Guardianship stream - Application for administration - Impaired decision making ability - Need for an administration order - Promotion of personal and social wellbeing - Administration order made - Duration of order - Public trustee appointed.

Guardianship and Administration Act 1995 ss; 3, 5, 8, 11, 20, 51, 52, 54.

The decision has been anonymised for the purpose of publication.

1. TI is a 65 year old woman who lives in her own home in northern Tasmania.
2. On 23 January 2025 the Tasmanian Civil and Administrative Tribunal (the Tribunal) received an application for guardianship for TI, made by her son, SI.
3. On 21 February 2025 the Tribunal received an application for administration for TI made by SI.
4. The applications were listed for hearing before us on 7 March 2025.

1. The hearing was attended by TI, SI, Brenda Saward from the Public Trustee and DN from Anglicare, in person, and Toby MacGregor, separate representative for TI from Tasmania Legal Aid, and Darlene Hammond from the Public Guardian, via audio visual link.
2. For reasons outlined below the Public Guardian was appointed to make decisions about the provision of care services for TI until 6 March 2026, and the Public Trustee was appointed as administrator for TI until 6 March 2028.
3. Ms Hammond, TI's delegated guardian, on behalf of TI requested written reasons. These are the reasons.

1. Section 20(1)(b) and (c) of the Guardianship and Administration Act 1995 (the Act) provides:

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

(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. "Decision-making ability" is defined in s 11 of the Act and s 11(2) sets out when an adult has impaired decision-making ability.

Decision-making ability

...

(2) For the purposes of this Act, an adult has impaired decision-making ability in respect of a decision if the adult is unable, even with the provision of access to practicable and appropriate support, to -

(a) understand information relevant to the decision; or

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

(c) use or weigh information relevant to the decision; or

(d) communicate the decision (whether by speech, gesture or other means).

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;

2. In determining whether a person is a need of a guardian the Tribunal must consider in accordance with s 20(2) of the Act:

(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.

1. Section 5 of the Act sets how a person's "personal and social well-being" is promoted:

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. Section 51(1)(b) and (c) of the Act provides:

51. Administration orders > > The Tribunal, after a hearing, may make an order appointing an administrator for a person in respect of the person's financial matters if - > > ... > > (b) the Tribunal is satisfied that the person - > > is a person with impaired decision-making ability in respect of decisions relating to those financial matters; and > > is in need of an administrator; and > > the Tribunal is satisfied that the order will promote the person's personal and social well-being.

2. "Financial matter" is defined in s 3 of the Act as:

financial matter, in relation to a person, means any matter relating to the estate of the person including the income, assets, debts, liabilities, real property, personal property and financial affairs of the person, and includes any legal matter that relates to the property or finances of the person.

3. Section 51(2) of the Act sets out the following factors the Tribunal must consider in determining whether someone is in need of an administrator:

(2) For the purposes of subsection (1)(b)(ii), in determining whether a person is in need of an administrator, 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 that are 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.

1. Section 54 of the Act provides who the Tribunal may appoint as administrator for a person in respect of financial matters.

54. Persons eligible to be appointed as administrators

(1) The Tribunal may only appoint the following persons as an administrator for a proposed represented person in respect of financial matters:

(a) a person, including the guardian for the proposed represented person, who is eligible for appointment under subsection (2);

(b) if no person is eligible for appointment under subsection (2) -

(i) a trustee company within the meaning of the Trustee Companies Act 1953 ; or

(ii) The Public Trustee; or

(iii) the Public Guardian.

1. If the Tribunal is satisfied to make an administration order, the duration of the order must be considered.

52. Expiration of administration orders

(1) An administration order has effect for 3 years, or such shorter period as the Tribunal may specify in the order, unless the order is continued under section 68.

(2) In determining the duration of an order, the Tribunal must take into account the following:

(a) the likelihood of improvements to the represented person's decision-making ability;

(b) the prospect that changes to circumstances, including interventions to establish support arrangements, will mitigate the need for a guardian or administrator (or both);

(c) the requirement that the order is the least restrictive of the person's freedom of decision and action as is possible in the circumstances.

