Guardianship and Administration Act 1995

Adults with impaired decision-making ability: The primary focus. Any adult who cannot independently make decisions about personal or financial matters may be the subject of an order.

Families and carers: Family members are the primary pool from which guardians and administrators are drawn, and are among the people entitled to make applications for orders. Close family members are part of the "person responsible" hierarchy for medical consent.

Medical and health practitioners: Must comply with the consent framework in Parts 6 and 6A when treating patients with impaired decision-making ability. Cannot proceed with treatment without appropriate consent or Tribunal approval for special treatment.

The Public Guardian: Has broad advocacy, monitoring, and default appointment functions. Must be appointed as guardian of last resort if no suitable private guardian is available (section 21(1)(b)).

State Trustee / Public Trustee: May be appointed as administrator of last resort for financial matters.

Researchers (Part 6A): Health and medical researchers seeking to involve persons with impaired decision-making ability in research must obtain appropriate consent or Tribunal approval.

Guardians (section 26): Must promote the personal and social well-being of the represented person; act in accordance with the Act's principles; act honestly, diligently, and in good faith; treat the person with respect and dignity; communicate in ways the person can understand; keep the person informed; consult with other guardian or administrator; advocate for the person; encourage and support development of decision-making ability; and protect from violence, neglect, abuse, and exploitation. Must make reasonable efforts to find and obtain a copy of any advance care directive.

Annual reporting (Part 9): Guardians and administrators must provide annual reports to the Tribunal about their conduct of the represented person's affairs. The Tribunal must review orders at intervals not exceeding three years.

Notification of changed circumstances (section 21A): A guardian who becomes ineligible must inform the Tribunal as soon as practicable.

Record keeping (section 27A): Guardians must keep records as prescribed.

Person responsible for medical consent: When a person has impaired decision-making ability, the person responsible must consent before medical or dental treatment is carried out, unless the treatment is urgently needed.

TCAT (Tribunal) powers (Part 4, Division 2): The Tribunal may make a guardianship order appointing a guardian for specified personal matters if satisfied the person has impaired decision-making ability, is in need of a guardian, and an order will promote their well-being (section 20). Orders can be for up to three years and must be the least restrictive available (section 24).

Tribunal powers for administration orders (Part 7): Similar structure for financial matters. The Tribunal may appoint an administrator to manage some or all of a person's financial affairs.

Tribunal powers for special treatment (Part 6): The Tribunal must consent to special treatment on behalf of a person with impaired decision-making ability. The Tribunal weighs the potential benefit against the impact on the person and their wishes.

Guardian's authority (section 25): A guardian has the power to make decisions about the personal matters specified in the order. Decisions by the guardian have legal effect as if the represented person had made them with full capacity. A guardian may sign documents and do all things necessary to give effect to their powers.

Emergency orders (Part 8): A Commissioner or officer of the Tribunal may make emergency orders without a hearing in urgent situations.

Consent to treatment (Part 6): The person responsible may consent to or refuse treatment on behalf of a person with impaired decision-making ability. For special treatment, Tribunal consent is required. There are provisions for emergency treatment without consent.

Obstruction of decision-making ability assessment (section 13(3)): Intentionally or recklessly interfering with or affecting the assessment of another person's decision-making ability is an offence: fine not exceeding 20 penalty units.

General offences: The Act provides various offences for non-compliance with Tribunal orders and directions. Guardians and administrators who fail to comply with Tribunal requirements can face review, removal, and potential personal liability.

Enduring guardian provisions: An enduring guardian who acts in breach of their duties can be removed by the Tribunal and may face liability under the Act or at general law for loss caused to the represented person.

Applying for a guardianship or administration order:

1. Application lodged with the TCAT registrar in prescribed form, specifying grounds (section 19).
2. TCAT holds a hearing, considering the person's wishes and preferences, less restrictive alternatives, and the wishes of close family members (section 20).
3. If satisfied, Tribunal makes an order specifying the personal or financial matters the guardian or administrator can deal with (section 20(3)).
4. Order lasts up to three years unless the Tribunal specifies a shorter period (section 24).
5. Annual reports required; review by Tribunal at not more than three-year intervals.

Appointing an enduring guardian (Part 5):

1. Person (while having capacity) executes instrument of appointment in prescribed form, naming the enduring guardian and specifying the matters they can decide.
2. The appointment has no immediate effect; it only takes effect when the appointing person has impaired decision-making ability.
3. The Tribunal may review or revoke an enduring guardianship on application.

