The Tasmanian Civil and Administrative Tribunal (TASCAT) is a state-wide independent body providing legal proceedings resolution services across a range of areas of the law.

TASCAT oversees nine Tribunals, and the Guardianship Stream is the Tribunal which makes decisions regarding people with decision-making disabilities. Under their mission statement, they are bound to operate in accordance with the law, be sensitive to the needs of people with disability, reflect their rights and interests, as well as those of their families and carers and the Tasmanian community, and be efficient and effective as a Tribunal.

Many families have asked us what happens when their young person with disability turns 18. Will they need a Guardian to look after their interests? Who will help them administer their finances if they have impaired decision-making capacity? Who is authorised to make medical decisions on their behalf if they are unable to indicate their consent? What can parents and carers do to ensure their young adult’s best interests are taken into account as they get older, and parents may no longer be around?

Most people over 18 with disabilities will not need a Guardian, even if their decision-making capacity is impaired. A Person Responsible can make decisions with them, or on their behalf if necessary due to decreased capacity. An Administrator can be appointed to manage a person over 18’s finances. Usually a Guardian is only appointed if the decisions required for the support of a person with disability over the age of 18 cannot be met in other ways.

Person Responsible

A Person Responsible is generally the next of kin but doesn’t have to be family. For a child, the Person Responsible for decision making will be the child’s parent or their spouse if they have one. For people over 18, under the Guardianship and Administration Act 1995 (the Act), the Person Responsible will be a Guardian, a spouse or other person in a close relationship, an unpaid carer or a close relative or friend who has a personal interest in the person’s welfare.  The Person Responsible cannot be a paid carer, or a doctor or someone who has a formal role with the young person or adult. A Person Responsible can make medical decisions for children and adults with disability who do not have capacity to consent to treatment.

Administrator

An Administrator is a person or agency who has been appointed by TASCAT to manage the estate or make financial decisions on behalf of an adult who lacks capacity to make such decisions because of disability.

The Administrator is responsible for care and management of the person with disability’s financial affairs. They cannot make personal decisions such as health care on the person’s behalf. This is the responsibility of the Person Responsible or the Guardian.

The Administrator must act in the person’s best interest, encourage and assist them to build capacity to administer their own estate, and take their wishes into account as far as possible.

TASCAT will only appoint an Administrator if the person with disability has impaired capacity to make reasonable judgments about their own finances.

In order for an Administrator to be appointed, the Tribunal must be satisfied that they are a suitable person to act on the person with disability’s behalf, acting in their best interests, and having enough expertise and practical skill to keep records and report to the Tribunal annually on the represented person’s income, assets, liabilities and expenses.

To become an Administrator you must:

– complete the application form;

– obtain a Health Care Professional Report detailing the person’s disability and capacity to make decisions;

– obtain a police check (cost $48);

– attend the hearing which the Tribunal convenes to consider your application.

See Get Started for more information on how to apply.

Guardian

A Guardian is usually recommended where there is a specific need for a decision. Generally speaking, if a person has diminished decision-making capacity and there is a risk of neglect, abuse, exploitation, or instability in the person’s life and if they do not have immediate family to support them with decision-making or there is disagreement among the family, then a Guardian might need to be appointed.

A Guardian is only appointed if there is no less restrictive alternative. Most people with disabilities will not need a Guardian to obtain accommodation, get the health care and day services they may need, or engage in employment, provided there is a competent Person Responsible available.

Sometimes if there is ill health or other factors impacting a parent or carer’s ability to act as a Person Responsible, they may nominate another family member or trusted person. The Public Guardian might be appointed if there is a conflict between family members, or they want someone independent to make decisions so they can focus on just being a family.

The process of applying to be a Guardian is the same as for an Administrator. Applicants must undergo a national police record check. They must not have ever been bankrupt or committed a crime of dishonesty. The Tribunal must be satisfied they have the capacity to carry out the role of Guardian or Administrator according to the duties set out in the Private Guardian Handbook.

See Get Started for more information on how to apply.

Capacity and Supported Decision Making

The Guardianship and Administrator application forms ask the applicant questions about the capacity of the person with disability. The Health Care Professional Report asks for details about which areas of decision-making the person might have impaired capacity in because of their disability. Further questions about the person’s decision-making capacity may be asked at the Tribunal hearing.  TASCAT uses this information to assess the capacity of a person with disability over 18 years of age to make important decisions for themselves.

It is important that a person with disability is consulted and involved in making decisions about their lives as far as is possible given their capacity to understand and express their wishes. As a signatory to the United Nations Conventions on the Rights of People with Disability, Australia as a nation agrees to the rights of people with disabilities to make their own decisions. The NDIS ACT lists as a guiding principle the right for people with disability to make decisions and have choice and control.

Assessing capacity is more complex than just ascertaining whether a person has understood what has been said or written. The Tasmanian Department of Health and Human Services has a handy capacity toolkit which lists six principles to be applied when assessing a person’s capacity:

1. Always presume a person has capacity;
2. Capacity is decision specific (a person may be able to make some but not all decisions, or may be able to make some decisions now and others in the future);
3. Don’t assume a person lacks capacity based on their appearance;
4. Assess the person’s decision-making ability, not the decision they make (for example, if they make a decision you may not agree with);
5. Respect a person’s privacy;
6. Substitute decision-making is the last resort.

See Get Started for a link to the Capacity Toolkit.

Guardians and Administrators are responsible for consulting with the person with disability, advocating for them, acting in their best interests, protecting them from neglect, abuse or exploitation, and assisting them to build the skills to make reasonable judgments for themselves, where possible given their individual circumstances.