Public trustees and public guardians in Tasmania

What are public trustees and public guardians?

Public trustees and public guardians are independent statutory authorities who provide services that help people – particularly vulnerable people – to manage their personal affairs. Every state and territory in Australia has a public guardian and a public trustee, although they may have different titles. They are appointed under state government legislation, and the offices they run are state government agencies.

• What is a public trustee? It’s an organisation that protects people’s financial interests by providing services like assisting them with making wills and powers of attorney. It can be appointed to look after financial and property decision-making for someone who has lost their capacity to make those decisions themselves.

• What is a public guardian? This term often refers to both the agency and the official, who oversees a team of people in the agency who act as guardians. If the official is appointed as guardian for someone who has lost capacity, their team members manage the person’s personal, lifestyle and/or health decisions. They may also be able to investigate allegations of abuse or neglect of older people who have lost decision-making capacity.

In Tasmania, the Public Trustee and the Office of the Public Guardian Tasmania are two separate organisations. In other states and territories, they may be combined into one office or have different names.

Different kinds of guardianship appointments

There are two types of guardianship appointments that can assist older people:

• One you make yourself. You can appoint your own choice of future decision-maker(s) under a formal document like an Enduring Power of Attorney, Enduring Guardian or Advanced Care Directive. This can only be done while you still have decision-making capacity.

• One made for you. If you lose capacity and have not formally appointed your own future decision-makers, someone can be appointed for you by an authorised and specialist organisation, such as an administrative tribunal.

This article talks about guardians who are appointed for you if you need one but haven’t appointed one yourself.

To find out more about appointing your own substitute decision-makers while you still have capacity, see our Powers of Attorney section.

What is a guardian?

A guardian is a substitute decision-maker: someone authorised to make decisions for another person who is unable to decide for themselves. Guardians are authorised by law to make some or all decisions on the person’s behalf, and they should always act in the person’s best interests.

Often, someone who knows the person well becomes their guardian – a family member, for example – but sometimes a public agency, like the Office of the Public Trustee Tasmania, is appointed.

More about guardians

• Guardianships can cover different types of decisions and have different names.

• In Tasmania a ‘guardian’ is a decision-maker appointed for health and lifestyle matters. A decision-maker appointed for financial decisions is called an ‘administrator’.

• The law in Tasmania allows for a ‘person responsible’ to consent to medical or dental treatment on your behalf if you are unable to consent for yourself. The first person responsible that a medical practitioner will ask is the person’s guardian. After the guardian, the next person is the spouse or partner, then an unpaid carer, then a close relative or friend. For more information, read this TASCAT fact sheet (PDF, 93 KB).

• In this article, ‘guardian’ is sometimes used to refer to any kind of appointed decision-maker.

• You can read more about guardianships in our Introduction to guardianships in Australia section.

How are guardians appointed?

If you start to have difficulty making decisions, there may be someone – like a close family member or friend – who can step in and help you manage things. When they make decisions for you without any kind of formal appointment, it’s called ‘informal decision-making’. As long as this arrangement is working well, there may be no need for a formal guardianship.

If there is no informal decision-maker, or the informal arrangement isn’t working well, someone involved in your life can ask to have a guardian formally appointed for you. They do this by applying to the state’s administrative tribunal.

Both formal and informal decision-makers should try to help you make any decisions that you can. This is called ‘supported decision-making’.

What does ‘supported decision-making’ mean?

Supported decision-making means your helper empowers you to make your own decisions whenever you can by providing you with whatever you need to do so. For example, your decision-making supporter could:

• explain information, so you are able to make the decision

• get you a translator, so you can understand information thoroughly

• go with you to the doctor to write down what they say, so you can remember it later and decide what to do.

You can find out more about this in our article, Supported decision-making

The role of the Tasmanian Civil and Administrative Tribunal (TASCAT)

An administrative tribunal is like a court that decides minor disputes and administrative matters. It operates under state legislation, and the decisions it makes are called ‘orders’. The Tasmanian Civil and Administrative Tribunal (sometimes called TASCAT) operates under the Tasmanian Civil and Administrative Tribunal Act 2020 (Tas) and other legislation. One of the administrative matters it can decide is guardianships.

