1. Where and with whom BDS lives with permanently or temporarily;
2. Who may contact or visit BDS;
3. The provision of care services to BDS;
4. Consenting to, or refusing, or withdrawing consent, to the provision of health care or medical or dental treatment for BDS;
5. Any legal matters that relate to BDS's personal affairs.

Guardianship stream - Review of guardianship order; Impaired decision-making; Need for guardian; Promotion of personal and social wellbeing - Duration of order.

Guardianship & Administration Act 1995 (Tas); ss , 8,, 20(1)(b), 20(1)(c), 67(c), 68.

VHX v JZT [2024] VSCA 238

The decision has been anonymised for the purpose of publication. The publication of evidence given before the Tribunal and the contents of any documents produced, or the name of any party or witness in the proceedings is prohibited.

1. BDS is a 92 year old woman who resides in her own home in southern Tasmania. She is the subject of an administration order.
2. On 2 January 2025 the Tasmanian Civil and Administrative Tribunal ("the Tribunal") received an application from BDS's daughter, TS seeking the appointment of an administrator and guardian. On 16 January 2025 the matter was heard before the Tribunal and orders were made as follows;

1. The appointment of [ISE] as guardian of [BDS] until 15 January 2028 with authority to make substitute decisions for the following personal matters:

consenting to, or refusing, or withdrawing consent, to the provision of health care or medical or dental treatment for [BDS].

3. The Public Guardian (Tas) is appointed as guardian of [BDS] until 15 January 2028 with authority to make substitute decisions for the following personal matters:

ii. who may contact or visit [BDS]. > > iii. the provision of care services to [BDS], including NDIS services. > > iv. any legal matters that relate to the personal affairs of [BDS]

4. An order was also made for the appointment of an administrator.
5. An application for review of the guardianship order and for the making of interlocutory orders ("the review application") was filed on 3 April 2025. The interlocutory application was heard by the Tribunal on 21 March 2025 and at that time the following orders were made:
   1. The appointment of [ISE] as guardian of [BDS], pursuant to the order dated 16 January 2025, is suspended for and only during the period of the appointment of the Public Guardian (Tas).
   2. The Public Guardian (Tas) is appointed as guardian of [BDS] until 1 May 2025 with the authority to make substitute decisions for the following personal matters:
      1. Where and with whom [BDS] lives, whether permanently or temporarily.
      2. Who may contact or visit [BDS].
      3. The provisions of care services to [BDS], including NDIS services.
      4. Consenting to, or refusing, or withdrawing consent, to the provision of health care or medical or dental treatment for [BDS].
      5. Any legal matters that relate to the personal affairs of [BDS].
   3. Pursuant to section 28 of the Guardianship and Administration Act 1995, any ambulance officer; any employee or agent of the Tasmanian Health Service (THS) are empowered to take the measures or actions specified below to ensure that BDS complies with any decision of the guardian made under this order.
6. The application for review of the guardianship was listed before us on 30 April 2025.

1. Notwithstanding the orders for guardianship made on 16 January 2025 both guardians faced difficulties in performing their respective powers for personal decision making. In addition, the Public Trustee determined BDS's home was unsafe to live in unless repairs are undertaken to bring the property back to a reasonable standard. Repairs could not be arranged because BDS's son KS was refusing entry to contractors. It was established if actions were taken to enforce the works it would adversely impact BDS by exposing her to harm. It was determined by the Public Guardian the only reasonable pathway forward was to relocate BDS to safety until the repairs in the home had been arranged and undertaken.

1. The hearing was attended by Jeremy Harbottle from the Office of the Public Guardian (the applicant), Alice Pritchard from Advocacy Tasmania, Melanie O'Connell from the Public Trustee, TS, KS, BDS's granddaughter ISE, and BDS. BDS and Alice Pritchard attended by Teams. All other parties attended in person.
2. For the reasons outlined below, we appointed the Public Guardian as guardian for BDS to make decisions about where and with whom BDS lives, whether permanently or temporarily, who may contact or visit BDS, the provision of care services, consenting to or refusing to or withdrawing consent to the provision of healthcare or medical or dental treatment for BDS and any legal matters that relate to BDS's personal affairs. We made those orders for a period of 12 months.
3. A request for written reasons by Advocacy Tasmania was received. These are those reasons.

