Enduring Guardianship vs Advance Care Directive in Tasmania

Two Different Tools for Personal Decisions

Tasmania's substitute decision-making system gives you two distinct instruments for managing personal and medical decisions during periods of incapacity — an Enduring Guardianship and an Advance Care Directive. They look similar on the surface (both deal with healthcare and personal care), but they work in fundamentally different ways, and understanding the distinction matters because one legally overrides the other when they conflict.

An Enduring Guardianship appoints a person. You're choosing someone you trust to make decisions on your behalf when you can't make them yourself — decisions about where you live, what medical treatment you receive, what services you access, and how your daily life is managed.

An Advance Care Directive records instructions. You're writing down specific preferences about medical treatment — particularly what treatments you want or don't want in specific clinical scenarios. No person is appointed; the directive speaks for itself.

How Each One Works

Enduring Guardianship

Under the Guardianship and Administration Act 1995, you (the appointor) nominate one or more people as your enduring guardians. They must sign an acceptance on the instrument acknowledging the role. The instrument must be signed before two independent adult witnesses and registered with TASCAT before it has legal effect.

The guardian's authority only activates during periods when you've lost decision-making capacity. On days when you're capable of making your own decisions, the guardian has no standing to override you. This is particularly relevant for fluctuating conditions — early-stage dementia, for example, where capacity comes and goes.

Since the September 2024 amendments, guardians must follow a "supported decision-making" framework. They're required to make every reasonable effort to involve you in decisions and respect your preferences, even when you lack full capacity. Section 27A also requires guardians to keep detailed records of all decisions made and the reasoning behind them.

The scope is broad: medical treatment, accommodation, lifestyle, services, and personal care. The guardian exercises judgment in real time, adapting to circumstances as they develop. If an unexpected medical issue arises that nobody anticipated, the guardian can make a decision on the spot.

Advance Care Directive

Also under the Guardianship and Administration Act 1995 (Part 5A, introduced by the 2021 amendment commencing 21 November 2022), a statutory Advance Care Directive lets you document binding instructions about specific medical treatments while you still have capacity.

Unlike the guardianship instrument, the ACD doesn't appoint anyone. It speaks directly to healthcare providers with legally binding force. If you've written that you refuse CPR in a terminal illness scenario, the treating team must respect that refusal — no guardian or family member can override it.

An ACD takes legal effect immediately upon execution and witnessing. Registration with TASCAT is recommended but not mandatory. Even without registration, the ACD is legally binding as long as it was properly executed. However, an unregistered ACD has an obvious discoverability problem — if hospital staff don't know it exists, they can't follow it. Uploading it to My Health Record and registering with TASCAT's portal both help ensure it's found when it matters.

The witnessing requirements for an ACD are stricter than for an Enduring Guardianship. Witnesses must not be paid or voluntary carers, relatives, appointed guardians, people who helped draft the document, or anyone with a known interest in the principal's estate.

When They Conflict: The ACD Wins

Here's the critical rule: if there's an inconsistency between a registered Advance Care Directive and the directions of an appointed Enduring Guardian, the ACD takes legal precedence.

A practical example: suppose your Advance Care Directive states that you refuse artificial ventilation in the context of a terminal diagnosis. Your enduring guardian, faced with a deteriorating situation and feeling desperate, instructs the hospital to ventilate you. The hospital must follow the ACD, not the guardian's instruction.

This hierarchy exists because the ACD represents your own voice — your direct instructions, documented while you had full capacity to express them. The guardian's role is to make decisions you didn't anticipate, not to override decisions you already made.

This also means that if you appoint an enduring guardian but don't make an ACD, the guardian has wider discretion. They can consent to or refuse treatments based on their judgment of what you'd want. An ACD narrows that discretion by locking in specific decisions in advance.

Do You Need Both?

In most cases, yes. They complement each other rather than overlap:

The ACD handles the known scenarios. If you have clear views about specific treatments — ventilation, tube feeding, dialysis, CPR, palliative sedation — writing them into an ACD ensures they're followed regardless of who is making decisions at the time.

The guardian handles everything else. Medical situations are unpredictable. An ACD can't cover every possible clinical scenario your treating team might face. The guardian fills the gap, making real-time decisions about treatments and circumstances you didn't specifically address in the directive.

Accommodation and lifestyle aren't covered by an ACD. Advance Care Directives deal exclusively with medical treatment decisions. Choosing an aged care facility, deciding whether you stay at home or move to supported accommodation, arranging community services — these are all guardian decisions, not ACD territory.

If you only have an ACD but no guardian, healthcare providers will follow your documented medical preferences but will need to identify a "Person Responsible" for any decisions not covered by the ACD. The statutory hierarchy (spouse or de facto partner, then primary unpaid carer, then close family member) determines who fills that role, but a Person Responsible has more limited authority than a formally appointed guardian and cannot refuse life-sustaining treatment.

If you only have a guardian but no ACD, the guardian makes all personal and medical decisions, constrained only by the September 2024 supported decision-making principles and any specific conditions you wrote into the guardianship instrument. This gives your guardian wide latitude but means your specific medical preferences aren't legally locked in.

Key Differences at a Glance

Setting Up Both Documents

The Tasmania Power of Attorney Kit covers the complete dual-track planning process — financial EPOA, Enduring Guardianship, and how each interacts with an Advance Care Directive. It includes the witness eligibility matrix for each document type (the ACD has stricter exclusions than the EG), step-by-step registration instructions for both the Land Titles Office and TASCAT, and guidance on writing ACD clauses that work alongside your guardian's authority rather than creating unintended conflicts.

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