public Trustee.
2. The Tribunal had before it the following documents:

(a) Application dated 8 July 2025.

(b) Health Practitioner's Report by Dr TT (HPR).

(c) Patient Health Summary for BKG.

(d) Medical letter from consultant psychiatrist Dr BG dated 26 March 2025.

(e) Medical letter of paediatrician Dr FG dated 14 January 2025.

(f) Medical letter of Dr TT dated 9 January 2025.

(g) Medical letters of neurologist Dr JMD dated 17 May 2024 and 15 November 2024.

(h) Medical letter psychiatry CMO Dr EC dated 18 October 2024.

(i) Letter from behaviour specialist and social worker MQ dated 14 May 2024.

(j) Bank Statements for BKG's bank account.

(k) Part C - Administration by KEG dated 27 June 2025.

(l) Part C - Guardianship by OG dated 27 June 2025.

1. At the conclusion of the hearing, the Tribunal made an administration order appointing KEG as administrator of BKG's financial matters for 3 years, with full powers, with such order commencing upon BKG turning 18 years of age. The Tribunal dismissed the application for guardianship. In dismissing the application, the Tribunal also made a notation and direction on the order stating:

NOTATION:

The Tribunal dismissed the application for guardianship on the basis that there was not a need for a formal guardianship order. The reason being because [BKG's] parents, [KEG] and [OG], are recognised as 'persons responsible' under the Guardianship and Administration Act [1995].

DIRECTION:

The Tribunal Registry send [BKG's] parents a copy of the Tribunal publication, titled 'Person Responsible - Consent to Medical and/or Dental Treatment'.

1. On 29 August 2025, the Tribunal received a request from KEG for written reasons of our decision to dismiss the application relating to guardianship. These are the reasons.

1. Section 20 of the Act grants the Tribunal authority to make a guardianship order, contingent upon the Tribunal being satisfied of the following criteria:

20. Guardianship order > > (1) The Tribunal, after a hearing, may make an order appointing a guardian for a person in respect of one or more personal matters if -

(a) an application for an order appointing a guardian, or for an order appointing an administrator, has been made to the Tribunal in respect of the person; and

(b) the Tribunal is satisfied that the person -

(i) has impaired decision-making ability in respect of decisions relating to those personal matters; and

(ii) is in need of a guardian; and

(c) the Tribunal is satisfied that the order will promote the person's personal and social well-being.

1. Further, s 20 provides direction as to how the Tribunal must assess whether there is a need for the appointment of a guardian:

20. Guardianship order > > ... > > (2) For the purposes of subsection (1)(b)(ii) , in determining whether a person is in need of a guardian, the Tribunal must consider the following:

(a) the wishes and preferences of the person, as far as they can be ascertained;

(b) whether the needs of the person could be met by other means less restrictive of that person's freedom of decision and action;

(c) the wishes and preferences of any close family members, carers and other significant persons in the life of the person who are present at the hearing and are entitled to be heard at that hearing.

(3) If the Tribunal makes a guardianship order under subsection (1) , the order -

(a) is to specify the personal matters for which a guardian is required; and

(b) may be subject to such conditions or restrictions as the Tribunal considers necessary.

(4) Two or more guardians for a person, each with authority in respect of different personal matters, may be appointed for that person under one or more guardianship orders.

(5) An order made under this section may be expressed to take effect when the represented person attains the age of 18 years.

