Review of the Guardianship and Administration Act 1995
The former Attorney-General of Tasmania, the Hon Vanessa Goodwin, requested the Tasmanian Law Reform Institute (TLRI) to review the Guardianship and Administration Act to confirm it continues to meet the needs of people with impaired decision making capacity, and that it is in line with international human rights laws.
The Tasmanian Law Reform Institute was asked to report on the need for there to be changes to the Act, considering issues including:
- the general principles set out in the United Nations Convention on the Rights of Persons with Disabilities
- any developments in policy, law and practice in Tasmania and other jurisdictions that may affect persons with impaired decision making capacity since the Act commenced; and
- whether the current guardianship and administration framework will continue to meet the needs of Tasmanians into the future.
In December 2017, the TLRI released a detailed Issues Paper, and asked for responses from the community. The issues paper can be downloaded from the following links:
The issues paper can be downloaded from the following links:
- Issues Paper - Review of the Guardianship and Administration Act 1995
- Issues Paper – Review of the Guardianship and Administration Act 1995 - Easy read version (PDF, 107 pages)
Submission by the Office of the Public Guardian
The Office of the Public Guardian responded to the questions raised in the TLRI’s Issues Paper. We advocated for changes in the law that will encourage independence in decision-making, and for a shift in focus from the protective “best interests” approach to one that supports the wishes, will and preferences of the represented person. We strongly agreed with the inclusions of arrangements for supported decision-making, acknowledging the informal support given by family and friends, and keeping guardianship and administration orders as a last resort.
Our submission includes a number of recommendations to strengthen the role of the Public Guardian, particularly in relation to:
- conducting investigations
- dispute resolution
- community education
- support for other substitute decision makers and decision supporters
- systemic advocacy; and
- a community visitor scheme for the disability and aged care sectors.
Final Report by the Tasmanian Law Reform Commission
On 16 December 2018, the TLRI released its Final Report. The Report recommends significant reform of guardianship law, policy and practices. The recommendations are more closely aligned with the requirements of the United Nations Convention on the Rights of Persons with Disability, with the guiding principles ensuring decision-making focuses on the person’s will and preferences. The Report recommends a step-by-step decision-making process, and makes it clear that a person’s ability to make decisions with supports is fundamental.
Other key recommendations include:
- a legislated supported decision-making framework, with guardianship and administration appointments retained only as a “last resort”
- decisions about a person’s life being based upon their views, wishes, preferences and rights, removing the ‘best interests’ test
- inclusion of advanced care directives within the Act; and
- reforms to prevent, better detect, and respond to abuse and neglect of people with a need for decision-making support.
The Report, together with an Easy Read version of the recommendations, is available on the Institute's webpage:
Response by the Office of the Public Guardian to the Final Report
The Office of the Public Guardian congratulates the TLRI on the thorough work it has undertaken in the preparation of its Report on the review of the Guardianship and Administration Act 1995. We agree with the vast majority of the TLRI’s recommendations, and look forward to working with the State Government and all our partners to further consider the report and implementation of the recommendations agreed on. The Office of the Public Guardian has written a more detailed response to the TLRI’s recommendations.