Appointment of the Public Trustee and the Public Guardian continued for a further 3 years.

Guardianship stream - review of guardianship order - review of administration order - suitability - family conflict - weight to be afforded to subject person's will and preference - conduct in hearing of proposed guardian corroborative of evidence of unsuitability - proposed guardian found not suitable.

Guardianship and Administration Act 1995 (Tas); ss, 3, 8, 20, 21, 51, 52, 54, 56, 57, 61, 67, 68.

KNO (Review of Enduring Power of Attorney) [2019] TASGAB 25;

O'Connell v The State of Western Australia [2012] WASCA 96;

Public Guardian v Guardianship and Administration Board [2011] TASSC 31;

RP & JP [2007] FMCAfam 654;

VHX v JZT [2024] VSCA 238.

The decision has been anonymised for the purpose of publication.

1. BSH is a 75 year old man residing in an aged care facility in Southern Tasmania. In 1998 he sustained a brain injury from a cycling accident. BSH experienced two strokes in 2004 and 2016 and was diagnosed with vascular dementia in 2014. There is considerable disagreement between KI, (the mother of BSH's youngest child) and the remainder of BSH's family with respect to substituted decision making dating back to at least 2016. BSH has been the subject of no less than 10 hearings before the Tribunal and the former Guardianship and Administration Board (GAB) since 2016.
2. The proceedings before us were end of term reviews of the existing guardianship and administration orders. Apart from BSH himself, there was general consensus that the appointment of the Public Trustee as administrator should continue. In relationship to guardianship, whilst there was consensus that the order should continue, there was dispute as to whether the Public Guardian should continue in the role, or be replaced by KI. KI sought appointment. Her position was opposed by BSH's other family members who participated in the proceedings, the Public Guardian, and by the care facility where BSH currently resides.
3. We determined to continue the appointments of both the Public Trustee and the Public Guardian. We concluded that KI was not suitable to be appointed as BSH's guardian primarily because we were not satisfied that she understood, or could comply with, the obligations and duties imposed upon a guardian.

1. In 2016, BSH began living in a residential aged care facility, and his two adult daughters lodged the appropriate instruments to act as his attorney and enduring guardian.
2. In 2016, KI applied to the former GAB, challenging the validity of the instrument which had appointed BSH's daughter, CC, to act as his guardian. KI also challenged the instrument appointing another of BSH's daughters, BPH, as his power of attorney. The former GAB determined BSH did not have the capacity to make either instrument at the time they executed and appointed the Public Guardian as guardian for BSH and BPH as administrator on 13 October 2016 for a period of 3 years.
3. In 2017, applications for review of the orders were filed with the former GAB. Following a hearing conducted on 22 March 2017 the GAB appointed the Public Trustee to act in place of BPH as BSH's administrator but continued the appointment of the Public Guardian. These orders were subsequently reviewed three times between 2018 and 2021, and on each occasion, the Public Guardian and Public Trustee were reappointed.
4. It would seem that similar issues as before us now were ventilated at the hearing on 18 November 2018 before the former GAB, with the statement of reasons for that decision reflecting that:
   • BSH had changed his general practitioner three times since the orders commenced in 2016.
   • There had been a communication breakdown between KI and the Public Guardian with KI not sharing information such as recent admissions to hospital or changes to who is [BSH]'s treating general practitioner.
   • KI wished to be BSH's administrator and guardian, while BSH's family wished these roles to be undertaken by the Public Trustee and the Public Guardian
5. Ultimately, the former GAB determined that KI should not be appointed as BSH's guardian noting:

[t]he Board has no confidence that [KI] would be able to work with the Public Trustee if she was appointed guardian...The Board believes that there would be potential of significant conflict and the relationship between the Public Trustee and [KI] would become irretrievably broken down if the [KI] [sic] was appointed guardian.

6. Turning to the current proceedings before us, on 8 October 2024 the Public Guardian filed an application seeking for their appointment as guardian, due to expire on 17 November 2024, be continued. A directions hearing was held on 13 November 2024 at which time a separate representative was appointed for BSH and the Public Guardian's appointment was continued until the application was finally determined.
7. On 26 November 2024 KI lodged a "Part C" form with the Tribunal asserting her suitability to be appointed as guardian for BSH and an email making clear she was seeking such appointment.
8. On 5 December 2025 the Public Trustee filed an application seeking for their appointment, due to expire on 20 December 2024, be continued.
9. Two further directions hearings took place on 17 December 2024 and 15 January 2025. These were primarily to clarify the evidence before the Tribunal, and more specifically, the health professional report(s) associated with each review application. Amongst other orders and directions made, the Tribunal joined KI and BPH as parties to all proceedings.

