Information for guardians
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
All guardians 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 act on behalf of the person with a decision-making disability.
The about guardianship section provides further information about the things the Tribunal will consider when deciding who to appoint as a guardian.
More information on the role of the Public Guardian is available from the About us section.
More information is available from the Information for private guardians section.
What is the Tasmanian Civil and Administrative Tribunal?
The Tribunal can make decisions for the benefit of persons who have a disability and are unable to make reasonable judgements about lifestyle and financial matters.
The functions of the Board are extensive and include powers in relation to:
- Enduring guardianship
- Enduring powers of attorney
- Emergency situations
- Consent to medical or dental treatment
- Statutory Wills
- Appointment of a Guardian or Administrator made outside Tasmania
More information about the Board's role and processes is available from the Tribunal's website.
What is a guardianship order?
A guardianship order is a legal document which states what decisions a guardian can make for the adult who is the subject of the order (the ‘represented adult’).
The Tribunal will give a copy of the order to each guardian and the represented adult after it is made.
What is impaired decision making capacity?
Decision-making capacity is the ability to make decisions for yourself. We are all assumed by law to have the capacity to make our own decisions as this is a human right.
Capacity 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 may lack decision-making capacity when 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 capacity 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 with a disability lacks capacity for decision-making in relation to lifestyle matters or financial matters.
See below for more information on supported and substitute decision making.
Most people with decision-making disabilities are supported to make decisions about their lives on a regular basis. Supporting a person with a disability to make their own decisions wherever possible is an important way to assist them to uphold their rights.
There are many ways a person can be supported to make their own decisions such as:
- helping them to understand their options and providing information in a way that is meaningful and accessible to them
- minimising things that might make it hard to process information (e.g. noise or distractions)
- giving them enough time to consider the relevant information and repeating it if required
- using assistive technology or helping them communicate a decision
Sometimes, it is not possible to support a person with a disability to make a decision or take certain actions to prevent significant harm. In these situations, there may be a need for someone to make a decision on their behalf. When a decision is made on behalf a person who lacks capacity, this is called a substitute decision.
In Tasmania, the Guardianship and Administration Act 1995 sets out the framework for guardianship, and other types of substitute decision-making for adults who have decision-making disabilities. Substitute decision-making is restrictive as it limits a person’s right to make decisions for themselves and is generally considered a last resort.
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
- the 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