1. Further, 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.

1. A health practitioner report (HPR) - guardianship from Dr LO, TI's general practitioner, dated 19 December 2024 was filed with the application for guardianship. Dr LO states TI has impaired decision making ability because she cannot understand, retain and use and weigh information relevant to personal decisions about care services, medical treatment and health care.
2. Dr LO opines TI is unable to understand that decline in her function and cognitive capacity has led to self-neglect and an increased risk of morbidity and mortality. Dr LO provides TI is unable to understand and retain information about concerns of malnutrition, excessive alcohol consumption contributing to falls and compromised hygiene standards leading to increased risk of infection.
3. A HPR - administration from Dr LO dated 17 February 2025 was filed with the application for administration. Dr LO states TI does not have decision making ability because she cannot understand, retain or use and weigh information relevant to financial decisions about day to day requirements and more complex financial and legal decisions.
4. Dr LO opines that due to TI's underlying cognitive impairment she is unable to grasp essential concepts, does not demonstrate awareness of her financial situation, does not retain information for longer than a few days and does not use information provided to her to make consistently appropriate financial decisions and protect her finances.
5. Dr LO opines the cause of TI's impaired decision making ability is drug or alcohol related dementia. Dr LO formed her opinion about TI's decision making ability based on clinical reviews with TI, collateral history from family and services and MOCA assessments conducted in March and December 2024.
6. SI agreed with Dr LO's evidence. He said that over the past 18 months he had seen a rapid decline in TI's weight, memory and decision making ability.
7. Mr MacGregor said TI expressed to him that she thought she could make her own decisions about personal and financial matters.
8. Mr MacGregor submitted the evidence in the HPR was comprehensive and clear that TI had impaired decision making ability about personal and financial matters.
9. Based on the medical evidence before us, we find TI has impaired decision making ability in respect of personal and financial matters.

1. Dr LO had stated that TI's clinical care manager had expressed concerns regularly about her engagement with services. The doctor also referred in the HPR to TI's unawareness of incontinence, not attending to her own hygiene needs, not consuming prepared meals and excessive intake of alcohol. Those issues were also referred to by others in the hearing.
2. Although TI indicated that she was willing to engage with additional service providers, a majority of members of the Tribunal were not persuaded that she would be likely to instigate any changes. Consequently, a majority of Tribunal members were of the view that a guardian is needed to make decisions about whether additional services should be provided for TI to enable her to remain in her home.
3. Addressing the issues referred to above will promote TI's personal and social wellbeing.

1. The Tribunal heard from SI that he is overwhelmed and distressed by this matter, and at times he even suffers from panic attacks. TI's other son did not take part in the hearing, so he is even less involved than SI. In those circumstances, it was clear that the Public Guardian should be appointed.

1. The majority was of the view that 12 months would be sufficient time for a guardian to make and implement any decisions in relation to services.

1. SI was concerned about TI's health. He said TI was not maintaining adequate nutrition, hydration, medication and hygiene, and whilst TI told him she was eating and drinking her body did not show that. SI considered that TI remaining at home with a level 4 home care package was not adequate to sustain her quality of life but was unclear of alternatives. SI was engaged with TI's support provider and although he was not aware of Dementia Australia, he was open to suggestions of where he could obtain assistance for TI.
2. DN, from TI's support provider, said TI has one (1) hour of personal care every day as well as assistance with transport to attend appointments. DN noted concerns about TI's safety in the home, with evidence of TI having fallen. DN said that carers had turned up to the home on occasions and seen evidence of something having happened, however TI had not been able to recall what had happened. DN said TI was always willing to let carers in to assist her but not always with personal care.
3. Ms Hammond referred to Dementia Australia as a resource for people experiencing dementia, including the person with the diagnosis, family and support providers. She also raised the existence of equipment such as clocks with visual prompts and reminders that can assist a person with memory issues and deficits, and personal alarms that contact emergency services or a loved one if a person has a fall. Whilst not suggesting there needed to be a change in support provider, Ms Hammond said some support providers can provide more time "on the ground" than others, noting that different providers have different fees and different capacities in terms of availability.
4. Ms Hammond submitted that TI should be supported to explore whether Dementia Australia could assist her and the family with strategies, along with any recommendations from TI's general practitioner around her health issues. Ms Hammond suggested a phone call to the local office of Dementia Australia to see what could be offered. Noting that TI identified in the applications as an Aboriginal or Torres Strait Islander, Ms Hammond also suggested the Tasmanian Aboriginal Centre as an option for services and support for TI.
5. TI said she has been making the decisions in relation to her level 4 home care package and the services provided. She added that if she has any concern about her health or safety at home, she will not hesitate to tell her sons or a carer. TI was agreeable to a personal alarm, such as a falls watch, as well as more in home support. She said she was happy for carers to be in her home but did not like anyone seeing her naked.
6. Mr MacGregor recognised TI's willingness to accept supports and asked SI whether he would be happy to sort out changes to supports if required. SI replied, "I'm willing to look into options that might make my Mum's stay at home successful". SI also acknowledged it would help if TI had a personal alarm.
7. Whilst residential aged care placement was not currently contemplated Mr MacGregor indicated that TI wants to stay at home. TI told him that she does her own cleaning every day, has no issue with eating, accepts she has some hygiene issues, recalls one fall, and takes her medication using a webster pack.
8. Mr MacGregor conceded need for a guardian was a more difficult question. He submitted that least restrictive alternatives had been attempted, however risks to TI continued. Whilst he accepted Ms Hammond's evidence that there are other support options and the willingness of SI to attend to looking into them, he was concerned about whether SI has the knowledge or capacity to commit to finding supports and making sure they are in place, and whether those informal means would fully address the concerns raised in the application.
9. Mr MacGregor submitted if there is a need, a guardian might be beneficial and promote the personal and social wellbeing of TI in finding and arranging supports and discussing them with TI. Mr MacGregor did not identify any other personal matter for which there was a current need for substitute decision making for TI.
10. In reply, Ms Hammond said a guardian is a decision making role and not about arranging and organising supports. Ms Hammond indicated if a guardian was not appointed, that she was willing to provide information to SI about avenues that could be explored given SI said he was available to help with that. Ms Hammond added that if concerns at home escalated an ambulance could be called, and if alcohol was inhibiting TI remaining at home safely, the drug and alcohol service could help. Ms Hammond disagreed there was a need for a guardian.
11. Given TI's evidence that she is agreeable to in home supports and the use of equipment such as a falls watch, that there are supports that have not yet been explored for TI, and SI is willing to look into options that may assist TI remaining at home I am not satisfied there is a current need for a guardian.

