Guardianship and management of property in the ACT 

This article states the law of the Australian Capital Territory. The Guardianship and Management of Property Act 1991 (ACT) states seven decision-making principles in a single subsection, and they are not a list of equal considerations — they operate as a graduated sequence with a defined threshold for departing from the protected person's wishes¹. The prior question is whether giving effect to those wishes would significantly adversely affect the person's interests, because everything downstream turns on it.

Who the principles bind

Section 4(1) applies the section to the exercise by a person — the decision-maker — of a function under the Act in relation to a person with impaired decision-making ability, called the protected person.

Support comes first

Section 4(2)(a) requires the decision-maker to provide or facilitate, as far as practicable, the support necessary for the protected person to understand the decision to be made, participate in decision-making and communicate their wishes.

Support is therefore the first principle rather than a qualification on the others. A decision-maker who has not attempted to enable participation has not begun to apply the section.

Wishes must be given effect — with one threshold

Section 4(2)(b) is the core obligation: "the protected person's wishes, as far as they can be worked out, must be given effect to, unless making the decision in accordance with the wishes is likely to significantly adversely affect the protected person's interests".

Two things are worth marking. The verb is given effect to — stronger than Tasmania's inform, and comparable to Victoria's direct. And the exception is not a general best interests override: it requires a likelihood of significant adverse effect on interests. Ordinary disagreement, or a risk of some detriment, does not meet it.

Partial effect where the threshold is met

Section 4(2)(c) is the provision that distinguishes the ACT from every other jurisdiction examined. Where giving effect to the wishes is likely to significantly adversely affect the person's interests, the decision-maker "must give effect to the protected person's wishes as far as possible without significantly adversely affecting the protected person's interests".

So meeting the threshold does not discharge the obligation; it reduces it. The decision-maker must still implement as much of the person's wishes as can be implemented short of the significant adverse effect. Elsewhere an override tends to be binary — once the threshold is crossed, the substitute standard takes over. The ACT requires the decision-maker to keep going and find the largest part of the person's wishes that can survive.

Only where the wishes cannot be worked out or given effect to at all does s 4(2)(d) direct that the interests of the protected person be promoted. Interests are the last resort, not the governing standard.

The remaining principles

Section 4(2)(e) requires that the protected person's life, including their lifestyle, be interfered with to the smallest extent necessary. Section 4(2)(f) requires that the person be encouraged to look after themselves as far as possible, and s 4(2)(g) that they be encouraged to live in the general community and take part in community activities as far as possible.

The express reference to lifestyle in paragraph (e) is worth noting: the restraint is not confined to formal decisions but reaches how the person lives.

Consulting carers

Section 4(3) imposes a duty: before making a decision, the decision-maker must consult with each carer of the protected person.

Section 4(4) then supplies the only exception, and it is protective rather than administrative: the decision-maker must not consult a carer if the consultation would, in the decision-maker's opinion, adversely affect the protected person's interests. Note the different threshold — plain adverse effect here, not the significant adverse effect required to depart from wishes.

Section 4(5) confirms that the duty does not limit other consultation the decision-maker may carry out.

Eight jurisdictions on one question

With the ACT added, the question "when may a substitute decision-maker depart from what the person wants?" has eight answers:

• ACT — only where giving effect is likely to significantly adversely affect interests, and even then only partially.
• Victoria — only where necessary to prevent serious harm.
• Queensland — after working four structured steps ending in imputed views.
• Tasmania — views inform rather than direct the decision.
• South Australia — the paramount consideration is the wishes the person would have had if not incapacitated.
• Northern Territory — best interests, but after an active search for current and previously stated views.
• Western Australia — best interests as the primary concern, with a duty to seek views.
• New South Wales — welfare and interests paramount, views taken into consideration.

The ACT and Victoria set the highest bars to overriding a person's wishes, by different words. Neither can be paraphrased into the other.

Applying this in a problem question

1. Begin with s 4(2)(a): was support provided to enable understanding, participation and communication?
2. Work out the person's wishes as far as they can be worked out, and start from the obligation to give effect to them.
3. Apply the threshold precisely — likelihood of significant adverse effect on interests, not mere detriment or disagreement.
4. If the threshold is met, apply s 4(2)(c) and identify how much of the wishes can still be given effect.
5. Reach s 4(2)(d) and the promotion of interests only where wishes cannot be worked out or given effect at all.
6. Address the s 4(3) duty to consult each carer, and the narrower s 4(4) exception.

Self-check

• Have I started from support rather than from substitution?
• Have I applied the significant adverse effect threshold rather than a general best interests test?
• Have I given partial effect under s 4(2)(c) instead of treating the override as binary?
• Have I consulted each carer, or identified why s 4(4) applied?