Aged and disability care law in the Australian Capital Territory 

This article is a wayfinding guide. It states the law of the Australian Capital Territory, and identifies where Commonwealth law governs instead. It adds no authority of its own: every proposition here is drawn from the linked articles on each Territory statute, and the pinpoints in this article's citations are the ones verified there.

The ACT is the smallest jurisdiction in this series and the one that most often surprises. Its guardianship statute contains the most explicit statutory statement of supported decision-making in the country, its health directions statute permits a direction to be made orally, and its Senior Practitioner regulates restrictive practices across three service sectors, not only disability.

Commonwealth or Territory?

The Commonwealth funds and regulates the service under the Aged Care Act 2024 (Cth) and the National Disability Insurance Scheme Act 2013 (Cth): registration, standards, reportable incidents and income support.⁸⁷

The Territory governs capacity, advance health directions, enduring instruments, restrictive practices and disability service standards.

The six statutes, and what each answers

| The question | The Act | The decision-maker | |---|---|---| | Can this adult decide, and who decides if not? | Guardianship and Management of Property Act 1991 (ACT) | ACAT | | What did this person direct about medical treatment?³ | Medical Treatment (Health Directions) Act 2006 (ACT) | The health practitioner | | Who holds the power over property or personal matters?⁴ | Powers of Attorney Act 2006 (ACT) | The attorney; ACAT | | May this restrictive practice be used?⁵ | Senior Practitioner Act 2018 (ACT) | The Senior Practitioner | | What is a specialist disability service, and to what standards?⁶ | Disability Services Act 1991 (ACT) | The Minister, by declaration and approved standards | | Does this unpaid carer have recognised standing?² | Carers Recognition Act 2021 (ACT) | Public sector entities |

Wishes first

The Guardianship and Management of Property Act 1991 (ACT) states the decision-making principles in s 4, and the structure of s 4(2) to (4) is the thing to learn.¹

A decision-maker must support the protected person's participation; must give effect to the person's wishes unless doing so would significantly adversely affect their interests; and, where that qualification is engaged, must then give effect to those wishes as far as possible short of that effect.

That third step is what makes the ACT provision distinctive. It is not a choice between the person's wishes and their interests. It is a requirement to go as far towards the wishes as the interests allow. An answer that treats the section as a simple override has missed the operative words.

Health directions, including oral ones

The Medical Treatment (Health Directions) Act 2006 (ACT) is narrower than the advance care directive statutes of South Australia and Victoria, and more permissive as to form.

Section 7 confines a health direction to refusing medical treatment, or requiring its withdrawal. It cannot be used to require that treatment be given. That is the scope limit, and it disposes of a class of problem questions immediately.

Section 8 then permits a direction to be made orally, or in any other way — not merely in writing. Sections 9, 12 and 13 impose different witnessing requirements according to the form the direction takes.

So in the ACT the question is never "was it in writing". It is: was it a refusal or withdrawal, in what form was it given, and were the witnessing requirements for that form met?

Powers of attorney, and what does not indicate incapacity

The Powers of Attorney Act 2006 (ACT) defines an enduring power in s 8 as one not revoked by the principal's impaired decision-making capacity, and states a two-limb capacity test in s 9. Sections 13 and 14 limit who may be appointed, differently for property matters and personal matters.

Section 91 is the provision to remember. It lists attributes that do not indicate impaired decision-making capacity — a statutory guard against inferring incapacity from age, appearance, disability or eccentricity. Where an instrument is challenged on capacity grounds, s 91 is the first answer, and it is a better answer than a general submission about the presumption of capacity.

Restrictive practices across three sectors

The Senior Practitioner Act 2018 (ACT) is unusual in its reach.

Section 7 defines a restrictive practice by primary purpose rather than by listing forms of practice. Section 8(1) binds providers of education, disability and child protection services — so the ACT scheme is not confined to disability services, and a school or a child protection provider is within it. Section 9(2) prohibits use except under a registered positive behaviour support plan or on the emergency route, and s 10 and s 10A require reporting within five days.

Compare Victoria, where the Disability Act 2006 requires an Authorised Program Officer's authorisation plus Senior Practitioner approval for specified practices, and South Australia, where Part 5A of the Disability Inclusion Act 2018 splits authorisation between two officers. The ACT instead centralises on registration of the plan with the Senior Practitioner.

Disability services, and carers

The Disability Services Act 1991 (ACT) defines a specialist disability service by reference to Ministerial declaration (ss 3 and 4) — so the coverage question is answered by looking for the declaration, not by construing a general description. Section 4(2) excludes a close relative providing services otherwise than as agent or employee of a provider. Section 5 empowers the Minister to approve standards.

The Carers Recognition Act 2021 (ACT) defines a care relationship in s 6 by reference to five grounds, including kinship and foster care, and excludes mere relationship or cohabitation, and paid, volunteer and training care. Section 6(5) preserves carer status despite government financial assistance — receiving a carer payment does not stop a person being a carer for the Act's purposes, which is a question clients ask and get wrong.

A working order for an ACT problem

1. Split the jurisdiction. Funding, registration and reportable incidents are Commonwealth.
2. Apply s 4(2) to (4) in sequence: support participation, give effect to wishes, and where interests intervene, go as far towards the wishes as possible.
3. For a health direction, ask three things: is it a refusal or withdrawal, what form did it take, and were the witnessing requirements for that form met?
4. Where capacity is challenged, go to s 91 of the Powers of Attorney Act 2006 before arguing from first principles.
5. For restrictive practices, check whether the provider is an education, disability or child protection provider, and whether there is a registered plan.
6. For disability services coverage, look for the Ministerial declaration.
7. For carers, remember s 6(5): a carer payment does not disqualify.

Self-check

• Have I applied the third step of s 4 — wishes as far as possible — rather than treating interests as an override?
• Have I checked that the health direction is a refusal or withdrawal, and not a request for treatment?
• Have I matched the witnessing requirement to the form of the direction?
• Have I cited s 91 rather than a general presumption?
• Have I checked whether the ACT restrictive practices scheme reaches this provider, given it covers three sectors?