Guardianship and administration - Impaired decision-making ability - Need - Promotion of personal and social wellbeing - Suitability for appointment - Guardianship and administration orders made.

Guardianship and Administration Act 1995; ss 3, 5, 11, 20, 21, 51, 54.

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

This decision has been anonymised for the purpose of publication

1. KET is a young adult who lives with his father, ET, on the West Coast of Tasmania. On 5 November 2025 the Tribunal received an application for guardianship from ET. The Tribunal also received from the Office of the Public Guardian an application for administration in relation to KET dated 24 December 2025. The Tribunal also received a further application for guardianship and administration for KET from ET that was dated 2 January 2026, but which was made on an out-of-date application form.
2. In a directions hearing on 19 November 2025 the Tribunal appointed a separate representative for KET. In an interlocutory emergency hearing the Tribunal appointed the Public Guardian as guardian of KET with the power to make substitute decisions for particular matters. The emergency interlocutory order was extended on 22 December 2025 for a further 28 days.
3. On 24 December 2025 the Tribunal appointed separate representation for KET in relation to the administration applications.
4. The administration and guardianship applications were listed for hearing before the Tribunal in Burnie on 16 January 2026.
5. At the conclusion of the hearing (and subsequently) the Tribunal made orders to appoint the Public Guardian as limited guardian for KET, and appointing ET as limited administrator for KET.
6. ET has requested reasons for the decision, and these are the reasons.

1. The appointment of guardians and administrators is governed by the Guardianship and Administration Act 1995 (the Act). In particular, ss 20 and 51 of the Act deal with the respective matters that the Tribunal must be satisfied about before it can make a guardianship order (s 20) or an administration order (s 51). These sections require the Tribunal to be satisfied;

(a) That the person has impaired decision making ability in respect of decisions relating to personal (in the case of guardianship) and/or financial (in the case of administration) matters; and

(b) That the person is in need of a guardian and/or administrator; and

(c) That the Tribunal is satisfied that the order will promote the person's personal and social wellbeing.

1. Section 3 of the Act defines 'financial matters' and 'personal matters' (s 11 of the Act defines 'decision making ability').
2. When considering whether there is a need for the appointment of a guardian or administrator the Tribunal is required by s 20(2) and s 51(2) of the Act to consider the wishes an preferences of the person, whether the needs of the person could be met by less restrictive means of the person's freedom of decision and action and the wishes and preferences of any close family members, carers or other significant persons.
3. The ways in which a person's 'personal and social wellbeing' can be promoted are set out in s 5 of the Act.
4. Where the Tribunal is satisfied that an order appointing a guardian or administrator ought to be made the Tribunal must go on to consider the eligibility of the guardian under s 21 or the administrator under s 54 of the Act.
5. When making its decision the Tribunal must observed the principles contained in s 8 of the Act.

1. ET attended the hearing by audiovisual link, as did CM who is the daughter of ET, and the sister of KET. Ms Morgan, who had been appointed as separate representative for KET also attended by audiovisual link. Representatives for the Public Guardian, Ms Hillier, and for the Public Trustee, Ms Griffin, attended the hearing in person.
2. KET did not attend the hearing.
3. The documents that were before us were voluminous. The panel had read all the documents filed in relation to the applications. We have referred in this decision to the documentary materials to which we had regard in making our decision.