1. The hearing into both applications was conducted at the TASCAT hearing rooms in Hobart. BPH, TI (BPH's support worker), CC, , KC (BSH's sister), CH (BSH's mother), Alena Furdan from the Office of the Public Guardian, Samuel Wong and Fiona Sullivan from the Public Trustee attended the hearing in person. Attending via video link were KI, KI's two support people, DE and GY, who both attended separately to KI and each other, a representative from the aged care facility, OG, and BSH's brothers, LH, and SH.
2. It is understood that BHS's mother, three siblings and two of his children agreed with BPH's views as put forward during the hearing, each being represented as an author to written submissions on behalf of BSH's family:

We, the undersigned family members of [BSH], are writing to respectfully request that TASACT appoint an independent Public Guardian for [BSH] under [the Act]. We are deeply concerned about [BSH]'s welfare and strongly believe that an impartial guardian is essential to safeguard his best interests. > > ... > > The existing Guardianship and Administration order is being contested by [KI], who seeks to assume the role of Responsible Person or Guardian. As [BSH]'s immediate and extended family - including his mother, siblings, two daughters, and son - we are unanimous in our opposition to this change.

3. Pursuant to an order of the Tribunal on 13 November 2024, Mr MacGregor from Legal Aid Tasmania appeared as BSH's separate representative.
4. BSH did not participate in the hearing. We were advised by his separate representative and by OG, that he was aware of the hearing but did not wish to attend. No parties raised any concerns with us proceeding with the hearing in the absence of BSH and we proceeded to do so.
5. The hearing papers for this matter were extensive, with 58 documents totalling 337 pages. The hearing papers consisted of the documents filed by the parties, together with medical reports filed with the Tribunal and former GAB since 2016. The various medical reports included:
   • the most recent Health Practitioner Report by Dr SD, one previous Health Practitioner Report dated 6 October 2024, and seven previous Health Care Practitioner Reports from 18 August 2016 - 14 November 2021;
   • four occupational therapy reports from 11 July 2016 to 8 October 2018;
   • a medical report dated 25 September 2018;
   • two clinical psychologist reports dated 12 March 2017 and 15 May 2018;
   • a list of BSH's medication dated 13 January 2025;
   • a mini mental state examination dated 5 October 2016;
   • a neuropsychological assessment report dated 6 August 2014 and a Montreal cognitive assessment report dated 30 June 2016.
6. There were also submissions of the parties, the applications to review both guardianship and administration, the administrator's annual report dated 5 November 2024, the Guardian's annual report dated 26 August 2024, the Residential Aged Care Deposit statement dated 30 October 2024, previous orders made by the Tribunal and GAB, and a statement of reasons by GAB from 2018.

1. It was unfortunate that we did not have the benefit of BSH's participation in the hearing.
2. We did however have the benefit of the reported interactions that Mr MacGregor had with BSH in his role as an independent separate representative. Mr MacGregor advised that he met with BSH on 13 January 2025:

I attended with one of my colleagues from Legal Aid and we went through those matters and I'm happy to put forward his views today. I should note that I didn't seek to meet with [BSH] - I haven't sought to meet with him since then. In particular since the provision of those further documents and the reason for that is that when I first met with [BSH] and I'll elaborate on this further, [BSH] from - in my opinion, and based on our discussions, he had very limited understanding of the nature of the applications.

3. On the issue of any views BSH expressed on the administration proceedings, Mr MacGregor advised:

...and so just to clarify when I spoke to him about the administration order, I did explain both the impaired decision-making ability test and also the need test in general terms. And I asked [BSH]'s views, and he said that he can make decisions for himself. I asked what his memory was like. He said he remembers a bit. I asked what he thought about the diagnoses of vascular dementia and also the acquired brain injury and he replied to both of those saying he "is a bit nuts". So, it wasn't really clear if he agreed or disagreed. > > I asked him on several occasions if he believed he needed an administration order and he said that he could make decisions for himself. He said that he spends his money as good as anybody. And that's really - and then I should just elaborate. When I asked about his finances, his expenses, his bills, he wasn't able to - he just said he did not know. But again, I appreciate [KI]'s comments that he probably didn't know, given he hasn't been involved in those matters. He did mention that he maybe has a car or a ute, but he wasn't sure where. But that was really the extent of it. > > So, in summary from - based on my discussions with [BSH] it was my understanding that he disagreed with the need and also his impaired decision-making ability.

4. Turning to the issue of guardianship, Mr MacGregor reported his conversation with BSH as follows:

So, similarly to our conversations about administration I explained to [BSH] about what the application was about in relation to guardianship. And it was in particular - I referred to medical decisions. [BSH]- he didn't - I asked if he had a guardian, he didn't think he did. I asked if he knew Ms Furdan, he didn't. He said that he didn't know who that was. I explained that she was his current guardian. He said he had not met her before. And I should note that was the same with the public trustee when I asked about administration. > > I asked, again noting that [BSH] was opposed to having a guardianship order, or really anyone making decisions for him. When I asked - when I explained that if he was to have someone appointed as a guardian who would he want? He mentioned that - sorry just bringing it up. He said that he would want his father, [HH]. I understand that was his father and then he said [KI]. I explained that the Tribunal can appoint a family member or someone independent like the public guardian and I again asked his views, and he said he wants [KI], as he said he trusts her.

5. Following this recount, KC advised that BSH's father, HH, had died approximately 21 years ago.

Status of KI and her conduct in the proceedings

1. Evidence before us indicated there had been a relationship between BSH and KI since 2006. Dr Sigrid Denehey, clinical neuropsychologist and clinical psychologist, provided the following relationship comments in her report from 2014:

[BSH] reported that he spent most of his working life in the electrical trade before he met his second wife, [IK], with whom he created a pottery business. [IK] reportedly "kicked the bucket" in 2004 from breast cancer, and he reportedly struggled immensely from a psychological perspective. He has lived alone since that time, although he did commence a relationship with [KI], an adult education teacher, with whom he has a seven year old daughter. [BSH] and [KI] are no longer in a relationship.

