Summary of Key Amendments to the Guardianship and Administration Act 1995

Why is the law changing?

The changes to the Act intend to give effect to some of the recommendations in the Tasmanian Law Reform Institute’s Review of Guardianship and Administration Act 1995: Final Report 2018.

There has been a broad shift in the approach to substitute decision-making at a national and international level in line with the United Nations Convention on the Rights of Persons with Disability (CRPD). The changes to the Act will also help meet obligations under this convention.

Rights, will and preference approach

The amendments emphasise the right of people with impaired decision-making ability to receive support for decision-making and will further ensure that the person’s will and preferences guide the decisions and processes that affect them. This contrasts with the current ‘best interest’ approach which allows decision-makers to judge what is in the person’s best interests.

Substitute decision-making practice

The current law requires that guardians consider three main things when making decisions:

1) that the decision is the least restrictive of the person’s autonomy and right to make decisions

2) that it is in their best interests and

3) that their views and wishes are carried into effect where possible.

The OPG’s current practice approach prioritises the views and wishes of the people we represent by adopting a risk enablement approach. This means that a person’s wishes are upheld, even in circumstances where there is a degree of risk.

The changes to the law will mean that a guardian (from the OPG or a private guardian) can only make a decision that overrides a person’s will and preference in narrow circumstances where there is a risk of serious harm. This change intends to further balance the promotion of a person’s rights and autonomy with safeguarding and protection.

Shared responsibility

The changes to the Act will mean people with impaired decision-making abilities must be provided with the support they need to make decisions. This will mean shared responsibility between all stakeholders to provide decision-making support and promote the dignity of risk in decision-making.

There will be an expectation under the law that all reasonable options to support a person to make a decision will be explored and exhausted before options for substitute decision-making, such as guardianship, are considered.

Dispute Resolution Service

The OPG’s Dispute Resolution Service will also be expanded under the proposed changes. Our service will be able to assist to resolve disputes over certain guardianship and administration conflicts, as well as in relation to advance care directives. This provides an alternative to the Tribunal process for appropriate matters.

Other changes

The amendments will include other significant changes including:

• Updated approaches to the appointment of guardians and administrators by the Tasmanian Civil and Administrative Tribunal (TASCAT)
• A definition and new legal test of decision-making ability (decision-making capacity) that will consider a person’s ability to understand, weigh and retain information relevant to a decision and communicate the decision by some means
• Regulation of health and medical research to allow access for people who may be unable to give informed consent to the benefits of participating in trials (that are subject national ethical research guidelines)
• Changes to conflict-of-interest provisions to prevent potential barriers to close family members being appointed as private guardians and administrators.

More Information

For further information regarding the proposed amendments, you can read the Guardianship and Administration Amendment Act 2023.

For further information about supported decision-making, La Trobe University provides a free support for decision-making resource.