1. The Tribunal had before it a Health Practitioner Report in relation to guardianship prepared by Dr A Pillai, Consultant Psychiatrist, dated 2 January 2026 as well as a psychiatric report by Dr Pillai of the same date, and a further psychiatric report by Dr Pillai dated 8 January 2026.
2. In the Health Practitioner Report Dr Pillai indicated that he had known KET for 11 months and saw him every 2-3 months. He said he had last seen KET via telehealth on 12 December 2025. Dr Pillai indicated that KET's current medical conditions are:
   • Autism Spectrum Disorder (ASD) Level 3.
   • ADHD
   • Severe speech and language delay.
3. It was Dr Pillai's opinion that KET lacked decision making ability in relation to a number of personal matters. Dr Pillai considered that, because of underlying developmental issues KET is unable to understand information relevant to decisions, retain information relevant to the decision for sufficient time to make and consistently communicate the decision, use or weigh information relevant to the decision and communicate the decision. In relation to the decisions about specific personal matters Dr Pillai considered that KET does not have decision making ability about where he lives, accessing care services, making decisions about NDIS, and accessing medical and health care treatment. Dr Pillai considered that KET does have capacity to make decisions about people with whom he has contact or visits.
4. Dr Pillai expanded on his opinion in relation to KET's impaired decision-making ability relating to personal matters in the report dated 2 January 2026.
5. In the report dated 8 January 2026 Dr Pillai also considered KET's capacity to manage his own financial affairs and indicated that it was his clinical opinion that KET did not have the capacity to manage his financial affairs including managing or maintaining a bank account, paying bills or account, budgeting for personal needs, or understanding financial obligations or legal requirements.
6. As with Dr Pillai's opinion in relation to decision making ability relating to personal matters, Dr Pillai repeated that he considered KET did not understand basic financial legal concepts, could not retain information relevant to financial decisions, could not weigh options or consequences and cannot communicate a consistent or informed financial decision, all of which impairments are directly attributable to severe developmental disabilities.
7. Dr Pillai's opinion was accepted by the participants in the hearing, and ET gave some oral evidence in relation to his own observations regarding KET's capacity to make very simple decisions by way of, for example, day to day choices about eating and drinking.
8. Having regard to the medical and oral evidence before the Tribunal we were satisfied that KET is a person who has impaired decision-making ability in respect of personal matters including where and with whom he lives, access to services, accessing NDIS, and medical and dental health care. We were also satisfied that KET is a person who has impaired decision-making ability in respect of financial matters, including day to day financial requirements and more complex financial decisions.

1. ET gave evidence that KET has a separate bank account into which he receives a fortnightly payment of $650 from Centrelink. ET said that KET has no concept of money and if he were, theoretically, to be holding a large bundle of notes he would be just as likely to drop them or let them blow away as take care of them. ET says he encourages KET to use a bankcard to make day to day purchases to support KET being able to buy things like food and drink, but he has no overall concept of money. ET has had oversight of KET's bank account.
2. KET's wishes and preferences were not ascertainable, but having regard to the medical opinion of Dr Pillai contained in the materials before us, and the oral evidence from ET, we are satisfied that there is a need for an administrator to be appointed to have oversight of KET's pension and to assist him with management of the pension and the bank account in KET's name, which appears to be his only asset.
3. ET noted that KET has some savings in his bank account which have accumulated from receipt of the pension.

1. In relation to KET's health requirements being appropriately met, ET gave evidence that all of KET's medical and dental care needs are being met and that ET has established a good rapport with treatment providers and a hospital. In particular he said that the hospital has been receptive and accommodating in relation to KET's particular needs arising from a trauma background. He said that he has in the past been complimented by KET's level of dental hygiene.
2. It appears to us that KET's overall treatment needs are being well managed by ET acting as KET's person responsible as contemplated by ss 39(1) and 43 of the Act and that the status quo is likely to continue.
3. Bearing in mind the requirement that the Tribunal in performing its function under the Act must consider the adoption of the means which is the least restrictive of a person's freedom of decision and action, we do not consider there is a need for a guardian to be appointed to make substitute decisions on behalf of KET regarding his medical and dental treatment needs.
4. Whilst we have found that KET lacks capacity to make decisions in relation to his living arrangements, we note that the current arrangements appear to be settled. ET gave evidence, which was supported by Dr Pillai's opinion, that KET has been demonstrably more settled since the move to Tasmania and commencing to reside on the West Coast. On behalf of the Public Guardian, Ms Hillier noted that, during the period that the emergency guardianship has been in place, there have been no suggestions that any decisions need to be considered in relation to making any changes to KET's current living arrangements.
5. In the circumstances we find that there is no need for us to make any order at this time appointing a guardian to make decisions in relation to KET's accommodation.
6. That leaves the question of whether there is a need for a guardian to be appointed in relation to decisions regarding KET's access to services and NDIS. KET's wishes and preferences were not ascertainable in relation to this question.
7. The evidence before us was that there had been a significant hiatus in KET being able to access funding through NDIS. We will refer to this in more detail below. The Office of the Public Guardian, in its report to the Tribunal, provided in accordance with the Emergency Guardianship Oder dated 27 November 2025, noted

[KET's] access to services is still being resolved through ongoing discussions with the NDIS and the progressive re-engagement of supports

[KET] has a reasonably comprehensive support package, but it seems to have faltered due to administrative breakdown.