2. KI describes herself in various documents before us as "[BSH]'s Legal Significant Other". In her written submissions received by the Tribunal on 24 February 2025 she states as follows:

Admittedly, our relationship has not been without its challenges. Initially it was merely a friendship after reacquainting when we met up at Adult Education Computer Classes in 2006. We discovered we had common interests, and our pasts had overlapped in various ways throughout our lives. Later as consenting adults, [JH] was conceived, and we welcomed her with love and adoration. In the following years we agreed to live in separate houses, to allow [BSH] to continue running his pottery business. > > ... > > Then in 2016, when we decided it was the right time to start making plans for cohabitation, the unthinkable happened and [BSH] suffered a second stroke. > > [BSH]'s family have heavily influenced most of our trails (sic) and even instigated several break ups. With constant derogative remarks made about myself being a "Gold Digger". Which is totally ridiculous as I am indeed a property owner and we were of equal capital assets at the time of meeting.

3. At the hearing, KI in response to questioning from Mr MacGregor advised:

The reason we never married, and we were only engaged and I'm his legal significant other is because it is his [BSH]'s dying wish to be buried with [IK]. > > ... > > And we've accepted that and we've - it's a joint decision and that's his dying wish.

4. BSH's family, through the statement submitted by BPH, disputes KI's relationship status:

[KI] claims to be [BSH]'s "common wife" and legal significant other. However, there is no evidence to support this claim. [BSH] and [KI] have never:

• Shared living arrangements
• Established financial interdependence; or
• Publicly acknowledged their relationship as a couple.

Their only undisputed connection is that they share a child.

1. We elected in the hearing not to seek ventilation of this issue. This was because KI had been joined as a party to all proceedings, irrespective of her exact relationship status, there was no apparent dispute that she is a "close family member" as defined in s 3 of the Guardianship and Administration Act 1995 (Tas) (the Act), providing certain significance to her views on the proceedings. The only other point of relevance in the proceedings relates to the operation of Part 6 of the Act and the "person responsible scheme" and this is dealt with later in these reasons.
2. It is not unusual for the Tribunal, particularly in the Guardianship stream given the very personal nature of proceedings, to experience a level of conflict between parties in hearing proceedings. However, it is a matter of note that we comment on KI's conduct in the proceedings as her conduct was directly relevant to the matters in determination, primarily, her suitability to be a substitute decision maker for BSH.
3. KI's conduct at the hearing, and the contents of her filed submissions, demonstrated a significant lack of respect towards BHS's other family members, the Public Guardian, and those who provide direct care to BSH at his care facility.
4. KI did not limit her questioning of participants in the hearing to relevant issues, despite being directed to do so by us on several occasions. Instead, KI invariably made statements about the character of other parties to the proceedings which were not relevant to the matter at hand. By way of example, when invited to ask questions of the representative of the Public Guardian following her evidence on issues pertaining to BSH's healthcare, KI advised the representative that "I don't trust you." KI later endeavoured to impugn that same representative's character, suggesting she was, or had been, the subject of unrelated legal proceedings in another jurisdiction, an allegation which caused the representative clear and immediate distress. Further, in her written statement, for example, she referred to one of BSH's brothers as "Mr Bubbles".
5. In her written submissions, and through her statements, KI also illustrated a fixation on alleging multiple breaches of the Criminal Code Act 1924 by various people in relation to BSH's care, or in KI's view, failure to provide care. Despite being advised that the Tribunal has no role in adjudicating on such legislation, she continued to refer back to it on multiple occasions.
6. Given the application before us, it was our role, amongst other things, to assess the suitability of KI to be appointed as a guardian as she was the only party wishing to be appointed as BSH's guardian. KI was requested by us, on several occasions, to refrain from making irrelevant, derogatory and inflammatory statements about the participants in the hearing. Given she was unrepresented, we also warned her that her conduct could lead us to conclude that it corroborated some of the evidence before us as to her unsuitability for appointment (see: O'Connell v The State of Western Australia [2012] WASCA 96 [109] ; RP & JP [2007] FMCAfam 654 at [22]; and KNO (Review of Enduring Power of Attorney) [2019] TASGAB 25 at [36]).

