• Pursuant to section 28 of the Guardianship and Administration Act 1995, any police officer; any employee or agent of the residential aged care facility where ST is staying as determined by the Guardian, are empowered to take the measures or actions specified below to ensure that ST complies with any decision of the guardian made under this order. The use of such reasonable force or environmental restraint as is necessary to keep ST there or return her there should she leave, contrary to the guardian's decision.

• The use of such reasonable force or environmental restraint as is necessary to keep ST there or return her there should she leave, contrary to the guardian's decision.

Guardianship - impaired decision-making ability - need for a guardian - enforcement powers - use of environmental restraint

Guardianship and Administration Act 1995, ss 8, 20. 28

ST (Request for interlocutory emergency guardianship order) [2025] TASCAT 39

Barker v Guardianship and Administration Board [2019] TASSC 8

The decision has been anonymised for the purpose of publication.

1. ST is an 82-year-old woman who resides at NT, a residential aged care facility in Tasmania (the RACF).
2. She has been subject to a previous decision of the Tribunal in ST (Request for interlocutory emergency guardianship order) [2025] TASCAT 39. In that decision, where in late January 2025, the tribunal received an application for guardianship made by a representative of the RACF, and because the application indicated a belief that ST was in immediate risk of harm, an emergency hearing was conducted on 3 February 2025 and an interlocutory guardianship order was made.
3. The substantive application for this decision was heard on 28 February 2025 and the Tribunal determined that ST's daughter should be appointed as her guardian, together with enforcement powers pursuant to s 28 of the Guardianship and Administration Act 1995 (the Act).
4. ST's advocate at the hearing has requested this written statement of reasons.

1. The only attendee in person at the hearing room in Launceston was Ms Hammond of the Office of the Public Guardian (the OPG), attending on behalf of Ms Di Shephard.
2. Those who attended the hearing by video link were:
   • ST - the Proposed Represented Person
   • MNT - daughter of ST
   • NN - Manager of the Residential Aged Care Facility where ST is living (the RACF)
   • Ms Lisa Woods - Advocacy Tasmania on behalf of ST (the advocate)
   • Ms L Cheney - from the Public Trustee's office
   • Ms R Bernacki - an observer from the Public Trustee's office
3. The Tribunal had the following documents available at the hearing:
   • Emergency guardianship order - 3 March 2025
   • Statement of Reasons - 3 March 2025
   • Guardianship Order - Withdrawal - 22 October 2024
   • Emergency guardianship order - 18 July 2024
   • Notes of Decision - 18 July 2024
   • Guardianship Order - 13 October 2023
   • Administration Order - 13 October 2023
   • Application to Withdraw - 21 February 2023
   • Application for Guardianship - 29 January 2025
   • Health Practitioner's Report by Dr McAlpine dated 25 September 2024 (the HPR)
   • The PRP's patient profile - 11 September 2024
   • Letter from Dr J Paech of Older Persons Mental Health to NN dated 29 January 2025
   • Undated letter about the PRP from Dementia Support Australia
   • Behaviour Support Plan dated 15 August 2024
   • OPG Emergency Guardian's report 12 August 2024
   • OPG Guardian's report 18 September 2024
   • OPG Guardian's report 26 February 2025

1. When the Tribunal assesses an application for the appointment of a guardian for a person in respect of one or more personal matters, it needs to be satisfied, in accordance with s 20 of the Act, that the proposed represented person:

(a) has impaired decision-making ability in respect of decisions relating to financial matters;

(b) is in need of a guardian; and

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

1. When determining whether a person is in need of an administrator, the Tribunal must consider the following:

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

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

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.

1. When making an order for guardianship, the Tribunal is to observe the principles set out in s 8 of the Act. That includes:

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

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 -

• to make and participate in decisions affecting the person; and
• to express the person's will and preferences; and
• to develop the person's decision-making ability;

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;

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;

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

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

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.

1. Early in the hearing, the application to withdraw was raised with NN, and after some brief discussion with her, the Tribunal members agreed that the request to withdraw the application should be refused and that the hearing should proceed.

