The Tasmanian Civil and Administrative Tribunal - Guardianship Stream
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 Tribunal - Guardianship Stream 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
Membership of the Tribunal
The Tribunal is an independent statutory Board with the authority to appoint guardians or administrators to make important decisions affecting the lives and property of people with decision-making disabilities.
The Tribunal consists of the President, who is a legal practitioner, and a number of members from legal, medical, accounting and community backgrounds, who are rostered to sit when it conducts its hearings. Members of the Tribunal are appointed for their knowledge and experience in relevant areas of disability.
Each full Tribunal has a panel of three members. A member of the panel may sit alone as a Tribunal to hear certain types of matters.
Hearings take place in each region of the state when appropriate and at locations suitable for participants.
Why is the Tribunal necessary?
As children, our parents are our legal guardians and they have the power to make most decisions for us. As adults, we are legally entitled to make our own decisions. However, some adults are unable to make important decisions because of a disability.
The Tribunal appoints guardians and administrators to make these decisions if the need arises.
Most adults with disabilities do not need a guardian or a financial manager because their family, friends and service providers help them to make decisions and there is no need for a legal order.
Very few people require an order of the Tribunal. Generally an application is only required if there is a problem that cannot be solved without a legally appointed decision-maker. For example:
- complex financial transactions (eg sale of a house, restrictions on a bank account) are required on behalf of the person and the person has lost capacity to make those transactions
- a person with a disability is being neglected, exploited or abused
- disputes arise within a family (or between a family and service providers) about the kind of support a person with a disability needs and who should provide it
- a person with a disability objects to a plan for his or her care that is supported by family, friends and service providers
In these situations it is sometimes necessary for the Tribunal to appoint a guardian or an administrator to make the required decision.
The Tribunal may appoint a guardian for a person who is over the age of 18 years.
A guardian is a person who has been given the legal power to make important decisions on behalf of another adult - such as where that person should live, or what care and services the person should have.
The Tribunal most often appoints the Public Guardian. However, any person over the age of 18 may be appointed as another person's guardian. A family member or close friend who the Tribunal judges to be suitable and available would be preferred.
Part 5 of the Act enables a person to appoint another person or persons to make lifestyle decisions for him or her in the event that the person is no longer capable of making those decisions.
By appointing your own enduring guardian before losing mental capacity, you decide who will be your guardian and how you want decisions made for you.
Your appointed guardian must act in accordance with the general principles laid down in the Act and in a number of important respects is subject to direction by the Tribunal.
- Appointing an Enduring Guardian (PDF, 90.4 KB)
- Enduring Guardianship Infosheet (PDF, 128.9 KB)
- Enduring Guardianship Coversheet (PDF, 82.0 KB)
- Enduring Guardian's Handbook (PDF, 387.8 KB)
- Review of Enduring Guardian fact sheet (PDF, 80.5 KB)
The Tribunal may appoint an administrator - who acts like a financial manager - of a person's finances and property.
An administrator may either be a person or an organisation (eg The Public Trustee) who has been given the legal authority to manage some, or all of the financial and legal affairs of a person with a disability.
If the Tribunal appoints a private administrator, it must be satisfied that the person has the appropriate qualifications and/or experience to carry out the duties of an administrator.
The Tribunal has prepared a booklet called Information for Private Administrators (PDF, 496.5 KB). The booklet provides details of the administrator's role, duties and responsibilities, and contains forms and examples of statements of account. This booklet is issued to all private administrators after appointment.
Enduring powers of attorney (EPA)
A power of attorney is a legal document that allows you ('the donor') to choose another person ('the attorney') to make property and financial decisions for you and act on your behalf.
An enduring power of attorney authorises your attorney to make these decisions even if you are no longer able to make them for yourself. An attorney cannot make personal, medical or lifestyle decisions for you - for this purpose you can appoint an enduring guardian.
For further information on making an enduring power of attorney you should seek legal advice. EPAs must be registered with the Office of the Recorder of Titles
The Tribunal's powers under the Powers of Attorney Act 2000 in relation to enduring powers of attorney involve reviewing existing EPAs. These include the power to vary or revoke an EPA, to declare that an EPA was not validly executed, and/or to direct and advise attorneys about the power and its exercise.
You should contact the Tribunal's office if you believe that an EPA was not validly made or is not operating in the best interests of the Donor.
Sometimes the circumstances of a proposed represented person are such that there is an urgent need for an immediate order, usually to protect a person or their estate from harm.
An emergency guardianship order or administration order can be made without a formal hearing and over the telephone in exceptional circumstances.
Below is the electronic copy of the application form which should be used, it is PDF file and you will need Adobe Reader to open it. To complete the form you may print it out, or, alternatively you may complete it online.
If you are making an application during normal business hours you may either fax to (03) 6173 0211 or email to firstname.lastname@example.org.
If you are making an application outside of normal business hours please call the Public Guardian on (03) 6165 6767. Please note this service only applies to persons in Tasmania who are over 18 years of age.
The Order appoints the Public Guardian or the Public Trustee, as the case may be, and is effective for 28 days unless renewed for a similar period.
Medical and dental treatment
Part 6 of the Act provides for a comprehensive and flexible statutory scheme for the authorisation and approval of medical and dental treatment for persons with a disability who are incapable of giving or refusing consent to treatment.
The Tribunal has authority to consent to treatment but in most cases the consent of the Tribunal will not be required. This is because the Act gives the 'person responsible' who may be the person's spouse, carer or close friend, the authority to provide a substitute consent. The Tribunal, however, must consent to some types of very serious treatments eg sterilisations.
- Consent to Medical Treatment
(PDF, 98.5 KB)
- Consent to Medical Treatment by a Person Responsible
(PDF, 92.8 KB)
A statutory will is a will made by an order of the Tribunal for a person who is incapable of making a valid will for him or herself.
The Tribunal may order the execution of a statutory will for a person who lacks testamentary capacity and who has never made a valid will.
If a person has already made a valid will, they are not eligible for a statutory will.
The overriding duty of the Tribunal is to make a will as nearly as practicable to the will that the person would have made if he or she had capacity to make their own will. Therefore a great deal of evidence about the person's life and relationships needs to accompany an application.
Recognising the appointment of a Guardian or Administrator made outside Tasmania
The Tribunal can recognise and register appointments of guardians and/or administrators made under corresponding law by other courts and tribunals in other Australian states or territories.
Applications for recognising the appointment of a Guardian or Administrator made outside Tasmania can only be made by the person who was appointed as guardian and/or administrator. The form should be submitted along with a copy of the original instrument of his or her appointment, a certified copy of that instrument or other evidence satisfactory to the Tribunal of that appointment.
When the appointment is recognised, the Tribunal will send the order to the recognised guardian or administrator, the person under guardianship or administration, and to the court or tribunal that made the original order in the other state or territory. The order is the authority to act in Tasmania within the terms of the original order of the other state. This recognition only has effect for the period of time specified in the original order.