1. On 1 September 2024, significant amendments were made to the Act. These changes removed the requirement to consider the "best interests" of the represented person, replacing it with a focus on promoting a person's "personal and social well-being". This marks a shift in the legislation from a "best interests" approach to one that prioritises a "rights, will, and preferences approach".
2. The power of the Tribunal to review guardianship and administration orders is derived from s 67 of the Act, while s 68 outlines actions the Tribunal may take after undertaking a review which include varying, continuing or revoking an order.
3. Sections 20 and 51 of the Act set out the criteria which must be met before the Tribunal can continue a guardianship or administration order. These require the Tribunal to be satisfied that the person:
   1. has impaired decision-making ability in respect of decisions relating to personal and/or financial matters; and
   2. is in need of a guardian and/or administrator; and
   3. the Tribunal is satisfied that the order will promote the person's personal and social well-being.
4. When determining the element of need, the Tribunal must consider: the wishes and preferences of the person; whether need can be met by other means less restrictive of the person's freedom of decision and action; and the wishes and preferences of any close family members, carers and other significant persons.
5. When making its decision, the Tribunal must observe the principles contained in s 8 of the Act.
6. If the Tribunal is satisfied that an order should be made, then the criteria provided in ss 21 and 54 must be applied to determine the suitability of the person seeking appointment. In accordance with those provisions, the Tribunal may only appoint the Public Guardian or Public Trustee if satisfied there is no person eligible for appointment.
7. An adult will be eligible for appointment if they consent to take on the role, and in the Tribunal's opinion, the person:
   1. understands their obligations and duties and will comply with the requirements under the Act; and;
   2. is a suitable person to act as administrator and/or guardian.
8. Sections 21(4) and 54(4) outline factors the Tribunal must consider when determining suitability, including:
   • the wishes and preferences of the represented person, as far as they can be ascertained;
   • the desirability of preserving significant relationships;
   • the compatibility of the proposed guardian with the represented person and any appointed administrator;
   • the extent of potential conflicts of interest;
   • the preference for appointing someone with a personal relationship with the represented person.

1. The hearing papers contain evidence from at least 8 medical professionals which indicate that BSH has impaired decision-making ability with respect to financial and/or personal matters.
2. The oldest report before us, authored by Dr Sigrid Denehey, clinical neuropsychologist and clinical psychologist, provided us with a baseline as to impairment as far back as 6 August 2014. That report concluded:

Assessment revealed very poor performance largely across the board, with marked deficits apparent in his short term memory (verbal and visual), processing speed, visual scanning/attention and cognitive flexibility (Extremely Low to Borderline range). > > His current level of functioning is beyond that which could reasonably be explained by his diffuse axonal injury alone and has reportedly had a progressive course over the past 18 months. If all other possible medical causes of ruled out, it would appear likely that [BSH]'s deterioration is due to an underlaying mix of Alzheimer's and vascular pathology. > > Given his results, I have significant concerns about [BSH]'s ability to drive and live independently. To that end, provided that you are agreeable, I would recommend that a family meeting take place following your review to discuss some of these issues: guardianship and administration may prove necessary if [BSH] is unwilling to accept the assistance of his family voluntarily.

3. The most recent of these reports is from Dr SD, dated 13 January 2025 which outlines BSH's medical conditions, including a traumatic brain injury and vascular dementia.
4. Dr SD confirmed that BSH has impaired decision-making ability about personal and financial matters. Dr SD observed that BSH responds impulsively to most questions, often with a single word, and struggles with complex questions.
5. At the hearing all parties present agreed that BSH has impaired decision-making ability with respect to personal matters.
6. While KI contested BSH's impaired decision-making ability in relation to financial matters, stating that BSH has "good days and bad days", all other parties accepted the medical evidence and concurred that BSH lacks decision-making ability regarding finances.
7. KI submitted that BSH has decision-making ability, but his lack of control over his finances for some time has contributed to his inability to keep track of his financial details when asked by Mr MacGregor.
8. To support this view, KI referenced the medical reports of QI (psychologist) from 20 April 2018 and Dr EE (Consultant Geriatrician) from 25 September 2018. Dr EE's report does not appear to support KI's submission as it concludes that BSH is unable to make reasonable judgments regarding his personal and financial matters. While this assessment was based on the legislation in place in 2018, we accept Mr MacGregor's submission that these reports, which predate the legislative reforms, remain relevant and can be considered as evidence of impaired decision-making capacity.
9. We acknowledge that QI's report from 2018 states BSH had the capacity to make decisions about his finances and supports KI's submission. However, in a further report dated 14 November 2021, QI revised this assessment, concluding that BSH has impaired decision-making ability.
10. KI also referred us to a Mini Mental State Examination (MMSE) conducted on 5 October 2016, where BSH scored 27 out of 30. However, this result contrasts with a previous cognitive assessment (Montreal Cognitive Assessment) conducted on 30 June 2016, in which BSH scored 11 out of 30. Additionally, Dr. NNT's report dated 3 September 2021 mentioned an MMSE from December 2018, where BSH scored 18 out of 30.
11. Mr MacGregor advised that BSH appeared unaware of how his expenses were managed and could not comprehend the details of his finances. BSH, however, expressed a belief that he could make decisions for himself and disagreed with the suggestion that he had impaired decision-making ability.
12. Based on the consistent and uncontradicted medical evidence, which is a longitudinal history stretching back to 2014, we are satisfied that BSH has impaired decision-making capacity in both personal and financial matters due to his brain injury and vascular dementia, which prevents him from understanding, retaining and using and weighing necessary information for decision-making.