1. On 1 September 2024, significant amendments were made to the Guardianship and Administration Act 1995 (Tas) (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. Section 20 of the Act sets 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 s 21 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. Section 21(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. A Health Practitioner Report (HPR) from Dr Martin Morrissey, an old age psychiatrist with the Older Person's Mental Health Service was filed in support of the application. The HPR details that BDS has impaired decision-making ability due to dementia. During Dr Morrissey's formal assessment of BDS's decision-making ability for personal matters, he determined BDS cannot understand information or use or weigh information relevant to personal decisions. Dr Morrissey commented that:

BDS does not have decision-making ability about personal matters because she cannot retain the information relevant to the decision for sufficient time to make and consistently communicate the decision due to her dementia, she does struggle to retain information relevant to her healthcare needs and provision of services.

2. Further, Dr Morrisey stated BDS does not have decision-making ability about her personal matters because she is unable to use or weigh information relevant to the decision, reporting:

with her declining physical and cognitive health, control and coercion exerted by KS, is now having a real and detrimental affect on BDS's health and wellbeing. BDS places undue weight on the express wishes of her son even when these wishes are against her own wishes or are likely to jeopardise her own health. The combined affects of her dementia and the coercive relationship she has with KS directly impair her ability to use and weigh information.

3. With the exception of BDS and KS, the question of BDS's impaired decision-making was not in dispute at the hearing. KS does not agree that BDS has impaired decision-making, stating that he did not agree with the report of Dr Morrissey. He does not agree BDS has dementia and says that she only has a slight cognitive impairment. Advocacy Tasmania advised BDS also disagreed with the diagnosis of dementia and her opinion is that she can make decisions herself. Advocacy Tasmania detailed because a person makes unwise decisions, it does not mean they are decision impaired applying this argument to BDS.
4. We were not however provided with any alternate medical evidence to support the contention that BDS did not have dementia, did not live with a cognitive impairment and did not have impaired decision making in respect of personal matters.
5. Based on the medical evidence before us, we found that BDS has impaired decision-making ability about personal matters relating to healthcare, medical and dental treatment, the provision of care services and legal matters relating to her personal affairs due to dementia, which prevents her from understanding, retaining and using and weighing necessary information for decision making.