1. 'Personal matter' is defined in s 3 of the Act as:

personal matter, in relation to a person, means a matter relating to the personal affairs or lifestyle of the person, including, but not limited to, the following matters:

(a) where and with whom the person lives, whether permanently or temporarily;

(b) who may contact (whether by post, telephone, or electronic or other means) or visit the person, including -

(i) restrictions on contact with the person or visits to the person that are necessary to promote the personal and social well-being of the person; and

(ii) the prohibition on contact with, or visits to, the person by any person if that contact or those visits would have an adverse effect on the person;

(c) the provision of care services to the person;

(d) what education, training or work the person undertakes;

(e) except as provided under Parts 5A and 6, consenting to or refusing or withdrawing consent to the provision of health care or medical or dental treatment to the person;

(f) except as provided under Part 6A , consenting to or refusing or withdrawing consent to the conduct of health and medical research in relation to the person;

(g) any legal matter that relates to the personal affairs of the person;

1. The Act provides guidance in relation to the meaning of the promotion of a person's personal and social well-being, with s 5 providing:

5. Meaning of promoting a person's personal and social well-being > > For the purposes of this Act, and without limiting the ways in which this may occur, the personal and social well-being of a person is promoted by -

(a) respecting the inherent dignity of the person and the person's individual autonomy, including the freedom to make their own choices and their right to independence; and

(b) respecting and promoting the person's own decision-making ability; and

(c) ensuring that the person is free from neglect, abuse, exploitation and other forms of harm; and

(d) the importance of preserving the dignity of risk of a person with impaired decision-making ability in respect of decisions is to be recognised and to inform those decisions; and

(e) respecting the right of the person to be treated without discrimination; and

(f) respecting the person's individuality, including personal or lifestyle activities that provide pleasure, purpose and fulfilment to the person; and

(g) having regard to the person's existing supportive relationships, religion, values, gender identity, gender expression, sexual orientation and cultural and linguistic environment; and

(h) respecting the right of Aboriginal and Torres Strait Islander people to enjoy their culture, including with other people who share that culture; and

(i) respecting the person's right to privacy and to have contact with and correspond privately with others; and

(j) recognising the importance of, and facilitating access to, the provision of supports that enable the person to exercise the person's autonomy; and

(k) recognising the importance to the person of any companion animal that the person has and having regard to the benefits that may be obtained from the person having a companion animal.

1. In exercising its powers under the Act, the Tribunal must have regard to the principles in s 8 of the Act, which provide:

8. Principles to be observed > > (1) A person performing a function under this Act is to observe the following principles:

(a) a person's decision-making ability is to be respected and promoted;

(b) a person who requires support in decision making is to be provided with access to the support necessary to enable the person, as far as is practicable in the circumstances -

(i) to make and participate in decisions affecting the person; and

(ii) to express the person's will and preferences; and

(iii) to develop the person's decision-making ability;

(c) the views, wishes and preferences of a person with impaired decision-making ability in respect of decisions are to be respected and used to inform those decisions;

(d) the role of close family members, carers and other significant persons in the life of a person with impaired decision-making ability in respect of decisions is to be recognised;

(e) the importance of preserving the cultural and linguistic environment of the person is to be recognised;

(f) the personal and social well-being of a person with impaired decision-making ability in respect of decisions is to be promoted;

(g) the means which is the least restrictive of a person's freedom of decision and action as possible in the circumstances is to be adopted.

(2) In addition to the principles set out in subsection (1) , if a function is to be performed under this Act by a person in relation to a child, that function is to be performed so that -

(a) as far as is practicable the best interests of the child are paramount; and

(b) full consideration is given to the following needs:

(i) to protect the child from harm;

(ii) to promote the child's development;

(iii) to strengthen, preserve and promote positive relationships between the child and the child's parents, family members and other people who are significant in the life of the child.

(3) Persons providing assistance on an informal basis to a person with impaired decision-making ability in respect of a decision are encouraged to apply and promote the principles in this section in providing that assistance.

1. Under Part 6, consent to medical and dental treatment, s 43 of the Act provides that a person responsible may give consent to medical and dental treatment, as follows:

43. Consent by persons responsible > > (1) A person responsible for a person to whom this Part applies may consent to the carrying out of medical or dental treatment, other than special treatment, on that person if the person responsible -

(a) is satisfied that the person to whom this Part applies is incapable of giving consent; and

(b) is satisfied that the medical or dental treatment would promote the personal and social well-being of that person; and

(c) in making that decision, takes into account the matters specified in subsection (2) .