1. In her HPR Dr McAlpine indicated that she had seen ST at the time of completing the HPR in September 2024, and that ST did not have decision making ability about personal matters because she could not:
   • understand information relevant to the decision;
   • retain information relevant to the decision for a sufficient time to make and consistently communicate the decision;
   • use or weigh relevant information; or
   • communicate the decision.
2. Dr McAlpine also noted that ST had no short-term memory capability and did not have appropriate insight into her situation. She commented that ST:

does not know where she is currently living and has delusions that she is still living at home or going shopping which she has not done for more than 18 months.

3. In response to a question, NN informed the Tribunal that Dr McAlpine had access to the medical notes for ST and had seen her on a number of occasions after that first time she had seen ST at the RACF.
4. When questioned, ST could not remember meeting Dr McAlpine.
5. The Tribunal also had a copy of a lengthy letter from a psychiatrist, Dr Paech, that had been sent to NN and to the GP practice where Dr McAlpine was working. Dr Paech had seen ST on 3rd September 2024. In his letter, he noted that ST was likely to have an Alzheimer's type dementia, but he would not be surprised by a vascular contribution to her dementia. However, he believed that further digital imaging would have been of limited value at that time.
6. When the Tribunal asked whether there was any challenge to the medical evidence, the advocate stated that the HPR and the psychiatrist's letter were both "in play at previous hearings." When the advocate was asked directly whether she was challenging the medical evidence or had any additional medical evidence for the Tribunal, she indicated that she had no additional medical evidence to put before the tribunal.

1. NN had informed the tribunal that ST packs her belongings daily and takes them to the front door of the facility. She stated that historically staff at the facility had been able to redirect ST or take her into town for a walk, but since her dementia had deteriorated it had become more difficult to redirect her. NN pointed out that they could not restrain ST environmentally without a guardian's permission and that there was a possibility that if she walked out of the facility she could be hit by a log truck outside.
2. NN stated that ST is very impulsive and that on the previous evening she had assaulted one of the other residents at the facility.
3. When the chair of the tribunal asked ST whether it was true that she was packing her bags and attempting to leave, ST said that it was NN who had been packing her things and that when NN does that, she then has to sort out her things.
4. The advocate told the tribunal that her instructions were that ST keeps her things in boxes and that NN puts them in the office.
5. NN told the tribunal that ST had been leaving her packed boxes in the locations where they were trip hazards for other residents at the facility, so they had to be moved.
6. NN told the tribunal that ST is very mobile and that she misplaces a lot of her things. She said that ST does pack her things and that she has been waiting for her mother to come and collect her. She also added that recently ST had stated that she had remarried and was going to live with her new husband.
7. The advocate suggested that there was no evidence of ST actually leaving the facility, so NN was specifically asked whether there were times when ST had left. NN informed the tribunal that ST had done so, and as an example, she stated that at 4:00 a.m. on a Winter's morning, ST had left through a door that somebody had inadvertently left open and, as a result, staff needed to search for her.
8. NN was asked how a guardian would help in that situation if it were to be repeated. She said that she would be able to get permission from the guardian to lock the door.
9. The Tribunal noted what the senior guardian had said at numbered paragraph 6 of the OPG Guardian's report. It reads in part as follows:

[ST] is consistently stating she wants to leave the [RACF]. She does not have an alternative accommodation location at this time. She has the support of Advocacy Tasmania to seek other options which is her right to do so. There appears an ongoing need for a guardian at this time to decide where [ST] is to live and for this order to include section 28 powers for [ST] to remain at the current aged care facility against her wishes. She requires a guardian to ensure any decisions are in line with her will and preference, where possible, and that decisions promote her personal and social wellbeing.

10. The advocate was asked whether she agreed with the suggestion that ST is consistently stating that she wants to leave the facility. The advocate stated that her instructions were that ST was not immediately looking to leave and there is no immediate alternative accommodation option available to her. The advocate stated that ST is bored at the facility.
11. The advocate referred the Tribunal to paragraph 16 of Barker v Guardianship and Administration Board [2019] TASSC 8, where Geason J said:

Before I deal with the issue, I consider the intervener's submissions at pars 5b and 7, assert possibilities: that "at some point" something may occur. Because of the uncertain nature of each of those matters, neither provides a basis for an order. The Act is concerned with the circumstances of a person. Those circumstances can be only those which prevail at the time the order is sought. Until a possibility becomes fact, it is not a relevant matter; at the point at which it becomes fact a foundation for an application will exist. I do not consider that the Act authorises the making of orders against mere possibilities. Further, such approach is offensive to the principle which requires the lightest touch: s 6 and s 20 ....