1. To make an order appointing a guardian, we must be satisfied BDS is currently in need of a guardian as required by s 20(1)(c) of the Act.
2. Mr Harbottle submitted there is an ongoing need for a guardian for BDS due to her impaired decision-making about the following personal matters:
   • where and with whom BDS lives, whether permanently or temporarily;
   • who may contact or visit BDS;
   • the provision of care services;
   • consenting to or refusing to or withdrawing consent to the provision of healthcare or medical or dental treatment for BDS;
   • and any legal matters that relate to BDS's personal affairs.
3. The applicant advised there was no longer a need for the application of the powers in s 28 of the Act.
4. It is clear from the evidence there are decisions to be made with respect to BDS's health care on an ongoing basis. There is dispute between family members around the appropriate treatment for skin cancers, chronic leg ulcers, the retention of fluid in BDS's legs and the use of a recliner chair to elevate BDS's legs, the choice of medical practitioner and ensuring BDS can attend medical appointments.
5. When ISE attempted to arrange medical care for BDS she faced difficulties which prevented BDS receiving adequate care. There is disagreement as to whether a webster pack for medications is beneficial for BDS with KS insisting that she did not need a webster pack and it was better for BDS to "use her brain and to keep her mentally stimulated". Despite the advice from health care professionals as to the use of a 4-wheelie walker by BDS, KS is opposed to its use because of his view that it made BDS's "posture lean forward" and "she needed to be maintaining a more upright posture and picking her feet up". Other family members supported its use for its safety benefits and because BDS is a falls risk. KS advised he did not accept his mother was a falls risk or that the 4-wheelie walker would reduce the falls risk.
6. Evidence was provided that the Public Trustee has deemed BDS's house unsafe for her to live in until repairs can be undertaken to bring the property to a reasonable standard. Until that can occur, BDS cannot be discharged from hospital. At the time the review application was filed, repairs to the home could not be arranged as KS was refusing entry to contractors. BDS had also refused to give contractors permission to enter the home. KS had also refused entry to family members when they have tried to meet with BDS or support her to medical appointments. KS's behaviour in turning away tradesmen has impacted BDS's ability to be discharged from hospital and return to her home.
7. Mr Harbottle advised the trajectory has always been to support BDS's return home if possible, and the activities the Public Trustee has undertaken in conjunction with the Public Guardian has resulted in a likely discharge home for BDS the following week.
8. The Public Guardian further submitted a guardian was required to ensure appropriate support services are arranged to enable BDS to remain living independently. There was evidence of difficulties previously with services being engaged and with access to the property for those services because of BDS's concerns regarding cost. The Public Guardian advised it was important to ensure there was a substitute decision maker for support services, to manage those services, to ensure access to the property by those services and for the continuity of the services.
9. The Public Guardian advised there was a need for an order in relation to who may contact or visit BDS which importantly will ensure support services are allowed to enter the home and that family members are able to safely visit BDS. It is clear to promote BDS's personal and social wellbeing that BDS be able to maintain a relationship with all family members independently of each other notwithstanding the conflict between those family members.
10. The Public Guardian advised a legal power will be necessary if a restraint order is required, noting when BDS returns home there will be significant changes which will need to be implemented to enable her to remain living safely and independently in her own home. While the Public Guardian hopes that difficulties could be overcome with the restriction of visits or the involvement of Tasmania police ultimately the Public Guardian submitted it would be important to have the power to make legal decisions in respect of personal matters. The Public Trustee advised it had received advice that a legal power would be required because if difficulties arose an application for a restraint order would be required.
11. The Public Trustee advised it supported the appointment of a guardian for the personal matters referred to at [24].
12. We are satisfied there is a need for the ongoing appointment of a substitute decision maker for BDS based on the evidence presented at the hearing and detailed in the review application. Mr Harbottle provided significant justification for the ongoing need for a guardian. The inability to resolve differences of opinion with BDS's family, especially concerning medical treatment and care services, was creating significant barriers to making decisions that would promote BDS's personal and social wellbeing. It was also important BDS be able to maintain relationships with all family members despite the conflict and if that conflict escalated the guardian have the power to protect her by way of application for a restraint order. The Public Trustee agreed based on legal advice that a restraint order was a potential cause of action.
13. A Guardian for the matters outlined in [24] will enable medical, dental and health decisions to be made promoting BDS's health and wellbeing. It will ensure BDS is in safe accommodation and is not subject to abuse, or harm. Having regard to BDS's familial relationships an order will support BDS to have safe interactions with members of her family. An order recognises the importance of support services for BDS and will facilitate access to and provision of such services

1. BDS is opposed to the appointment of a guardian and does not agree with Dr Morrissey's finding that she has dementia, impaired cognitive ability and impaired decision making in respect of personal matters. BDS advised she did not need a guardian at the moment, she could manage herself and that she had no health and memory problems. BDS when asked had no recollection a guardian had been in place since 16 January 2025 serving to reinforce the advice of Dr Morrisey in the HPR.
2. If a guardian were to be appointed, BDS advised she wished for it to be kept in the family commenting she sees KS every day and if anything happens to KS she can rely on family.

Can BDS's needs be met by other less restrictive means

1. No evidence was put before us as to a less restrictive means of meeting BDS's current needs other than by the appointment of a guardian and whilst we have considered this question, it is apparent that there are matters to be dealt with that can only be dealt with by the appointment of a guardian for the personal matters detailed at [24].

