Guardianship and Administration Amendment Bill 2022 - Have your say

Update: After several weeks consultation and briefings on the Guardianship and Administration Amendment Bill 2022 (the draft Bill), the consultation is being extended for 3 weeks until 18 November 2022. The extension of consultation will allow the Department to consult further on issues raised. The extended consultation will also provide more opportunities for the Department to engage with people with lived experience, in addition to the consultation so far.

A simple overview of the Bill, and questions for people with experience of having a Guardian or Administrator, is attached. This is to help us understand the experience of people under Guardianship or Administration.

Please contact haveyoursay@justice.tas.gov.au if you have any issues with accessibility of the Bill pdf or would like to ask for an extension of time to have your say.

The Tasmanian Government is committed to providing opportunities for community involvement in the development of Government policy and we are seeking your input on the Guardianship and Administration Amendment Bill 2022 (the draft Bill).

The draft Bill amends the Guardianship and Administration Act 1995 and the Tasmanian Civil and Administrative Tribunal Act 2020 as part of a staged approach to updating and modernising Tasmania’s guardianship and administration system in response to a report of the Tasmania Law Reform Institute. The Bill also addresses legislative matters arising for the Independent Review of the Public Trustee.

The Bill has been drafted on the basis that the Guardianship and Administration Amendment (Advance Care Directives) Act 2021, including amendments made to that Act currently before Parliament as part of the Justice Miscellaneous (Advance Care Directives) Bill 2022, are scheduled to commence on 21 November 2022.

The Bill includes provisions which:

  • Establish rights-based principles as a framework for the way in which decisions under the Guardianship Act are to be made;
  • Provide a legislative basis for a shift away from a ‘best interests’ approach toward decision making to a ‘will and preference’ model, which requires decision makers to take account of the wishes and preferences of the represented person;
  • Enhance principles for the performance of functions under the Act, such as requiring the provision of supports as far as practicable in the circumstances to enable persons under guardianship or administration to make and participate in decisions affecting them and to promote their decision making ability;
  • Recognise the role of families, carers and other significant persons in the life of a person with impaired decision making ability;
  • Insert a decision making process which requires those making a decision for a person to consider whether the decision can be postponed in circumstances where a person is likely to regain decision making ability and, where this is not possible, to give effect to the views, wishes and preferences of the person (including those expressed in an advance care directive) based on all the information available to the decision maker;
  • Provides that the test of decision making incorporated into the Act in Stage 1 of reforms (Advanced Care Directives), will now apply to the whole of the Act.  This has the effect of recognising that all persons have decision making ability unless demonstrated otherwise and that the ‘reasonableness’ of the decision is irrelevant to the assessment of a person’s ability to make the decision;
  • Amends conflict of interest provisions that prevent a close relative of the proposed represented person being appointed as a guardian;
  • Removes disability as a standalone test of decision making ability;
  • Removes the ability of the Tribunal to make unconditional guardianship orders, and require the Tribunal to be satisfied of the need for a guardian in relation to each function conferred in the order;
  • Considers the views, wishes and preferences of the proposed represented person and the desirability of preserving existing relationships when determining  who to appoint as a guardian or administrator;
  • Requires the Tribunal to take into consideration the likelihood of improvements to the represented person’s decision making ability in determining the length of an order;
  • Removes the ability of the Tribunal to make emergency orders without a hearing and to more clearly define the circumstances in which an emergency order will be considered to require that the proposed represented person must be at immediate risk of harm;
  • Provides enhanced powers to the Public Guardian in relation to the resolution of disputes, including the option of using mediation to reach agreement between the parties;
  • Widens the basis on which appeal can be made to the Supreme Court; and
  • Inserts arrangements for the participation of people who lack decision making ability in medical research.

Download the draft Guardianship and Administration Amendment Bill 2022.

How to make a submission

We must receive all written submissions on the Guardianship and Administration Amendment Bill 2022 by 5:00pm on Friday 18 November 2022.

You can make your submission either online, by email or by post.

Submit online

All fields are required

your can upload only docx, doc or pdf and not larger than 10 MB

Important: By submitting your file, you agree to publish it on this website.

Email

Email your submission to haveyoursay@justice.tas.gov.au

Post

Mail your submission to

Department of Justice
Office of the Secretary
GPO Box 825
Hobart TAS 7001

Publishing submissions

Other than indicated below, submissions will be treated as public information and will be published on the Department of Justice website.

Submissions will be published after the introduction of the Bill.

No personal information other than an individual’s name or the organisation making a submission will be published.

For further information, please read the Tasmanian Government Public Submissions Policy (external link).

Important information to note

  1. Your name (or the name of the organisation) will be published unless you request otherwise.
  2. In the absence of a clear indication that a submission is intended to be treated as confidential (or parts of the submission), the Department will treat the submission as public.
  3. If you would like your submission treated as confidential, whether in whole or in part, please indicate this in writing at the time of making your submission clearly identifying the parts of your submission you want to remain confidential and the reasons why. In this case, your submission will not be published to the extent of that request.
  4. Copyright in submissions remains with the author(s), not with the Tasmanian Government.
  5. The Department will not publish, in whole or in part, submissions containing defamatory or offensive material. If your submission includes information that could enable the identification of other individuals then either all or parts of the submission will not be published.

Accessibility of submissions

The Government recognises that not all individuals or groups are equally placed to access and understand information. We are therefore committed to ensuring Government information is accessible and easily understood by people with diverse communication needs.

Where possible, please consider typing your submission in plain English and providing it in a format such as Microsoft Word or equivalent.

The Government cannot however take responsibility for the accessibility of documents provided by third parties.

Information provided to the Government may be provided to an applicant under the provisions of the Right to Information Act 2009 (RTI). If you have indicated that you wish all or part of your submission to be treated as confidential, your statement detailing the reasons may be taken into account in determining whether or not to release the information in the event of an RTI application for assessed disclosure. You may also be contacted to provide any further comment.