12. The advocate was informed that the Tribunal was aware of what Geason J had said in that Supreme Court decision, and that the Tribunal cannot make 'just in case' orders on the basis of a mere possibility.
13. When the advocate was asked about the statement in the OPG report that ST is consistently saying that she wishes to leave the facility, the advocate stated that the only recent example was in Winter last year at a time when ST was possibly suffering from a urinary tract infection. She added that she was not aware of any recent examples of a wish to leave the facility.
14. NN informed the Tribunal that ST packs her things every day and takes them to the front door, which includes a pram, plastic bags and a cardboard box. ST believes people are stealing from her and she says that her mother is coming to collect her. NN said that the most recent occasion had been the night before the hearing when ST a verbal altercation with another resident's husband. In addition, she had punched another resident and said she was ready to go.
15. When a Tribunal member asked why ST had not left the RACF the previous evening, NN stated that it was because the door was locked pursuant to the Section 28 power contained in the emergency interlocutory order.
16. When the advocate was asked to respond to that, ST interjected and accused NN of lying.
17. The advocate said that her instructions were contrary to the evidence that NN had given to the Tribunal and that ST does not wish to leave the facility.
18. In relation to the Section 28 power, the advocate stated that, as an alternative, the police could be contacted to conduct a 'welfare check'. It was put to the advocate that it would be better for ST to have a locked door rather than involve the police, to which the advocate repeated her instructions that ST does not wish to leave the facility.
19. It became clear that ST wished to say something to the tribunal, so she was asked what she had to say about the suggestion that as recently as the previous evening she had attempted to leave the facility. Her response was that she did not know about that and said "so somebody has played a game, because it wasn't me".
20. ST told the Tribunal that she does have a mother, who lives "not far away". ST said on two further occasions during the hearing that she does have a mother.
21. When questioned about her mother's family situation, MNT informed the Tribunal that:

she is the only child who is in contact with her mother;

her grandmother (ST's mother) had died approximately 24 years ago.

1. MNT informed the tribunal that she has weekly video meetings with her mother, which had been arranged by NN.
2. MNT said that she would love to be her mother's guardian in order to keep her in a safe environment. She has worked as a childcare worker and would like to protect her mother like she had protected children in her care.
3. MNT stated she had seen a lot of information about the RACF and described it as a beautiful place. She was fulsome in her praise of NN.
4. She indicated that she would like to be the person to make decisions around locking of the doors at the RACF.
5. When she was asked about an earlier apparent breakdown in her contact with her mother, MNT said that she had re-established contact with her mother in 2018 and then again in 2023. She now enjoys the weekly video meetings with her mother that are referred to above.
6. When ST was asked who should be appointed if the Tribunal decides that she needs a guardian, ST was quite definite that it should be her daughter.
7. The Public Trustee had no submissions to make about this matter.

1. Although Dr McAlpine wrote the HPR at a time when she had only known ST for one day, she had seen her on a number of subsequent occasions and there was no contrary medical advice available to the Tribunal. The Tribunal was confident that if there had been any contrary medical advice, it would have been provided by Dr McAlpine or by another doctor from that medical practise.
2. The Tribunal also had the letter from Dr Paech that is referred to above, and the letter from Dementia Services Australia.
3. The Tribunal was satisfied that, resulting from her dementia, ST's decision making ability is impaired in relation to some personal matters. In addition, the Tribunal was satisfied that there is a need for a guardian to make decisions about where ST is to live.
4. The Tribunal accepted the evidence that ST has regularly indicated that she wishes to leave her accommodation, even as recently as the night before the hearing. The Tribunal also accepted that there is a risk that ST could come to physical harm from motor vehicles in the area, including log trucks.
5. Because the Tribunal is satisfied that there is a reasonable prospect that ST may leave the RACF, paragraph 16 in the decision in Barker is not applicable in this matter.
6. The Tribunal determined that ST's daughter should be appointed as her guardian with reasonable powers of enforcement as provided in the emergency interlocutory order made on 3 February 2025. The orders are set out on the cover page to this statement of reasons.