1. For the Tribunal to appoint an administrator, it must be satisfied that BSH is in need of one under s 51(1)(c) of the Act. Section 51(2) stipulates that the Tribunal must consider BSH's wishes, whether less restrictive alternatives could meet his needs, and the preferences of BSH's family and significant others.
2. Mr MacGregor advised us that BSH had indicated that he disagreed there was a need for an administration order and felt he can make decisions for himself.
3. Mr Wong, from the Public Trustee, submitted that there was an ongoing need for an administrator. BSH's expenses include nursing home fees, child support, pharmacy expenses and private health insurance. While some of these expenses could be set up for automatic payment, others require an administrator's involvement.
4. BPH submitted that in her view there was a need for the administrator to continue as she was concerned about BSH being easily influenced and vulnerable to financial exploitation. She also held concerns about BSH's memory and him forgetting to pay bills and incurring late fees as a result should an administrator not remain in place.
5. We understood KI's position to be that she was in support of the continuation of the administration but on the proviso that certain conditions were placed on the order that we will deal with later.
6. We are satisfied there is an ongoing need for an administrator for BSH based on the evidence provided regarding his ongoing financial obligations and vulnerabilities. BSH's expenses, such as nursing home fees, child support, pharmacy costs, and private health insurance, require ongoing oversight and management. The concerns raised about BSH's memory issues and his susceptibility to financial exploitation further support the need for an administrator.
7. In reaching our conclusion we note that there is no less restrictive means by which BSH's financial affairs can be managed and that all of BSH's close family who participated in the proceedings were of the view the order needed to continue. Further, as required, we have taken account of BSH's indication to Mr McGregor that he does not believe he requires an order. However, we have formed the view that BSH's views must be afforded diminished weight in the course of balancing mandatory criteria. This is due to the level of his impairment in terms of his decision-making capacity and the resultant limitations BSH has in understanding the ramifications if he were not to have an administration order in place.
8. The evidence presented demonstrates that an administrator is necessary to protect and enhance BSH's personal and social well-being and to generally ensure his needs are met.

1. At the hearing, all participating parties agreed that a substituted decision-maker should be appointed for BSH regarding personal matters. The parties also sought that the guardian have authority to make decisions related to healthcare, with BPH requesting that the Public Guardian be granted powers concerning BSH's accommodation, should the Public Guardian be appointed.
2. It is clear from the evidence that there are decisions to be made with respect to BSH's healthcare on an ongoing basis. There was contention on matters such as the need for BSH to have ongoing dental care, whether he required a colonoscopy, amongst others. KI also expressed a desire to transfer BSH to an alternative aged care facility, citing dissatisfaction with his current facility.
3. Ms Furdan of the Public Guardian submitted that there was an ongoing need for a guardian to make decisions about BHS's medical matters. Ms Furdan submitted that initially she had considered whether a person responsible could make decisions with respect to medical decisions, however due to the dynamics of BSH's family, including the ambiguity of KI's relationship to BSH, at least in the minds of BSH's other family members, it is not possible to resolve differences of opinion about medical treatment.
4. The issue as to whether a guardian was needed with authority to make decisions as to his accommodation arose during the course of the hearing. In the context of explaining her dissatisfaction with staffing ratios and management at BSH's current care facility, BSH advised that she was in the process of taking active steps to identify alternative accommodation for BSH. She commented:

I've made enquiries of another nursing home, a Christian nursing home, that has good Christian values, on his behalf and he's agreeable to being moved closer to the beach.....

5. BSH's remaining close family members were opposed to any proposal that BSH would move away from his current accommodation.
6. We are satisfied that there is a need for the ongoing appointment of a substitute decision maker for BSH based on the evidence presented at the hearing. Ms Furdan, representing the Public Guardian, provided justification for the ongoing need for a guardian. The inability to resolve differences of opinion within BSH's family, especially concerning medical treatment, was creating significant barriers to making decisions that would promote BSH's wellbeing.
7. Furthermore, concerns were raised about KI's reluctance to accept medical advice and the strained relationship with the aged care facility, which could jeopardise BSH's care and potentially his accommodation. During the course of the hearing, we became aware of BSH's active steps to relocate BSH, a matter strongly opposed by BSH's other close family members. In these circumstances, given we are satisfied that BSH's impaired decision-making is such that he is unable to make such a significant decision, even with support, we are satisfied that there is a current need for a guardian to be appointed with authority to make decisions as to BSH's accommodation.

1. The promotion of BSH's personal and social wellbeing is central to the Tribunal's decision-making process. Following amendments to the Act, the focus has shifted from a "best interests" approach to one that prioritises the promotion of a person's personal and social wellbeing.
2. With respect to an administrator, there was evidence before us that an administrator would ensure that BSH's financial affairs are appropriately managed. This in turn ensures that his bills are paid, he can maintain his accommodation and he would not be at risk of financial exploitation. We are satisfied that the appointment of an administrator would promote BSH's social and personal wellbeing.
3. We are similarly satisfied that appointing a guardian with the appropriate authority to provide substitute medical consent, make healthcare decisions and to make decisions as to BSH's accommodation will ensure that BSH's central needs are properly addressed, and that he is not subjected to decisions that could adversely affect his health and wellbeing.
4. Accordingly, we are satisfied that the appointment of a substituted decision-maker will promote BSH's personal and social wellbeing by ensuring that decisions are made in a way that preserves his dignity and addresses his ongoing personal and financial needs.

