Advance personal planning in the Northern Territory 

This article states the law of the Northern Territory. The Advance Personal Planning Act 2013 (NT) does in one instrument what most jurisdictions split across two or three, and it contains the strongest statutory statement of substituted judgment in Australian guardianship-adjacent legislation¹. The prior question is which of the plan's three components governs the matter in issue, because they operate differently.

One instrument, three functions

Section 8(1) allows an adult who has planning capacity to do one or more of three things by making an advance personal plan:

• make consent decisions about future health care action — advance consent decisions;
• set out the adult's views, wishes and beliefs as the basis on which the adult wants anyone to act when making decisions for them — advance care statements; and
• appoint one or more persons to make decisions if the adult has impaired decision-making capacity — decision makers.

Section 8(2) allows the second and third to extend to all or any aspect of the adult's care and welfare.

Elsewhere these are separate instruments: an advance care directive and an enduring guardian in South Australia, an instructional directive and a medical treatment decision maker in Victoria, an advance health directive and an enduring power of guardianship in Western Australia. The Northern Territory unifies them, so identifying which component is engaged is the first analytical step rather than identifying which document was made.

The decision-making cascade

Section 22 governs a decision maker's exercise of authority, and it runs in a strict order.

First, subject to s 23(2), the decision maker must give effect to any advance care statement made by the person (s 22(2)). Where the person recorded views, wishes and beliefs about the matter, those govern.

Second, if no advance care statement was made about the matter, the decision maker must exercise authority "in the way that the decision maker believes on reasonable grounds the person would do in the circumstances" (s 22(3)). That is substituted judgment, expressed as what the person would do rather than what they would want.

Section 22(4) directs how that belief is formed: the decision maker must take into account the person's current and previously stated decisions, views, wishes and objections about the matter, and the decision maker's personal knowledge of the person. The second is unusual — the Act treats the appointed person's own knowledge of the individual as a legitimate and mandatory input, which reflects that decision makers are typically chosen for exactly that knowledge.

Third, only if the decision maker is unable to form a belief on reasonable grounds about what the person would do does s 22(7) direct them to act in the way they believe on reasonable grounds is in the person's best interests, with s 22(8) requiring all relevant considerations to be taken into account.

Substituted judgment prevails over best interests

Section 22(5) is the provision that sets this Act apart. Where the decision maker has formed a belief on reasonable grounds about what the person would do, they "must exercise authority in that way, even if doing so may not be in the person's best interests".

No other Act examined in this series states the priority so directly. In Victoria the override is limited to preventing serious harm; in the ACT to a significant adverse effect on interests; in Western Australia and New South Wales best interests or welfare governs from the start. Here the legislature has said in terms that a decision maker must follow what the person would have done even where the decision maker thinks it a bad idea.

Section 22(6) supplies the single carve-out: s 22(5) does not require giving the person addictive substances, without therapeutic benefit, that the person would use if they had legal capacity. That the drafter needed an express exception shows how strong the general rule is.

Two standards in one Territory

The Northern Territory therefore applies different standards depending on how the decision maker came to hold authority.

Under this Act, a decision maker appointed by an advance personal plan applies advance care statements first, then substituted judgment, and only then best interests — with s 22(5) expressly subordinating best interests to substituted judgment.

Under the Guardianship of Adults Act 2016 (NT), a guardian appointed by the Tribunal must act in the way the decision maker reasonably believes is in the adult's best interests (s 4(2)), reached through a structured process.

An answer must therefore establish the source of the authority before stating the standard. The same Territory, the same adult and the same decision can attract different governing tests depending on whether the adult planned ahead. That is a strong practical argument for making a plan, and a trap for a student who assumes a jurisdiction has one standard.

Applying this in a problem question

1. Identify which component of the plan is engaged: an advance consent decision, an advance care statement, or an appointment of a decision maker.
2. Where an advance care statement covers the matter, apply s 22(2) and give effect to it, subject to s 23(2).
3. Where none covers the matter, apply s 22(3) and frame the question as what the person would do, not what would be good for them.
4. Under s 22(4), use previously stated views and the decision maker's personal knowledge, not only current expressions.
5. Apply s 22(5) expressly where the substituted judgment and the person's interests diverge, and check s 22(6).
6. Reach best interests under s 22(7) only where no reasonable belief can be formed — and confirm the authority arises under this Act rather than the guardianship Act.

Self-check

• Have I identified which of the three plan components governs?
• Have I applied the cascade in order rather than starting at best interests?
• Have I applied s 22(5) where substituted judgment and interests conflict?
• Have I checked whether the authority comes from a plan or from a guardianship order?