About guardianship
When a person lacks the ability to make decisions, sometimes there is a need for a person with formal authority to make decisions on their behalf.
A guardian is someone with legal authority to make important health and lifestyle decisions on behalf of a person who has a disability and impaired decision-making.
Health and lifestyle decisions are about significant personal matters like:
- where a person lives
- their healthcare and medical treatment
- the support services they receive
- who they have contact with
A guardian cannot make financial decisions. Authority to make financial decisions is known as administration. More information on administration or applying for the appointment of an administrator is provided in this administration fact sheet from TASCAT.
Guardianship is normally considered a last resort as it is restrictive and limits a person’s right to make decisions for themselves.
An easy read fact sheet on what people can expect from their guardian is available.
Who can be a guardian?
A guardian may be:
- A Private Guardian – a suitable family member or friend; or
- The Public Guardian – when no other suitable person is available or when there is conflict
A guardian must be aged 18 or over and be appointed under a guardianship order by the Tasmanian Civil and Administrative Tribunal (TASCAT) - protective division, guardianship stream (Tribunal).
When deciding who to appoint as a guardian, the Tribunal will consider who is most suitable to carry out the role.
To find out more about the Public Guardian or private guardianship please see the About us section or the Information for private guardians section.
When a guardian may be needed
A guardian may be needed when:
- there are significant decisions to be made and a need for legal authority to give effect to a decision
- a person is unable to make a significant decision themselves, even with support
- there is disagreement about the decision/s or options
- there is no-one else involved who has formal authority to make decisions
- there is significant risk to the well-being and safety of the person if a particular course of action is not taken
What is impaired decision making ability?
Decision-making ability is the ability to make decisions for yourself. We are all assumed by law to have the ability to make our own decisions as this is a human right.
Ability to make decisions can sometimes be impaired due to the impact of a disability or condition that affects our ability to make decisions.
A person's decision-making ability may be impaired if they are unable to:
- understand information relevant to a decision
- remember the information long enough to make a decision
- consider the different choices and their consequences and weigh them up
- communicate their decision by some means
Sometimes it is unclear or there is dispute about a person’s ability to make decisions.
A person’s ability for decision-making can be formally assessed by a health professional such as a medical practitioner or psychologist.
In Tasmania, only the Tribunal can make a formal determination that an adult lacks the ability or capacity to make decisions about personal or financial matters.
More information about supported and substitute decision making is available on Information for guardians.
How is a guardian appointed?
A guardian can be appointed by the Tribunal. This requires an application form to be completed and a Health Care Professional Report to be provided to the Tribunal with the application. The Tribunal will hold a hearing before deciding if a guardianship order should be made.
An adult who has decision-making ability can also appoint a guardian via an Enduring Guardianship instrument. To appoint an Enduring Guardian you will need to complete an Instrument Appointing an Enduring Guardian/s.
For more information see applying for guardianship page or the Planning Ahead webpage.
Principles of guardianship
Guardianship is a significant responsibility. All guardians must make decisions and act in a way that reflects the principles of the Guardianship and Administration Act 1995. This means acting in a way that:
- Assists the person to carry out their wishes as far as possible
- Promotes the rights and best interests of the person
- Is the least restrictive of the person’s freedom to make their own decisions and be as independent as possible
Recognition of interstate orders, instrument and directives
Each Australian state and territory have their own legislation governing guardianship and administration. Orders, instruments (Enduring Guardianship instrument and/or Enduring Power of Attorney instrument), and directives (Advance Care Directive) are not automatically recognised in Tasmania. For an insterstate order, instrument or directive to be recognised in Tasmania, an application will need to be made to TASCAT.
TASCAT have a helpful fact sheet about recognising interstate orders, instruments and directives.
Further information
If you have questions about the role or authority of an enduring guardian you can contact the Office of the Public Guardian for more information. Further information is also available via the links below.
TASCAT - Enduring Guardianship fact sheet
Legal Aid Tasmania – Enduring Guardianship Fact Sheet
Tribunal – Enduring Guardianship Instrument (PDF, 90.4 KB) (PDF, 196.9 KB)
Coversheet for Service Tasmania (PDF, 82.0 KB) (PDF, 134.4 KB)