(2) For the purposes of subsection (1)(c) , matters to be taken into account by the person responsible include -

(a) the wishes, directions, preferences and values of that person (including those expressed in an advance care directive), so far as they can be ascertained; and

(b) the consequences to that person if the proposed treatment is not carried out; and

(c) any alternative treatment available to that person; and

(d) the nature and degree of any significant risks associated with the proposed treatment or any alternative treatment; and

(e) subject to subsection (3) , that the treatment is to be carried out only to promote and maintain the health and well-being of that person; and

(f) (ea) in the case of proposed medical or dental treatment that is an intimate forensic procedure or a non-intimate forensic procedure -

(i) that a police officer or registered practitioner suspects that that person is a victim of a crime; and

(ii) that a police officer or registered practitioner has requested the treatment be carried out in relation to that person because the officer or practitioner suspects that that person is a victim of a crime; and

(g) any other matters prescribed by the regulations.

(3) Subsection (2)(e) does not apply to medical or dental treatment that is an intimate forensic procedure or a non-intimate forensic procedure.

1. Section 4 of the Act defines who a person responsible is:

4. Meaning of person responsible > > (1) In this Act, person responsible for another person means -

(a) where the other person is under the age of 18 years and has a spouse, the spouse; or

(b) where the other person is under the age of 18 years and has no spouse, his or her parent; or

(c) where the other person is of or over the age of 18 years, one of the following persons, in order of priority:

(i) the other person's guardian, if the order or instrument appointing the guardian provides authority for the guardian to make the relevant decision;

(ii) the other person's spouse;

(iii) the person having the care of the other person;

(iv) a close family member of the other person; or

(d) in relation to an intimate forensic procedure, or a non-intimate forensic procedure, in respect of the other person, to which a request under subsection (1A) relates, the Public Guardian.

• (1A) A police officer or registered practitioner may, by notice to the Public Guardian, request the Public Guardian to become the person responsible for a person in relation to an intimate forensic procedure or a non-intimate forensic procedure in respect of the person if -

(a) the person is a person to whom Part 6 applies; and

(b) the police officer or registered practitioner reasonably believes that the carrying out of the procedure on the person, by a person authorised to carry out the procedure under section 40 of the Forensic Procedures Act 2000 , is necessary in the circumstances; and

(c) the police officer or registered practitioner is satisfied as to the relevant matters in relation to the person.

• (1B) For the purposes of subsection (1A)(c) , the relevant matters in relation to a person are that -

(a) another person, who is not the Public Guardian and who is the person responsible for the person -

(i) has refused to consent to the carrying out of the intimate forensic procedure or non-intimate forensic procedure on the person; or

(ii) is unavailable or inaccessible and his or her consent cannot be sought within a reasonable time; or

(b) there is no person responsible for the person who is not the Public Guardian; or

(c) it is not appropriate in the circumstances for the consent, of a person who is not the Public Guardian and who is a person responsible for the person, to be sought.

(2) If a person is under the guardianship of the Secretary of the department administering the Children, Young Persons and Their Families Act 1997 pursuant to a care and protection order made under that Act, the Secretary of that department is, notwithstanding subsection (1) , taken to be the person responsible for him or her.

(3) The circumstances in which a person is to be regarded as having the care of another person include, but are not limited to, the case where the person, otherwise than for remuneration (whether from the other person or any other source), regularly -

(a) provides domestic services and support to the other person; or

(b) arranges for the other person to be provided with domestic services and support.

(4) A person who resides in a hospital, nursing home, group home, boarding-house or hostel or any other similar facility at which he or she is cared for by some other person is not, by reason only of that fact, taken to be in the care of that other person and is taken to remain in the care of the person in whose care he or she was immediately before residing in the facility.