1. At the hearing, all parties present agreed that the Public Trustee should be reappointed as financial administrator. No other potential administrator was put forward by the parties.
2. KI submitted that the Public Trustee should be reappointed as administrator but under the provision that they conduct a full audit of BHS's finances over the past seven years with particular attention to the period when BPH acted as administrator.
3. In accordance with s 54(1)(b) if the Tribunal is satisfied that no person is eligible for appointment as an administrator then the Tribunal is to appoint the Public Trustee.
4. We are satisfied that the Public Trustee should be reappointed as financial administrator based on the evidence presented and the agreement among all parties involved. No other potential administrator was proposed by the parties, and in accordance with the relevant provisions under s 54(1)(b) of the Act, we are compelled to appoint the Public Trustee as the financial administrator. This decision ensures that BHS's financial matters will continue to be managed in a transparent and impartial manner, with appropriate oversight in place.

Should directions be made to the Administrator?

1. As noted above, whilst KI supported the continuation of the Public Trustee and administrator, it was on the condition that the Public Trustee conduct:

...a full audit of [BSH]'s financial affairs from the time that he was under the power of attorney and the administration that TASCAT assigned to [BPH]. There needs to be a full audit of the financial affairs and the way she conducted [BSP]'s affairs from the very beginning. And then they were transferred to the Public Trustees. $240,000 of your capital asset being totally wiped off without explanation.

2. KI conceded with us that she had not raised this request or her underlying concerns in her written submissions to the Tribunal.
3. The documentation before us makes clear that KI has raised such concerns previously with the Public Trustee, and with the Ombudsman in the course of making complaints about the Public Trustee. It is notable that there was no evidence or submissions from the Public Trustee indicating that they had any ongoing concerns that BSH's financial affairs had at any stage been mismanaged or the subject of misappropriation.
4. In any event, given the extensive duties and powers applicable to an appointed administrator pursuant to s 56 and s 57 of the Act, in particular, the duty to take possession and care of, recover, collect and administer financial affairs for the represented person (s 56(1)(b)), if the Public Trustee shares any of the concerns raised by KI, they have a duty to investigate and take steps as deemed appropriate.
5. Further, whilst there is no doubt the Tribunal can impose conditions when making or renewing an administration order (s 52(3) and s 61(4) of the Act), such powers are not without limitation. Whilst an appeal relating to guardianship, in the matter of Public Guardian v Guardianship and Administration Board [2011] TASSC 31, Blow J, as he then was, examined the scope of similar powers in relation to guardianship:

[36] In 1995, when Parliament replaced the former Guardianship Board with the present Board and a Public Guardian, it plainly did not intend that the new Board should have the power to determine how the Public Guardian's office should be run, or how the Public Guardian was to perform her functions and exercise her powers in the ordinary run of cases. Otherwise the Public Guardian and her staff could have been made part of the Board's staff. > > [37] It is clear that the legislature intended the Public Guardian to have considerable autonomy. It is significant that, by virtue of s15(6), she is not subject to the control or direction of the relevant Minister in the performance of her functions under the Act. It is also significant that the staff of the Board are subject to the general control and direction of the President of the Board under s9(2), but that the Public Guardian, her deputy, and her staff are not. Whether the Public Guardian is appointed as a full guardian, with all the powers of a parent under s25(1), or as a limited guardian, with limited powers under s26, there is very little in the Act to fetter her discretion as to how she chooses to exercise her power and perform her functions. > > [38] Certain principles have to be observed by virtue of s6 - adopting the means that are the least restrictive of a person's freedom, promoting the best interests of the individual concerned, and giving effect to that person's wishes if possible. However it is left to the Public Guardian to decide how best to give effect to those principles when she exercises the powers of a guardian.

6. We are satisfied that there is no current requirement, nor is it appropriate given the statutory duties and powers applicable to the Public Trustee, for us to make any directions to the Public Trustee as to how they should perform their role as administrator of BSH's estate.

1. There was considerable disagreement between KI and the remaining parties regarding who should be appointed as BSH's guardian.
2. KI sought to be appointed as BSH's guardian and lodged with the Tribunal a written declaration "Part C - Suitability for appointment and consent to act as guardian if appointed". In her written submissions, KI states:

I am writing to respectfully request that TASCAT appoint myself as Guardian for [BSH] under the Guardianship and Administration Act 1995. I am overwhelmingly concerned about [BSH]'s welfare and strongly believe that as [BSH]'s Legal Significant Other, I am the guardian of his choice. It is paramount to safeguard his best interests.

