Changes to the Guardianship and Administration Act
The Guardianship and Administration Act (1995) (the Act) was amended in September 2024. The legal changes place greater emphasis on supported decision-making. A person with impaired decision-making ability must be given every opportunity to make their own (supported) decision, before an application for guardianship is made, or before a guardian is approached to make a decision on their behalf. Below are details on the changes to the Act, and what this means for people with guardianship orders.
Why did the Act change?
Changes were made to the Act 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 a Disability (CRPD). The changes to the Act help to meet obligations under this convention.
The amendments emphasise the right of people with impaired decision-making ability to receive support for decision-making and further ensure that the person's wll and preference guide the decisions and processes that affect them. This contrasts with the former 'best interest' approach which allowed a decision-maker to judge what was in the person's best interests.
Shared responsibility and guardian decision-making (private and public guardianship)
It is the role of carers, families, and service providers to support a person to make their own decisions in the first instance. Types of decision-making support can include providing information in a format the person can understand (such as Easy Read materials), discussing their choices in plain language, assisting the person to weigh up the positive and negative outcomes of different decisions, or by personally visiting an option (such as a potential new house or meeting with a person from a potential new support organisation.
An appointed guardian has the responsibility to:
- Give effect as far as practicable, to the person's views, wishes and preferences; and
- Act in a manner that promotes the person and social wellbeing of the person.
This means a guardian can only override a person's will and preference 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.
La Trobe University offer a free online resource about supported decision-making available here: The La Trobe Support for Decision Making Practice Framework Learning Resource - ABOUT
Other changes made to the Act
Other significant changes to the Act include:
- 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 that 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 to 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.
A fact sheet about the legislative changes to the Act is available.