Guardianship and Administration Amendment Bill 2023 a step closer

Important reforms to contemporise Tasmania’s guardianship laws are another step closer following the passing of the Guardianship and Administration Amendment Bill 2023 through the House of Assembly today.

Attorney-General and Minister for Justice, Elise Archer said the Bill progresses the second tranche of recommendations from the 2018 Tasmanian Law Reform Institute’s (TLRI) Review of the Guardianship and Administration Act 1995 Final Report as well as the legislative recommendations of the Independent Review of the Public Trustee conducted by Damian Bugg AM KC in 2021.

The amendments will bring our laws into line with guardianship and administration laws as recommended by the Australian Law Reform Commission and other bodies.

Importantly, this Bill will increase the confidence of those who are placed under guardianship or administration orders, as some of Tasmania’s most vulnerable people.

They can have confidence that their personal directions, values and preferences are respected at a time when they lack decision-making ability.

“The cornerstone of this Bill is the shift in the legal framework of guardianship and administration from a ‘best interests’ model to a ‘rights, will and preference’ model,” the Attorney-General said.

“Under this model, the will and preferences of the represented person will be at the absolute core of decision-making.

“Crucially, under the new approach, the Public Guardian and Public Trustee will only be appointed as a last resort.”

Key changes in the Bill include:

  • establishing rights-based principles as a framework for the way decisions under the Guardianship and Administration Act 1995 are to be made;
  • moving away from a ‘best interests’ approach towards a ‘will and preference’ approach, which requires substitute decision-makers to recognise the wishes of the person when making any decision;
  • inserting requirements to provide better access to the support necessary to enable people with impaired decision-making abilities to be able to participate in decisions and promote their own decision-making ability;
  • strengthening the criteria for circumstances in which an emergency order can be made;
  • providing new objects and principles, including applying the principles of the United Nations Convention on the Rights of People with Disabilities;
  • recognising the role of families, carers and other significant persons in the life of a person with impaired decision-making ability; and
  • establishing a decision-making process that 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.

The Attorney-General said she is strongly committed to preserving the rights and providing greater support for a person under guardianship or administration arrangements to decide for themselves, even if it is something that the guardian or administrator considers may involve risk or is a decision that they themselves would not make.

“Many important amendments have been made to this Bill to reflect the valuable and practical input by stakeholders and those with lived experience, and I thank them all for their engagement in this important and necessarily lengthy consultation process,” the Attorney-General said.

The Bill will now progress to the Legislative Council.

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