3. In contrast, BSH's other close family members opposed KI's appointment and instead advocated for the Public Guardian to continue acting as his substitute decision-maker_._
4. Ms Furdan submitted that KI was unsuitable to be appointed as BSH's guardian due to KI's difficulty in accepting medical advice. Ms Furdan raised concerns regarding the strained relationship between KI and the aged care facility. Ms Furdan was concerned that this strained relationship could jeopardise BSH's provision of care and accommodation should KI be appointed.
5. It was evident during the hearing that significant animosity exists between KI and BSH's family. There was a suggestion from BPH that KI had limited BSH from having contact with his family due to her intimidating behaviour, which was strongly disputed by KI. In her written submission, BPH alleged instances of KI's behaviour toward various members of BSH's family which caused significant distress and division, including:
   • abusive telephone calls to [BSH's] elderly mother, leaving her fearful for her safety in public;
   • escorting [BSH] to a police station to lodge false complaints against his daughter, alleging fraudulent compensation claims and harassment; and
   • creating an environment where family members feel unsafe visiting [BSH] at [the aged care facility], resulting in his isolation from his broader support network.
6. Concerns were also raised by BPH in her submissions that KI does not listen to BSH's wishes but rather imposes her will on BSH and engages in controlling and coercive behaviour towards him. BPH's evidence was that such behaviour had caused BSH significant emotional distress and increased his reliance on KI.
7. Concerns were also raised about KI's interactions with medical professionals. BPH noted that KI's behaviour had strained BSH's relationships with healthcare providers. Her disruptive actions led to general practitioners refusing to continue treating BSH, forcing him to find new providers. The continuity and quality of his medical care had been jeopardised as a result.
8. BPH's evidence and submissions were supported and corroborated by BSH's care facility, through OG. OG, who provided a written statement with supporting documentation, stated as follows:

.... For the reasons outlined in this submission, [the aged care facility] is concerned that [KI] is not an appropriate person to undertake the role of Guardian for medical decisions of [BSH]. > > [KI's] style of communication and inability to accept medical advice has resulted in risks to [BSH's] health and safety and a disruption to the continuity of his care. > > [BSH's] general practitioner [Dr NNT] terminated her care of [BSH] in March 2024. This necessitated finding another GP which after some time, [the aged care facility] assisted and Dr SD is now [BSH's] GP. Dr NNT advised me that the termination of her care of [BSH] was due to the difficult relationship she had with ... [KI]. This included a lack of respect for advice provided by Dr NNT by KI. KI also made a complaint to AHPRA regarding Dr NNT which Dr NNT advised me was found to have no basis. > > The nursing and care staff have made numerous complaints to the management of [the aged care facility] concerning [KI's] conduct when she visits BSH. KI seems unable to accept the advice and reports provided by the nursing and caring staff regarding BSH and often insists on further actions being taken where they are not warranted and being very critical of staff.

9. OG opined that KI had made vexatious complaints about herself and two nurses at the care facility to AHPRA who investigated and determined that no action should be taken and found that they were satisfied with the care that was provided was appropriate and to the accepted standard.
10. As an attachment to her submissions, OG provided the Tribunal with a petition signed by 18 staff members in December 2024, requesting action be taken regarding KI's inappropriate behaviour. OG advised that the care facility is now considering whether to ban KI from the premises should her conduct continue.
11. Some of the behaviour said to have been directed towards staff referred to KI making threatening and racist comments towards staff members. An extract of the petition provides as follows:

There were no issues from March after the APHRA reports were made however yesterday on 21/12/2024, [KI] has been exhibiting aggressive and abusive behaviour towards staff members, including speaking to them abruptly and inappropriately, passing racist comments, and harassing staff. She has continuously threatening Nurses that [BSH]s daughter is in Parliament, and she has power to sue/deport us. Her ongoing behaviours has become increasingly distressing and emotionally harmful to the team, particularly Nurses. The affected staff members, especially us, are now facing the risk of losing our professional registration as a result of these interactions, and many of us are feeling unsafe in this work environment. > > The mental and emotional toll of dealing with such behaviour has led us to heightened stress, anxiety, and a sense of helplessness among the team. The nurses have voiced significant concerns regarding their safety and well-being, and the continued abuse is severely affecting their ability to perform their duties effectively. It is vital that we take immediate and appropriate action to address this issue and ensure a safe and supportive work environment for all our staff.

12. Whilst KI suggested that many of the care providers who were a party to the petition were coerced, she did not actually deny that she had engaged in the conduct complained of. Some of KI's statements during the course of hearing would lead many to deduce that it was likely that the behaviour complained of occurred, the following statement being an example:

The first incident - [BSH] been there since 2017. That's the first incident that there's ever been an issue with the staff. The ratio of Tasmanians to overseas employees at [the care facility] has increased to the point that it's three out of four are now from overseas. There's a definitely lack of communication skills held by these staff members. I've been told by other staff members at [the care facility] that when they go into the staff room, they feel uncomfortable. They speak their own language. They make it difficult for the residents to understand them.

