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Legislation

The Guardianship and Administration Act 1990, enables a substitute decision-maker to be appointed to make decisions in the best interests of an adult* with a decision-making disability.

*18 years of age or older.

Under the legislation, the State Administrative Tribunal can appoint two types of substitute decision-makers:

  1. a guardian who makes personal, lifestyle and treatment decisions for the represented person
  2. an administrator who makes financial and legal decisions for the represented person.

Applications to the Tribunal for the appointment of a guardian or administrator can be made by an individual or an organisation with an interest in, or concern for, the well-being of an adult with a decision-making disability.

Appointed guardians and administrators are most often family members or friends of the person with a decision-making disability. In cases where a suitable person cannot be found, the Public Advocate may be appointed as guardian and the Public Trustee as administrator.

Similarly, the legislation allows for individuals (who still have capacity) to complete two legal powers in order to nominate substitute decision-makers for themselves, who will make decisions on their behalf if they lose decision-making capacity:

  1. An Enduring Power of Guardianship, in which an adult can appoint a person or people of their choice to make personal, lifestyle and treatment decisions. This person is called an enduring guardian.
  2. An Enduring Power of Attorney, in which an adult can appoint one or two people of their choice to make financial and legal decisions. This person is called an attorney.

Principles of the legislation

The Guardianship and Administration Act 1990 specifies the principles used when determining if a person with a decision-making disability needs a substitute decision-maker to safeguard their best interests.

Best interests

The primary concern of the Act is to promote the best interests of the person with a decision-making disability.

Presumption of competence

Every person is presumed to be capable of managing their own affairs and making reasonable judgements about themselves, their safety and their finances unless proved to the contrary.

Least restrictive alternative

A guardian or administrator is appointed by the State Administrative Tribunal when a person’s needs can no longer be met in a less restrictive way.

Limited versus plenary

The authority of an appointed guardian or administrator will be determined by the State Administrative Tribunal which must consider whether a person needs a substitute decision-maker in all or just some areas of their life.

When the person is found to require decision making for just some areas of their life (for example they may be capable of deciding where they live but not about the treatment they need) the Tribunal will issue a “limited order”. A limited order will specifiy the areas in which the guardian or administrator may act.

When the person requires a substitute decision-maker for all areas of their life, the Tribunal will issue a plenary order.

Respect for the person's wishes 

The views and wishes of the person concerned, expressed in whatever manner - either at the time or gathered from the person's previous actions - shall, as far as possible, be taken into account.

Last Updated: 12-Feb-2010

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