1. ET advised us that he has arranged supports for KET to facilitate community access, but that it is ET who has been paying for those services.
2. It appears that the situation regarding KET's access to his NDIS funding arose in circumstances where the NDIA had declined to accept ET as plan nominee for KET. Documents filed by ET included an email from the Investigation and Conciliation Service of the Australian Human Rights Commission to ET dated 31 October 2025 which stated, in part:

NDIA have confirmed that they have declined your requests to be appointed a plan nominee, included as noted in a letter to you dated 14 March 2024.

3. ET said that his application to be appointed plan nominee had been rejected because he had been unaware of certain requirements regarding the involvement of a Behavioural Support Practitioner for KET. He said that after he became aware and complied with the requirements, the NDIA still refused to appoint him. ET gave evidence that from that time KET had been subjected to discrimination by the NDIA, and that he has legal proceedings on foot in the Federal Court in relation to that alleged discrimination.
4. A pre-hearing direction was made by the Tribunal for ET to file a copy of the correspondence from the NDIA to him dated 14 Match 2024. The direction was not complied with, so we were unable to consider the NDIA's expressed reasons for declining the appointment.
5. The Public Guardian noted that there were more services coming on board for KET in the near future, and that the Public Guardian had successfully advocated for a transition from agency management of KET's NDIS funding to plan management in a number of areas.
6. There was some disagreement between ET and the Public Guardian in relation to the extent that the involvement of the Public Guardian through the emergency guardianship orders had begun to facilitate access to NDIS funding. ET maintained that the only reason that funding access had recommenced was that the NDIA had received a notice of a court date in the discrimination proceedings that ET had commenced. On the balance of probabilities, we find that it is more likely that the recommencement of communication with the NDIA, and subsequent access to KET's NDIS funding results from the involvement of the Public Guardian through its advocacy and expertise as emergency guardian, rather than the allocation of a court hearing date in ET's discrimination proceedings against the NDIA.
7. There were also some disagreements between ET and the Public Guardian as to who had been responsible for making arrangements in relation to particular supports. We do not need to a make any factual findings in relation to those issues, but note that it appears both parties may each have been trying to make decisions in the same space regarding supports for KET.
8. As referred to above, the adoption of the 'least restrictive means' must be considered where the Tribunal is determining whether there is a need for an order to be made. In many circumstances, the appointment of a NDIS plan nominee for a person who has impaired decision-making capacity regarding services will be a sufficient and less restrictive means, and there will be no need for the Tribunal to make an order appointing a guardian to make decisions regarding services and NDIS.
9. In the present situation, however, where it is apparent that there is no person appointed as NDIS plan nominee for KET, and that there is a 'reasonably comprehensive' NDIS support package available to KET that has not been accessed for an extended period of time (until the involvement of the Public Guardian under the emergency order) we determine that there is a need for a guardian for KET to be appointed with the power to make decisions about care services including the NDIS.

1. We are satisfied that the appointment of an administrator to make decisions in relation to the management of KET's pension will promote KET's personal and social wellbeing, by ensuring that his personal funds are available to be spent on his needs and wants, whilst maintaining some oversight of his personal savings in the longer term. An administrator will also be able to liaise with Centrelink about KET's pension if any matters arise that require attention.
2. We are satisfied that the appointment of a guardian with the power to make decisions about access to services, including NDIS will promote KET's personal and social wellbeing. It is appropriate that KET has access to the funds that are available under NDIS to support him. Access to NDIS funding will maximise the supports available to KET, but also alleviate the significant financial burden that has been carried by ET who has been personally covering the cost of supports used by KET.
3. Because of the high level of involvement of ET in KET's care, we also consider that alleviation of some of the caring and supporting load that has been carried by ET, (who described, for example, having experienced significant levels of sleep deprivation) will promote KET's personal and social wellbeing by reducing the risk of ET experiencing carer fatigue and burnout.

Administration - who to appoint and for how long?