1. SI said TI had been taken advantage of financially and referred to a taxi driver who had been ringing her every day for a fare and overcharging her. SI had contacted the taxi company, and "they were looking into it". SI also said TI had made an over payment of $9600 towards her Aurora bill.
2. SI said that over the last six (6) months he had to step away from TI's finances because it was becoming overwhelming for him and bringing him down. His brother had tried to assist but is more easily frustrated than SI. SI supported the need for an administrator and nominated the appointment of the Public Trustee because managing TI's financial matters was too overwhelming for him.
3. TI said she thought what "got her" was what she was charged by the taxi driver. It is not clear what she meant by this. TI could not recall overpaying her Aurora bill, which she often pays at the post office, although she said she may have transferred the funds by a phone call.
4. TI said she receives a disability support pension which is paid into a savings account and the bank transfers an amount into a bill account. TI owns her home and has a car but is not driving because of an injury to her leg. She thought she had shares.
5. TI didn't think she had any outstanding bills but would need to check her table at home. She said if there was something she was puzzled about she would ask her sons or a carer. Whilst TI did not think she needed an administrator she was amendable to the Public Trustee being appointed to make sure all her bills were paid, if she "could go to the shop and use her card".
6. DN said some carers provide support to TI around paying bills and assisting with phone calls and making payments, and there is some confusion about what has, and has not, been paid.
7. Mr MacGregor said when he spoke to TI she was opposed to the need for an administration order and was happy to reach out to her sons and carers if she required assistance with her financial matters.
8. Mr MacGregor submitted there is a need for an administrator given the issues of overpayment, risks of vulnerability and that least restrictive options had been explored. Mr MacGregor was cognisant that SI is not able to assist TI, and her family is supportive of an order.
9. Ms Saward outlined how administration by the Public Trustee would work for TI including the recouping of the funds paid to Aurora. Ms Saward submitted TI would benefit from having an administrator by taking away the worry of making sure her bills are paid and not overpaid.

1. Based on the evidence, we find there is a need for an administrator. An administrator can receive TI's pension and from that pay all her expenses and manage any savings, ensuring they are used for TI's benefit and enjoyment. An administrator can take steps to recoup the funds overpaid by TI to Aurora. When considering need we have given weight to SI being supportive of an administration order. We are not satisfied that TI's needs are able to be met by less restrictive means.

1. Mr MacGregor submitted an administration order will promote TI's personal and social wellbeing by promoting her dignity and autonomy, and ensuring she is free from exploitation.
2. We accept Mr MacGregor's submission and find an administration order will promote TI's personal and social wellbeing. An order will ensure TI is free from exploitation and other forms of financial harm.

1. No private person sought appointment as TI's administrator, so we appointed the Public Trustee.

1. Mr MacGregor and Ms Saward submitted an administration order be made for three (3) years.
2. The medical evidence and evidence of SI is that there has been a steady cognitive and functional decline of TI. The medical evidence does not suggest there will be any likely improvement to TI's decision making ability. We heard evidence that significant support has and is being provided to TI and this support does not mitigate the need for an administrator to make financial decisions. An administration order is the least restrictive of TI's freedom of decision and action as is possible in the circumstances.
3. Having considered the matters in s 52(2) of the Act we determine the duration of the administration should be three (3) years.

1. The Public Guardian (Tas) is appointed as guardian of TI until 6 March 2026 with the authority to make substitute decisions for the following personal matters:

1. the provision of care services to TI, including NDIS services.

1. The Public Trustee (Tas) is appointed as administrator for TI, until 6 March 2028.

1. The administrator is to lodge with the Tribunal a financial summary relating to the financial matters of TI within 6 weeks from the date of this order.