13. As noted earlier in these reasons (see [21] to [22]), Mr MacGregor informed us that when BSH was asked who he would like to be his guardian should one be appointed, he responded that he would like his deceased father to be appointed, or KI in the alternative.
14. It is mandated in s 21(a) of the Act that we must take into account BSH's wishes and preferences when assessing KI's suitability to be his guardian. At first instance, the evidence on this issue points in favour of the suitability of KI. However, the fact that KI was provided by BSH to be his guardian as an alternate to his own father, who sadly has been deceased for over 20 years, is indicative of the diminished weight we should afford BSH's views on this issue. Further, whilst a mandatory consideration, we are not obliged to act on BSH's stated will and preference if there is no basis to do so after taking into account the other mandatory considerations of s 21(a): Quigley J in VHX v JZT [2024] 238 at [71].
15. It is a matter of note that KI's 37 page submission in the proceedings raised little as to her suitability to be appointed as BSH's guardian, nor did it counter the well-established criticisms of her by both BSH's family members as well as representatives of the care facility where BSH resides. Instead, the submissions focussed on providing negative commentary of BSH's various family members whose suitability was not in issue and cataloguing her version of events on certain occurrences within the care facility. As previously noted, even when we endeavoured to assist BSH, as an unrepresented party, by noting the key negative evidence against her as to her suitability to afford her an opportunity to counter such evidence, her responses tended rather to make counter allegations against the care facility, the Public Guardian, or family members of BSH, which were not relevant to the issue at hand.
16. OG noted in her written submission that KI thought it appropriate to include a member of parliament into correspondence with respect to discussions regarding BSH's medical care. OG raised concerns around this being inappropriate and a breach of BSH's privacy.
17. OG also gave evidence that when professional opinions have been given, KI has disputed and been unwilling to take that advice from the trained medical professionals, having her own opinion on the situation that she firmly believes to be true.
18. We have no difficulty accepting the evidence of OG as outlined in her submission regarding KI's poor treatment of staff, particularly given the language and behaviour of KI observed during the hearing itself. KI made derogatory remarks about the aged care staff, specifically commenting on the higher ratio of overseas employees who "speak in their own language" compared to "Tasmanians". This conduct further supports the concerns raised about KI's inappropriate behaviour, reinforcing the view that her actions have caused significant difficulties in the provision of BHS's care as a result. OG also provided evidence that staff were reluctant to engage with KI due to her threats and intimidation, which, while not preventing BSH from receiving care, made staff hesitant to perform additional visits to his room as they fear retribution by KI. Whilst KI is entitled to utilise complaint mechanisms available to her, given the number of complaints she has raised, whether that be to AHPRA, the Ombudsman, Members of Parliament, the circumstances of such complaints as outlined to us could lead one to conclude that KI weaponises complaint mechanisms as a means of intimidation and/or retribution. That was certainly the conclusion of many who provide direct care to BSH.
19. The evidence before us it made it abundantly clear that KI is not a suitable person to be appointed as guardian for BSH. She appears regularly unable to accept medical advice or to collaborate with healthcare professionals. KI holds a fixed belief that "criminal medical negligence" is being perpetrated against BHS. This view appeared to be formed on the basis that the Public Guardian was not pursuing invasive medical investigations which were not clinically indicated by his treating doctor.
20. Significantly, we formed the view that KI does not understand the role of a guardian and would be unable to comply with the duties imposed upon a guardian by the Act. When asked by Mr MacGregor about how she would handle a disagreement with BSH regarding medical treatment, she indicated that BSH would always have the final say, which reflects a fundamental misunderstanding. Furthermore, when asked how she would engage with BSH's family, KI stated that she would most likely only communicate with one of BSH's brothers, to pass on information.
21. Section 21(2)(b)(i) requires us to be satisfied that the proposed person understands their obligations and duties and will act in accordance with the requirements of the Act. Based on the evidence, we cannot be satisfied that KI understands these obligations and duties or would be able to act in accordance with them.
22. Further, pursuant to s 21(4)(g) of the Act, we must also be satisfied that KI has the necessary skills to competently perform the role of guardian. Given the evidence of KI's behaviour in undermining the continuity of BSH's medical care, including multiple healthcare providers refusing treatment, we are not satisfied that KI meets the requisite standard of competency.
23. It is apparent that KI lacks the interpersonal skills required to act as BSH's guardian given her inability to work with others involved in BSH's care. Given these factors, we are not satisfied that KI is the appropriate person to act as BSH's guardian, as her behaviour undermines the trust and cooperation needed for effective decision-making.
24. As a result, we are of the view that the Public Guardian should continue as BSH's substituted decision-maker in accordance with s 21(1)(b) of the Act as there is no person eligible for appointment.
25. Moreover, there is clearly a need in this matter for an independent and impartial decision-maker to act as a substituted decision maker. We recognise that the Public Guardian's role can help preserve BSH's relationships with his family members which is important to his overall wellbeing. Appointing the Public Guardian ensures that BSH's needs are met in a way that respects his rights and preferences, while also safeguarding his physical and emotional wellbeing.

1. The evidence before us indicates that BSH has dementia and an acquired brain injury. Since 13 October 2016, BSH has been subject to an administration and guardianship order with the orders only having been reviewed primarily for the purpose of determining who should be his administrator and guardian. The medical evidence provides that BSH's dementia is progressive in nature. BSH's circumstances were unlikely to change such that the need for an administrator or guardian would be mitigated. Considering these matters, we determine the duration of the administration and guardian orders for BSH should be for the maximum permitted period of 3 years.

1. The administration order for BSH made on 20 December 2021 has been renewed and from this day the order is:

1. The Public Trustee is appointed as administrator for BSH until 13 April 2028.

1. The guardianship order for BSH made on 18 November 2021 has been renewed and from this day the order is:
   1. The Public Guardian is appointed as guardian of BSH until 13 April 2028 with the authority to make substitute decisions for the following personal matters:
      1. where and with whom BSH lives, whether permanently or temporarily.
      2. Consenting to, or refusing, or withdrawing consent, to the provision of health care or medical or dental treatment for BSHf