Guardianship and administration in Tasmania 

This article states the law of Tasmania. The Guardianship and Administration Act 1995 (Tas) was substantially recast by amendments in 2023, and both its terminology and its principles now sit closer to the Victorian model than to the older protective statutes¹. The prior question is whether the person has impaired decision-making ability for the particular personal matters in issue, because that is the Act's threshold term and it is not interchangeable with capacity language used elsewhere.

The principles

Section 8(1) binds any person performing a function under the Act to seven principles.

The first sets the tone: "a person's decision-making ability is to be respected and promoted". Promotion is an active obligation, not merely non-interference.

The second requires that a person who needs support in decision-making be given access to the support necessary to enable them, as far as practicable, to make and participate in decisions affecting them, to express their will and preferences, and to develop their decision-making ability. That third limb — development — appears in Victoria's Act as well and marks both as building capability rather than only substituting for its absence.

The third principle governs how the person's own position enters: "the views, wishes and preferences of a person with impaired decision-making ability in respect of decisions are to be respected and used to inform those decisions". Views inform; they do not, on this wording, direct in the way Victoria's s 8(1)(b) requires. That is a real, if fine, distinction between two otherwise similar schemes.

The remaining principles require recognition of the role of close family members, carers and other significant persons; recognition of the importance of preserving the person's cultural and linguistic environment; promotion of the person's personal and social well-being; and adoption of the means least restrictive of the person's freedom of decision and action.

Section 8(2) adds further requirements where the function is performed in relation to a child, including that the best interests of the child be served as far as practicable.

The elements of a guardianship order

Section 20(1) permits the Tribunal, after a hearing, to appoint a guardian in respect of one or more personal matters where three things are established.

First, an application for a guardianship or administration order has been made in respect of the person. Second, the Tribunal is satisfied that the person has impaired decision-making ability in respect of decisions relating to those personal matters and is in need of a guardian. Third, the Tribunal is satisfied that the order will promote the person's personal and social well-being.

The third element is doing independent work and is easily skipped. Establishing impaired decision-making ability and need is not sufficient; the order itself must be shown to promote well-being. An order that would satisfy the first two but achieve nothing for the person does not meet s 20(1)(c).

Note also that the threshold is expressed by reference to the particular personal matters for which the order is sought, so the enquiry is matter-specific in the way Victoria's is.

What "in need of a guardian" requires

Section 20(2) directs the Tribunal, in determining need, to consider specified matters. The first is the wishes and preferences of the person, as far as they can be ascertained. The second is whether the person's needs could be met by other means less restrictive of their freedom of decision and action.

Placing the person's wishes first among the matters relevant to need, rather than only among the principles, means an applicant cannot establish need without engaging with what the person actually wants. And the less-restrictive question is built into the need enquiry itself rather than standing outside it as a separate constraint — a different structure from Western Australia, where s 4(4) operates as an independent bar on making any order.

Six jurisdictions compared

With Tasmania added, the guardianship standards divide as follows:

• Autonomy-led: Victoria (will and preferences direct), Queensland (structured four-step approach), Tasmania (views, wishes and preferences inform), South Australia (hypothetical wishes paramount).
• Protective: New South Wales (welfare and interests paramount), Western Australia (best interests the primary concern).

Even within the autonomy-led group the verbs differ — direct in Victoria, inform in Tasmania — and that difference is precisely the kind a student must quote rather than paraphrase.

Applying this in a problem question

1. Use the Act's own term: impaired decision-making ability, assessed for the particular personal matters in issue.
2. Work all three elements of s 20(1) separately, and do not treat s 20(1)(c) as a formality.
3. Under s 20(2), address the person's wishes and preferences as part of establishing need, not only as a principle.
4. Consider less restrictive means within the need enquiry, as s 20(2)(b) requires.
5. When applying s 8(1)(c), say that views inform the decision; do not overstate it as directing the decision.
6. Where support could enable the person to decide, apply s 8(1)(b) before concluding that substitution is required.

Self-check

• Have I used impaired decision-making ability rather than imported capacity language?
• Have I established that the order will promote personal and social well-being?
• Have I addressed the person's wishes within the need enquiry?
• Have I kept "inform" distinct from "direct"?