(5) For the purposes of this section -

(a) a reference to a spouse is to be read as a reference to a spouse who is not under guardianship and with whom the relevant person has a close and continuing relationship; and

(b) a person is taken to be a close family member of another person if the person maintains both a close personal relationship with the other person through frequent personal contact and a personal interest in the other person's welfare; and

(ba) where more than one person would qualify as a spouse, spouse means only the last person to so qualify; and

(c) a person is taken not to be a close family member if the person is receiving remuneration (whether from the person or some other source) for any services that he or she performs for the other person in relation to the person's care; and

(d) a reference to remuneration is to be read as not including a reference to a carer's pension; and

(e) the President may issue guidelines, not inconsistent with this section, specifying the circumstances in which a person is to be regarded as a close family member of another person.

Does BKG have impaired decision-making ability in respect of decisions relating to personal matters?

1. 'Decision-making ability' is defined in s 11 of the Act and s 11(3) sets out when a child has impaired decision-making ability.

11. Decision-making ability > > ... > > (3) For the purposes of this Act, a child is taken to have impaired decision-making ability in respect of a decision unless a registered health practitioner is satisfied that the child has decision-making ability in respect of that decision. > > (4) For the purposes of this Act, a child has decision-making ability in respect of a decision if the child -

(a) is sufficiently mature to make the decision; and

(b) is able to -

(i) understand information relevant to the decision; and

(ii) retain information relevant to the decision for a sufficient time to make and consistently communicate the decision; and

(iii) use or weigh information relevant to the decision; and

(iv) communicate the decision (whether by speech, gesture or other means), including with the provision of support.

(5) For the purposes of this Act -

(a) a person may be taken to understand information relevant to a decision if it reasonably appears, to the person assessing that person's decision-making ability, that the person is able to understand an explanation, of the nature and consequences of the decision, given in a way that is appropriate to the person's circumstances (whether by words, signs or other means); and

(b) a person may fluctuate between having impaired decision-making ability and decision-making ability in respect of a decision.

1. The Tribunal was provided with a HPR from Dr TT, a medical practitioner, who indicates he has known BKG for 5 years and sees BKG once every 3 months. At the hearing, KEG stated that he had 'prefilled' the HPR for Dr TT. KEG stated the doctor had approved the approach taken, and at the subsequent appointment, Dr TT amended the HPR and had also met with BKG. The Tribunal informed KEG that the appropriate course is for the doctor to complete the HPR. KEG accepted that advice
2. Dr TT indicates BKG has an intellectual disability, severe autism spectrum disorder (level 3), anxiety disorder, and epilepsy. BKG is nonverbal and uses 'very limited visual signs using a PoddBook'. In November 2011, BKG was diagnosed with autism. The patient health summary indicates further diagnoses of schizophrenia in 2020 and ADHD in 2021. Attached to the HPR were a number of reports from BKG's treating specialists, including a consultant psychiatrist, paediatrician, neurologist, and behaviour specialist.
3. Dr TT states that BKG has impaired decision-making ability about personal matters because he cannot:

(a) Understand information relevant to the decision because he;

does not have the cognitive ability to understand personal matters and choices available to him.

(b) Retain information relevant to the decision for a sufficient time to make and consistently communicate. BKG cannot 'evaluate the choices and arrive at a decision due to his medical condition' and 'cannot communicate decisions as he is non-verbal, and does not use gestures in a meaningful, consistent way to express'.

(c) Use or weigh information relevant to the decision because BKG;

does not have the cognitive ability to understand information related to personal matters and choices available to him, and evaluate the choices due to ASD and medical condition.

(d) Communicate the decision because BKG;

does not have the ability to communicate decisions as he is non-verbal, and does not use gestures in a meaningful consistent way to express.