The role of the Tasmanian Civil and Administrative Tribunal in guardianships is to consider applications to have a guardian appointed for you if you need one. Someone who is concerned about you can apply to the tribunal’s Protective Division, either to be formally appointed as your guardian themselves or to have someone else appointed. The application goes to the tribunal’s Guardianship Stream, which used to be called the Guardian and Administration Board. TASCAT does not charge fees for considering a guardianship application.

The tribunal will hold a hearing to determine whether there is a genuine need for a guardian to be appointed, consider who could be appointed, and decide how the guardianship would work best. They will keep your best interests in mind when deciding on the application.

Usually, they will first try to find an individual person who knows you well and would be an appropriate guardian, such as a family member, friend or carer. A trustee company may also be considered. This type of appointment is called a ‘private guardian’ (or, for financial decisions, a ‘private administrator’). A guardian must have legal capacity and be aged 18 or over to be appointed.

• The application forms for requesting a guardianship and/or administrator appointment are on the tribunal’s Application forms webpage.

• The person making the application will also need to submit a completed Health Care Professional Report as well as the application form.

• TASCAT recommends that the applicant phone and speak to a staff member before completing the application form. See the end of this article for contact information.

Sometimes, it’s not possible for TASCAT to appoint a private guardian or administrator. They may be unable to find an available, suitable and willing individual person, or there may be a dispute between your family, friends or carers over who your guardian should be.

In cases like these, the tribunal may appoint a public office such as the Office of the Public Guardian and the Public Trustee to be your ‘public guardian’ (for lifestyle and health decisions) and financial administrator (for decisions about your finances).

TASCAT can receive and consider requests for reviews of guardianship orders in Tasmania. They can provide some information to private guardians, including the Private Guardians’ Handbook (PDF, 410 KB).

The role of the Office of the Public Guardian Tasmania (OPG)

The Office of the Public Guardian Tasmania (sometimes called ‘the OPG’) helps vulnerable people with the management of their lifestyle and health affairs. In a guardianship matter, they may be appointed by TASCAT as your private guardian[LE1] .

The role of the OPG is to help ensure that any decisions made for you promote your independence, quality of life and existing relationships. They will try to keep your best interests in mind and consider your wishes and preferences, as far as they can determine what those are.

As far as possible, they will work with you in making your decisions. If it’s appropriate, they will also talk to your family, friends and carers to get their views on how your decisions should be made.

The Office of the Public Guardian also offers services to support private guardians in their role. Read more on their Information for guardians webpage.

The Public Guardian doesn’t hear applications for reviews of guardianship orders – those are handled by the Tasmanian Civil and Administrative Tribunal.

The role of the Public Trustee

The Public Trustee helps Tasmanian people with the management of their financial affairs. They can be appointed by TASCAT as your administrator, and fees may apply for their service. See their Financial administration fees and charges leaflet (PDF, 137 KB) and Out of pocket expenses leaflet (PDF, 121 KB) for more information.

The role of the Public Trustee is to help ensure that any decisions made for you promote your best interests and protect your financial wellbeing. They will try to respect your wishes and preferences, as far as they can determine what those are.

As far as possible, they will work with you in making your decisions. If it’s appropriate, they will also talk to your family, friends and carers to get their views on how your decisions should be made. You can read more about the process in the Financial administration booklet available on their website (PDF, 2.7 MB).

The Public Trustee doesn’t hear applications for reviews of administration orders. Those are handled by the Tasmanian Civil and Administrative Tribunal.

What matters can a guardian decide?

Tasmania guardianships are covered by the Guardian and Administration Act 1995 (Tas), which sets out the matters that guardians may manage for you.

In Tasmanian guardianships, financial affairs are considered separately from personal, lifestyle and medical decisions. An administrator will look after your financial decisions, and a guardian will look after the others. (It’s possible that the same person or people may be appointed for both roles.)