Wishes and preferences of any close family members, carers, other significant persons in BDS's life

1. TS and ISE support the appointment of a guardian while KS opposed such appointment as he did not think an order was necessary. One matter about which all parties agreed was the importance of BDS being able to return to her home as a priority.

Promotion of BDS's personal and social wellbeing

1. The promotion of BDS's personal and social well being is integral to our decision-making process. Amendments to the Act have shifted the focus of enquiry from a best interests approach to one that prioritises the promotion of a person's personal and social wellbeing.
2. The application details that BDS is living in fear which impacts on her ability to live her life. Further, that the level of coercion, which is occurring within BDS's home, is impacting BDS so significantly that she no longer appears to be able to self-advocate or live as she wishes. The application also details that BDS is frightened to upset KS, and this prevents her from taking any action herself. BDS is isolated and KS has restricted her contact with other members of her family, and her access to services and supports. When these concerns were raised with KS he denied these allegations saying, "all jumping on the band wagon, blackening my name". KS stated he would follow advice, and denied he was coercive and controlling of his mother.
3. Ms Pritchard reported that BDS wished to use the webster pack, but KS told her she had to use her brain. However, she did not wish to use the 4-wheelie walker because she said the last fall she had was her fault, and she is not susceptible to falls. Ms Pritchard advised BDS acknowledges that KS does tell her what he thinks is best for her, but BDS says she ignores what she wants to ignore. Ms Pritchard reported the example BDS had given to her which was "if I want a lolly and KS does not want me to have one, when his back is turned I will." BDS further acknowledges KS "is vocal and quite verbal in having his say" and they do speak strongly to each other at times, but she would be devastated if any one of her family were being restricted from access to her because her family are extremely important to her as is her privacy.
4. The application details that "since the last hearing at TASCAT BDS's home has been locked to visitors and BDS is no longer taking calls from family members and is uncontactable." A guardianship order will safeguard BDS from harm and promote her personal and social wellbeing, by allowing her to live her life without fear and engage more in the life of the community.
5. We are satisfied that appointing a guardian with the appropriate authority to provide substitute, health care or medical and dental treatment, care services, contact or visits to BDS and legal matters will ensure BDS's central needs are properly addressed and that she is not subjected to decisions that could adversely affect her health and wellbeing. Consequently, we are satisfied the appointment of a substitute decision maker will promote BDS's personal and social wellbeing by ensuring that decisions are made in a way that preserves her dignity and addresses her ongoing personal needs.

