Review of the Guardianship and Administration Act 1995 (Tas), Tasmanian Law Reform Institute Issues Paper No 25

Who does the Act apply to?The Guardianship and Administration Act 1995 (Tas) (the Act) is relevant to people living with disability and their families and carers. It is also relevant to adults who want to plan for future decision-making impairments by appointing an enduring guardian to make decisions about personal matters. The Act potentially impacts all Tasmanians who may, at some point, be unable to give their own consent to medical or dental treatment.

What does the Act do? The Act enables the Guardianship & Administration Board (the Board) to appoint decision-makers for people with disability in some circumstances. The Board may appoint guardians to make personal decisions, and administrators to make financial decisions. These roles are distinct. Guardians do not have powers over financial matters, and administrators do not have powers over personal matters. In practice, their roles sometimes overlap. In this Issues Paper, when referring to both guardians and administrators, the term ‘representatives’ is used.

Appointment of representatives: The fact that a person has a disability does not mean that a representative will be appointed to make decisions for them. In general terms, representatives are only appointed if a person is unable to make their own decisions because of a disability, a representative is needed to make a substitute decision and that need cannot be met by less restrictive means.

Establishment of the Board and the Public Guardian:The Act establishes the Board and sets out its functions and powers. In addition to appointing representatives, the Board also supervises representatives. The Act also establishes the Public Guardian as an independent statutory officer.

Consent to medical and dental treatment:The Act deals with the giving of consent to medical and dental treatment (treatment) where a person is incapable of providing their own consent. It sets out when consent to treatment is not required. It creates the role of the ‘person responsible’ and gives the person responsible authority to consent to certain treatment. The Act also enables the Board to consent to treatment, including ‘special treatment.’

What effect does the Act have? Application of the Act can have implications for many aspects of a person’s life. Someone with a representative appointed to make decisions on their behalf (a ‘represented person’) may have a different experience in the community to those without a representative appointed.