If the Public Trustee or Public Guardian is appointed to help you, they will need to get some information about you and what’s happening in your life, what decisions need to be made, and what your options are. They will talk to you and to your family and carers to gather the information and find out what everyone thinks would be best for you. The information will be kept private.

If you (or someone else) are unhappy with a decision the Public Trustee or Public Guardian makes about your affairs, you can make a formal complaint. Details of how to do this are available on the Public Guardian’s Investigations webpage and the Public Trustee’s Feedback and complaints webpage.

Financial decisions

Examples of financial decisions the Public Trustee, as your administrator, can make include:

• paying your bills

• managing your debts

• helping with your tax and investments

• arranging maintenance and repairs to your property

• paying your mortgage, if you have one.

For details of how the Public Trustee acts as your administrator and what they can do to help you, visit the Financial administration webpage.

Lifestyle decisions

Examples of lifestyle decisions the Office of the Public Guardian, as your guardian, can make include:

• where you live

• what support services you receive

• who you have contact with.

Health decisions

Examples of health decisions the Office of the Public Guardian, as your guardian, can make include:

• whether to consent to medical treatment, and which ones

• what dental treatment you receive

• when to advocate for your care, services and treatment.

What are a guardian’s responsibilities?

Tasmanian law requires your guardian to act in ways that are in your best interest and to consider and respect your wishes and preferences. The Public Trustee and Office of the Public Guardian Tasmania will both do everything possible to act according to this requirement. To be able to do this, they will need to gather information about you, your preferences and options, and the decisions that need to be made. The information they gather will be kept private.

The Public Trustee and Office of the Public Guardian will both keep records of the transactions and decisions they make for you. A private guardian should do the same.

Most importantly, guardians can only decide matters they are authorised to decide. Administrators can’t make decisions about your lifestyle or medical options, and guardians can’t make financial decisions. The Public Guardian can’t make financial decisions for you, and the Public Trustee can’t make health or lifestyle decisions for you.

Information for guardians

Guardians can find out more about their role and responsibilities on our Being a guardian webpage.

Ending or changing a guardianship appointment

A guardianship appointment made by the Tasmanian Civil and Administrative Tribunal usually lasts for up to 3 years. It is not automatically extended at the end of the term set.

People involved with you will need to apply for any extension or review of a guardianship order. This may happen if your circumstances change or if there is concern that your appointed guardian isn’t acting in your best interests. The tribunal will hold another hearing and can decide to extend or change the order.

Your guardian’s appointment ends naturally when you die.

More information

Tasmanian Civil and Administrative Tribunal

Resolves applications for guardianship and financial administration orders, reviews and extensions.
Tel: 1800 657 500 (8.45 am to 5 pm Monday to Friday, except public holidays)

Email: guardianship@tascat.tas.gov.au

Website: Click here

Office of the Public Guardian Tasmania

Provides information and advice about guardianships, Enduring Guardians, Advance Care Directives and options if guardianships aren’t working well.
Tel: 1800 955 772 (9 am to 5 pm Monday to Friday)
Email: public.guardian@publicguardian.tas.gov.au

Website: Click here

The Public Trustee

Provides financial management help for people all over Tasmania.
Tel: 1800 068 784 (9 am to 5 pm Monday to Friday, except public holidays)
Email: tpt@publictrustee.tas.gov.au

Website: Click here

Other useful resources

About us: the Tasmanian Civil and Administrative Tribunal – Guardianship Stream (webpage)

Find out more about TASCAT’s Guardianship Stream and the ways in which it can help people with impaired decision-making ability.

Guardianship (webpage)

This section of the OPG’s website offers links to information about applying for guardianship, being a guardian and emergency guardianship applications.

The Public Trustee’s guide to financial administration (video, 4 min 19 secs)

This video explains how financial administration by the Public Trustee works.

Disclaimer: The information provided on this website is not a substitute for individual legal advice.