1. There was no agreement as to who should be appointed guardian. The Public Guardian was seeking appointment as guardian for the matters referred to at [24]. KS sought appointment for all matters for whom a guardian was sought, and ISE sought appointment for consenting to or refusing to or withdrawing consent to the provision of healthcare or medical or dental treatment for BDS.
2. It is mandated in s 21(a) of the Act that we take into account BDS's wishes and preferences when assessing ISE and KS's suitability to be her guardian.
3. As detailed at [36] BDS did not recall she had a guardian even though she had done so since 16 January 2025, which is telling of her impaired cognitive function and indicative of the weight which should be afforded to BDS's views. Although a mandatory consideration we are not obligated to act on BDS's stated will and preference if there is no basis to do so taking into account the additional mandatory considerations in s 21(a); Quigley J in VHX v JZT [2024] VSCA 238 at [71].
4. The evidence before us made it clear KS is not a suitable person to be appointed as guardian for BDS. There are numerous concerns raised in relation to KS's ability to make appropriate decisions for BDS, particularly if those decisions do not align with his own views. For example, the use of a webster pack, use of a recliner chair to reduce fluid retention in BDS's legs, treatment of her chronic leg ulcers, the use of a 4-wheelie walker, the installation of hand rails and other improvements at BDS's home to enable her to live safely and independently at the property. Concerns regarding KS's coercion, control and obstruction of BDS's care have been raised not only by family members but also by Dr Morrisey, the Public Guardian, the Public Trustee, and the Tasmania Health Service social worker KX in her report of the 13 December 2024. KS dismissed those concerns and provided no adequate explanation for why multiple independent organisations would raise these matters.
5. KS told the Tribunal the relationship between KS, TS and ISE had only broken down since 16 January, once the guardianship application had been filed with the Tribunal. He told the Tribunal he was not sure if the break down in relationship could be "re-mended". If he were appointed guardian, he told us he would liaise with his sibling and niece in relation to BDS's care by text or phoning. KS maintained that BDS did not need a guardian, and that she can make an independent, informed choice. When questioned by the Tribunal, if he were appointed guardian and given medical advice about treatment BDS might need, if he disagreed with the treatment, whether he would he follow his own views. KS responded he would get a second medical opinion.
6. In respect to KS's suitability for appointment as guardian we refer to the evidence of Dr Morrissey regarding BDS's decision-making ability for care services including home care and support services, that, "KS rejects the need for carers for his mother. He believes they are the lowest of the low and are only interested in locking BDS up". BDS, although minimising her needs and unable to recognise the full extent of her care requirements, enjoys the visits of the carers. BDS told Dr Morrissey "I enjoy seeing the girls". Dr Morrisey advised that due to the combined effects of her dementia and the coercion of her son, BDS is unable to access appropriate care.
7. Further, in relation to medical and/or dental treatment, Dr Morrissey advised:

KS cannot be relied upon to make decisions regarding BDS's medical assessment and care that are in her best interests. He currently acts in the person responsible role due to his exclusion of others and BDS's physical inability and cognitive impairment.

8. KS lacks the necessary interpersonal skills required to act as BDS's guardian given the evidence of his inability to work with others involved in BDS's care. Given these considerations, we are not satisfied that KS is the appropriate person to act as BDS's guardian, as his behaviour challenges the trust and collaboration needed for effective decision-making.
9. 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 KS understands these obligations and duties or would be able to act in accordance with them.
10. Additionally, pursuant to s 21(4)(g) of the Act, we must also be satisfied KS has the necessary skills to competently perform the role of guardian. Given the evidence of KS's behaviour detailed at [48], which includes, not allowing support services or equipment to assist BDS's mobility into her home, nor home improvements. We cannot be satisfied that KS meets the requisite standard of capability.
11. We formed the view that while ISE is suitable for appointment in respect to health care, medical or dental decisions, given the obstruction from KS in her previous efforts in this role and given the substantial changes to be implemented by a guardian it would be unlikely she would be able to properly exercise her power without interference and obstruction from KS.
12. Moreover, there is plainly a need for an independent and impartial decision-maker to act as a substituted decision maker. While the Public Guardian advised the least restrictive option was for this power to be granted to a family member, it acknowledged there may be a need for an independent substitute decision maker taking into account the difficulties previously experienced by a family member in this role. We acknowledge the Public Guardian's role can assist in maintaining BDS's relationships with her family members, which is important to her personal and social wellbeing. Appointing the Public Guardian ensures that BDS's needs are met in a way that respects her rights and preferences, while also safeguarding her physical and emotional wellbeing. Based on the evidence before us we are satisfied the Public Guardian should be appointed.

1. While noting the evidence of Dr Morrisey that BDS lives with dementia and her circumstances are therefore unlikely to change such that the need for a guardian would be mitigated we determined the least restrictive approach was for the appointment of the Public Guardian for a 12 month period.

1. The Public Guardian (Tas) is appointed as guardian of BDS until 29 April 2026 with the authority to make substitute decisions for the following personal matters:
   1. Where and with whom BDS lives with permanently or temporarily;
   2. Who may contact or visit BDS;
   3. The provision of care services to BDS;
   4. Consenting to, or refusing, or withdrawing consent, to the provision of health care or medical or dental treatment for BDS;
   5. Any legal matters that relate to BDS's personal affairs.