Guardianship decision-making standards compared 

Every Australian jurisdiction has a guardianship statute, every one of them states principles that govern the decision, and no two of them state the same principle. This article compares the eight, because the single most common error in this subject is answering a problem from one jurisdiction with the standard of another.

The comparison is not academic. On the same facts — an older person refusing help that their family thinks they need — a New South Wales decision-maker and a Northern Territory decision-maker operating under an advance personal plan are directed to different answers by their statutes.

The four families

The eight standards fall into four groups.

Welfare and interests. New South Wales. Section 4 of the Guardianship Act 1987 (NSW) makes the person's welfare and interests paramount.¹ This is the oldest formulation in the group and the most protective: what the person wants is relevant, but it is not the governing consideration.

Best interests, structured. The Northern Territory. Section 4 of the Guardianship of Adults Act 2016 (NT) applies a best interests standard, but determined through a structured process rather than left at large, and s 4(5)(a) requires an existing advance personal plan or enduring power of attorney to be taken into account.⁸ Section 4 also excludes health care decisions from the guardianship principles altogether.

Will and preferences. Victoria and Tasmania. Section 9 of the Guardianship and Administration Act 2019 (Vic) directs decisions by the person's will and preferences.² Section 8(1) of the Guardianship and Administration Act 1995 (Tas) requires a person's decision-making ability to be respected and promoted and their views, wishes and preferences to inform decisions.⁶ These are the post-CRPD formulations.

Wishes, qualified by a further step. The Australian Capital Territory. Section 4(2) to (4) of the Guardianship and Management of Property Act 1991 (ACT) requires the decision-maker to support participation, to give effect to the person's wishes unless doing so would significantly adversely affect their interests, and then — this is the distinctive part — to give effect to those wishes as far as possible short of that effect.⁷ It is neither a wishes standard nor an interests standard but a sequence.

South Australia, Queensland and Western Australia each state principles in their own way. Section 5 of the Guardianship and Administration Act 1993 (SA) requires the course adopted to be the least restrictive of the person's rights and personal autonomy consistent with their proper care and protection.⁴ Section 11B of the Guardianship and Administration Act 2000 (Qld) states numbered general principles, with health care principles in s 11C.³ Section 4(2) to (7) of the Guardianship and Administration Act 1990 (WA) states principles governing the exercise of every function under that Act.⁵

The threshold for an order

The principles govern how a decision is made. A separate question is when an order may be made at all, and the statutes differ there too.

Victoria sets the most explicit test. Section 30(2) permits VCAT to make a guardianship or administration order only where, because of disability, the person does not have capacity for the particular matter — capacity is assessed matter by matter — and is in need of a guardian or administrator (the s 31 factors include the person's will and preferences and whether decisions may more suitably be made by informal means), and the order will promote the person's personal and social wellbeing. All are required. A supportive order is governed separately by s 87, which asks instead for the person's consent and for capacity once practicable and appropriate support is given.

Tasmania sets three. Section 20 requires impaired decision-making ability, need, and that the order will promote the person's personal and social well-being. The third limb is the one most often skipped in an answer.

New South Wales does state a threshold: under s 14(1) the Tribunal may make an order only if satisfied that the person is a person in need of a guardian. It then works from the other end, by restricting the more intrusive outcomes: s 15(4) bars a plenary order where a limited one would suffice, and s 15(3) bars a continuing order appointing the Public Guardian where some other person could be appointed.

South Australia does the same work through its principles: s 5(d)'s least-restrictive requirement is what a submission for a full rather than limited order under ss 29 or 35 must overcome.

What "capacity" means

The definitions are not interchangeable either.

South Australia defines mental incapacity in s 3 as the inability of a person to look after their own health, safety or welfare, or to manage their own affairs. New South Wales speaks of a person in need of a guardian (s 3). Tasmania speaks of impaired decision-making ability. Victoria assesses capacity for the particular matter.

The difference between a global status and a matter-specific assessment is the one that changes outcomes. A person may lack capacity to manage a property portfolio and retain capacity to decide where they live. In Victoria that distinction is built into s 30; elsewhere it has to be argued.

Where health care sits

Three jurisdictions deliberately separate health care decision-making from guardianship.

The Northern Territory does it in the guardianship Act itself: s 4 excludes health care decisions from the guardianship principles, and the Health Care Decision Making Act 2023 (NT) governs instead.⁹ Victoria does it by statute: the Medical Treatment Planning and Decisions Act 2016 (Vic) carries the treatment regime.¹⁰ Queensland keeps health care principles in the guardianship Act but states them separately in s 11C.

Do not apply a guardianship principle to a treatment question without first checking whether the jurisdiction has separated them.

A comparison table

| Jurisdiction | Governing standard | Provision | |---|---|---| | NSW | Welfare and interests paramount | s 4, Guardianship Act 1987 | | Vic | Will and preferences | s 9, Guardianship and Administration Act 2019 | | Qld | Numbered general principles | s 11B, Guardianship and Administration Act 2000 | | SA | Least restrictive of rights and autonomy | s 5(d), Guardianship and Administration Act 1993 | | WA | Statutory principles governing every function | s 4(2)–(7), Guardianship and Administration Act 1990 | | Tas | Decision-making ability respected; views, wishes and preferences | s 8(1), Guardianship and Administration Act 1995 | | ACT | Wishes, then wishes as far as possible short of significant adverse effect | s 4(2)–(4), Guardianship and Management of Property Act 1991 | | NT | Structured best interests; health care excluded | s 4, Guardianship of Adults Act 2016 |

Using this in a problem question

1. Name the jurisdiction before naming the standard. This is the whole point of the article.
2. Quote the statutory formulation, do not paraphrase it into a generic principle. "Best interests" is wrong in six of the eight jurisdictions.
3. Separate the two questions: what standard governs the decision, and what threshold must be met before an order is available.
4. Ask whether capacity is assessed globally or for the matter, and say which the statute requires.
5. Check whether health care has been carved out before applying a guardianship principle to a treatment decision.
6. Look for the least-restrictive alternative the jurisdiction provides — a limited order, a supportive order, a supportive attorney — before proposing full guardianship.

Self-check

• Have I stated the standard in the words of the jurisdiction's own statute?
• Have I avoided importing "best interests" or "will and preferences" into a jurisdiction that uses neither?
• Have I addressed every limb of the threshold test, including the wellbeing limb where there is one?
• Have I checked whether health care decisions are governed by a different Act?