1. Dr TT further opines that BKG does not have decision-making ability in relation to personal decisions relating to where he lives, contact and visits to him, care services, medical and dental treatment, health care, NDIS, and restrictive practices. Dr TT states BKG has 'not demonstrated any understanding of issues' ... 'comprehension of available choices, or evaluation capacity or decision-making capability, or expressing his views or decisions to others'. BKG generally 'expresses a dislike for all medical situations, environments and treatments'. 'His parents usually make all decisions related to NDIS supports, interacting with Planners and Support coordinators'. BKG's parents make BKG's decisions.
2. At the hearing, the medical evidence presented was undisputed. The Tribunal accepted the medical evidence and is satisfied that BKG has impaired decision-making ability in relation to personal matters.

1. For the Tribunal to make an order appointing a guardian, we must be satisfied that BKG is currently in need of a guardian. As noted by her Honour Wood J in the matter of J v Guardianship and Administration Board and Anor [2019] TASSC 15 at [81]:

...the terms of s 20(1)(c) require a present necessity, not merely a contingency that may or may not eventuate in the future, refer: Re M & R v Guardianship & Admin Board (1998) 2 VAR 213; Public Trustee v Blackwood (above) per Underwood J at 265-266; Barker v Guardianship and Administration Board [2019] TASSC 8 per Geason J at [16], [21].

2. In the application, KEG explains that BKG needs a guardian because:

[BKG] has Severe Autism Level ll1, Intellectual Disability, Anxiety Disorder, Epilepsy, and is non-verbal. Doctor's assessments have confirmed that [BKG] has no understanding of matters pertaining to his personal well-being, and little decision-making capability. Hence [BKG] needs a Guardian who will ensure that he and his well-being is looked after.

3. At the hearing, KEG further stated a guardianship order was required because:

(a) There is inconsistent and confusing information about whether BKG needs a guardian. There is a mixed understanding in the community about the law and who can be the decision maker. He used the analogy that 'the map is not matching the floor area'. As devoted and caring parents, this causes great concern regarding their son.

(b) KEG had attended a workshop at BKG's school where the guest speaker stated that once BKG turned 18, they, as his parents, would need to make an application to TASCAT for guardianship for 'certain decisions' to be made because BKG would be 'an independent adult' and his parents would no longer be 'authorised' to make BKG's decisions. This caused BKG's parents grave concern, because BKG could not make his personal decisions due to the severity of his autism.

(c) They have engaged support services for BKG and anticipate that when he turns 18 later in the year, they will slowly transition him into supported independent living. They have concerns about what decisions he might make regarding where or with whom to live.

(d) BKG displays behaviours of concern when he attends medical and dental appointments. They experience ongoing problems with his screaming and constant reluctance when they are required to seek assessment and medical treatment at a hospital, GP clinic, and or dental clinic. They anticipate BKG's opposition and behaviours of concern will continue to occur in the future, and they question what ability or power they have to compel BKG to attend the appointments, undertake assessments, examinations, undergo procedures including anaesthetics, and receive treatment generally.

(e) If there is no guardian, they would not be able to make decisions to ensure BKG receives 'the care' he needs.

(f) They have 'heard horror stories' from other parents who have had significant problems and delays in receiving medical treatment due to health professionals questioning who the decision maker is and requiring a guardianship order. Those parents have stressed the importance of having a guardianship order to present to health professionals.

(g) An order would provide clarity and reassurance, especially if they face difficulties during an emergency on a Friday or Saturday night.

(h) He believed 'all these kinds of decisions will be easier to make' if they had a guardianship order.

1. BKG's mother agreed with the submissions of KEG.
2. At the hearing, BKG's support coordinator MQ, stated that she had met with BKG's parents to discuss the application. At that time, she informed them of the role of 'person responsible' under the Act. She provided them with the Tribunal publication regarding persons responsible and medical treatment. She informed them that the Tribunal may not be satisfied that there is a need for a guardian. BKG's parents are NDIS nominees and there 'wasn't any big decisions' that needed to be made. MQ stated there was no need for a guardian to be appointed.
3. During the hearing, the Tribunal explained the role of 'person responsible' and emergency provisions under the Act. Despite that explanation, BKG's parents remained concerned that it would not be sufficient, and a guardianship order was necessary.