Advance care directive (Part 5A):

1. Person (while having capacity) makes a written directive in a form satisfying Part 5A requirements.
2. Directive has effect when the person has impaired decision-making ability.
3. Health practitioners must not carry out treatment that is refused in the directive unless specific exceptions apply.

Medical consent in practice:

1. Health practitioner identifies that patient may have impaired decision-making ability.
2. Identifies the "person responsible" in the hierarchy at section 4.
3. Obtains consent or refusal from the person responsible.
4. For special treatment (sterilisation, termination of pregnancy, removal of non-regenerative tissue), must apply to the Tribunal.

Tasmanian Civil and Administrative Tribunal Act 2020: The TCAT is established under this Act. Guardianship jurisdiction is allocated to the Guardianship stream of the Tribunal. Procedural rules for hearings, appeals, and reviews are largely in the TCAT Act.

State Service Act 2000: The Public Guardian and Deputy Public Guardian are appointed under this Act (section 14).

Health Practitioner Regulation National Law (Tasmania): Used in definitions of "health practitioner" and "registered health practitioner," connecting the Act to the national health practitioner registration scheme.

Forensic Procedures Act 2000: The Public Guardian can become the person responsible for forensic procedures on police or practitioner request (section 4(1A)), linking the guardianship framework to the forensic investigation regime.

Children, Young Persons and Their Families Act 1997: Where a child is under the guardianship of the Secretary administering that Act under a care and protection order, the Secretary is taken to be the person responsible (section 4(2)).

Relationships Act 2003: The definition of "spouse" includes persons in significant relationships within the meaning of that Act, broadening the scope of the person responsible hierarchy.

UN Convention on the Rights of Persons with Disabilities: Referenced in the definitions (section 3) and reflected in the principles of the Act. The 2021 and 2023 amendments brought the Act closer to CRPD principles of supported decision-making.

Major 2021 and 2023 reforms: The Act was substantially amended. Part 2 (which contained the decision-making ability framework) was repealed in 2021 and replaced with new provisions. Section 11 still defines decision-making ability, but the context around it changed. The 2023 amendments (Act No. 21 of 2023, applied 1 September 2024) made further changes to guardianship order criteria, enduring guardian provisions, and the overall framework. Practitioners must ensure they are working from the current text.

"Least restrictive" obligation is mandatory: The Tribunal must not make an order unless satisfied it is the least restrictive measure available. If a supported decision-making arrangement or other less restrictive alternative would meet the person's needs, an order should not be made. This is a substantive gatekeeping requirement, not a formality.

Guardian's authority does not extend to all personal matters automatically: The guardianship order specifies which personal matters the guardian can decide (section 20(3)(a)). A guardian only has authority within those specified matters. If a new issue arises outside the specified matters, further Tribunal authority may be needed.

Advance care directives override the person responsible: Under Part 5A, a valid advance care directive takes precedence over the consent of the person responsible for the health care decisions it covers. A health practitioner who knows of the directive must comply with it (subject to specified exceptions).

Enduring guardian appointment survives loss of capacity: The instrument of appointment takes effect when the appointor loses decision-making ability and generally cannot be revoked by the appointor after that point (subject to Tribunal intervention). This is fundamentally different from an ordinary power of attorney which lapses on incapacity.

Guardianship application: An elderly woman with advanced dementia can no longer make decisions about where she lives or who visits her. Her daughter applies to the TCAT for a guardianship order naming herself as guardian for these personal matters. The Tribunal holds a hearing, considers the mother's expressed preferences from before she lost capacity, considers whether other supports could meet her needs without an order, and, if satisfied, makes an order specifying that the daughter is appointed guardian for decisions about accommodation and contact for a period of two years.

Medical consent: A 45-year-old man with an intellectual disability has impaired decision-making ability. He needs a surgical procedure. The treating surgeon identifies the "person responsible" hierarchy: his guardian (if one is appointed for health matters), otherwise his spouse, otherwise the person having care of him, otherwise a close family member. The person responsible consents or refuses on his behalf.

Special treatment: A woman with severe intellectual disability is proposed by her family to undergo sterilisation. This is "special treatment" under section 3(a). No one, not even a guardian, can consent to this without an application to the Tribunal. The Tribunal holds a hearing, appoints a separate representative for the woman if needed, considers all the evidence, and consents or refuses the treatment.

Advance care directive invoked: A person with Alzheimer's disease, while still having capacity three years earlier, executed an advance care directive refusing artificial nutrition and hydration in certain circumstances. She now has impaired decision-making ability and those circumstances have arisen. The health practitioners must comply with her directive, and cannot act on the person responsible's wish to provide the rejected treatment, unless a specific exception in Part 5A applies.