1. Where the Tribunal decides to appoint an administrator, the Tribunal must not make an order without considering the eligibility of a proposed administrator under s 54 of the Act. The proposed administrator must have consented to the appointment in accordance with s 54(3). The Tribunal must be satisfied under s 54(2)(b) of the Act that the proposed administrator understands their obligations and duties, will act in accordance with the requirements of the Act, and is a suitable person to act as administrator.
2. ET confirmed that he understood the role of an administrator. He was confident that he would be able to fulfil his obligations under the Act. We were satisfied of the matters under s 54(2)(b). We noted that ET has effectively been looking after KET's bank account into which KET's pension is paid.
3. Although we decided to make an order appointing ET as administrator for KET to manage any pension or benefit entitlement, we were unable to do so at the time of the hearing because ET had not filed the written declaration required by s 54(3) of the Act, and had not, therefore, consented to act as administrator for the purposes of s 54(2)(a) of the Act.
4. This was remedied after the conclusion of the hearing when ET provided his written declaration under s 54(3) to the Tribunal, and orders were subsequently made for a period of three years.

Guardianship - who to appoint and for how long?

1. Where the Tribunal decides to appoint a guardian, the Tribunal may only appoint a person who is eligible for appointment under s 21(2), or, if the Tribunal is satisfied that there is no person eligible for appointment under s 21(2), it may appoint the Public Guardian.
2. One of the matters relevant to the Tribunal's consideration of the eligibility of a proposed guardian is whether that person is a suitable person to act as guardian in respect of the personal matters specified in the order. The matters that the Tribunal must take into account are set out in s 21(4) of the Act.
3. Having considered all of the matters under s 21(4) that we are required to take into account, we have concluded that ET is not suitable, at this time, for appointment as the guardian for KET in relation to decisions relating to services, including NDIS.
4. Prior to the appointment of the Public Guardian under the emergency orders, the overall situation regarding KET's supports was unlikely to be financially or physically sustainable, where ET was himself paying for support services for KET for eight hours during the day, but attempting to cover everything else with no respite.
5. Despite this, the relationship between ET and the NDIA seems to have reached an impasse in terms of communications and access to funding for KET. We reject ET's assertion that the only reason that NDIS funding is now becoming available is because he secured a court date in his legal proceedings against the NDIA. We think it is clear that the involvement of the Public Guardian has facilitated KET being able to access his NDIS funding.
6. Because ET did not comply with the Tribunal's direction to file a copy of the NDIA's decision not to appoint ET as KET's plan nominee (and did not suggest there was any reason why he was unable to do so), we have not been able to give any consideration to the NDIA's expressed reasons for that decision. In accordance with the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 we conclude that provision of that document would not have assisted ET's assertions about the reason his appointment was refused_._
7. We have concluded that, for a relatively significant period of time, ET appears to have been unable to facilitate meaningful engagement with the NDIA to enable KET to access his assessed NDIS benefit.
8. We consider KET's personal and social wellbeing will be best served in the foreseeable future by the progressive re-engagement of services and support using KET's NDIS package. We also consider, having regard to the evidence we have heard, that this is unlikely to be facilitated by ET, and far more likely to be achieved by the ongoing involvement of the Public Guardian as limited guardian for that purpose.
9. It is for that reason that we decided to appoint the Public Guardian as guardian for KET, with the power to make decisions in relation to access to services, including NDIS. We decided to make that order for a period of one year only. Much is likely to change for KET in the next twelve months, and it will be appropriate for the Tribunal to again consider the appointment of a guardian for him in the light of those changed circumstances.

1. On 16 January 2026, we ordered that the Public Guardian (Tas) is appointed as guardian of KET until 15 January 2027 with the authority to make substitute decisions for the provision of care services to KET, including NDIS services.
2. On 16 January 2026 we dismissed the application for administration that had been made by the Office of the Public Guardian on 24 December 2025.
3. On 21 January 2026, we ordered that ET is appointed as administrator of KET until 20 January 2029 to manage any pension or benefit entitlement including any matters relating to the review, management or expenditure of such pension or benefit.
4. On 21 January 2026, we also ordered that ET, as administrator is to lodge with the Tribunal registry a financial summary relating to the estate of KET no later than 6 weeks from the date of the order.