1. The Tribunal is not satisfied that a decision is required to be made in relation to BKG's accommodation in the immediate future.
2. The Tribunal finds that BKG has a NDIS nominee, and his parents are making decisions in relation to the support services he requires. A guardian is not required for that to occur.
3. Based on the evidence we heard at the hearing, the Tribunal finds that it is likely that medical decisions will need to be made for BKG, specifically in terms of medical treatment for his diagnoses of autism, mental health conditions, and epilepsy. The Tribunal accepts that BKG is supported by many specialists.
4. In the event BGF were to require urgent medical or dental treatment, s 40 of the Act states that:

Medical or dental treatment may be carried out on a person to whom this Part applies without consent given in accordance with this Division if the medical practitioner or dentist carrying out or supervising the treatment considers the treatment is necessary, as a matter of urgency - > > (a) to save the person's life; or > > (b) to prevent serious damage to the person's health; or > > (c) except in the case of special treatment, to prevent the person from suffering or continuing to suffer significant pain or distress.

5. The Act, by virtue of s 43, enables a person to provide substitute consent to medical and dental treatment for a person who is not capable of giving consent to treatment themselves. This usually negates the need to appoint a guardian with the power to make medical and dental treatment decisions.
6. The Tribunal finds that BKG's parents, as close family members, are ready, willing and able to be person responsible. KEG and OG presented as capable and effective advocates for BKG and are willing to be his person responsible. To be very clear, s 43 of the Act authorises KEG and OG to be person responsible for BKG. Other people in BKG's life may also be person responsible and provide consent to medical treatment if they too come within the definitions of person responsible under s 4 of the Act.
7. Similar issues were addressed in the Tribunal decision of MNX (Application for Guardianship) [2023] TASCAT 211, albeit under the previous s 4 person responsible definition under the Act; however, the decision remains relevant. In that decision, the Tribunal stated at [48]:

Whilst understanding OX's concerns that in dealing with health professionals it is possible she may encounter someone who is not privy to her authority as a person responsible for her daughter, this is not a basis on which the Tribunal could make an order. In the circumstances of MNX as presented to us, a guardianship order providing authority to OX to make medical decisions for her daughter would provide no greater authority than her current position as person responsible. As such, there is no current need for an order in this domain of MNX 's life.

8. Given KEG and OG qualify a BKG's person responsible and, as such, can provide substitute consent for medical treatment on BKG's behalf as contemplated by the Act, we are not satisfied that there is a current need for a guardian to be appointed for BKG.
9. At the hearing, we emphasised that we in no way misunderstood or diminished the concerns raised by BKG's parents that had led KEG to seek the appointment of OG as the guardian of BKG, their son. It is entirely understandable that a parent of a child with severe autism and other conditions would want every necessary authority to protect their child and overcome possible obstacles. However, the Act makes it clear that orders should only be made when there is a need and there are no other less restrictive means to meet the person's needs. It is clear KEG has been a powerful advocate for his son and will continue to be so. A situation may arise in BKG's future that provides a clear and imminent need for guardianship authority. If such circumstances were to arise, BKG's parents may make a further application for guardianship, or if necessary, seek emergency orders pursuant to s 65 of the Act.
10. In the order, the Tribunal provided a notation to assist BKG'S parents to overcome any barriers in being recognised as BKG's person responsible and to provide clarity for medical and health professionals in relation to s 4 of the Act.

1. The Tribunal made the following order, notation and direction:

(a) The guardianship application concerning [BKG] is dismissed.

NOTATION:

The Tribunal dismissed the application for guardianship on the basis that there was not a need for a formal guardianship order. The reason being because [BKG's] parents, [KEG] and [OG] are recognised as 'persons responsible' under the Guardianship and Administration Act 1997.

THE TRIBUNAL DIRECTS:

The Tribunal Registry to send [BKG's] parents, [KEG] and [OG] a copy of the TASCAT publication, Person Responsible - Consent to Medical and/or Dental Treatment.