Guardianship of adults in the Northern Territory 

This article states the law of the Northern Territory. The Guardianship of Adults Act 2016 (NT) applies a best interests standard, but reaches it through a prescribed process rather than leaving it at large — and it expressly does not govern health care decisions¹. The prior question is therefore whether the decision in issue is a health care decision at all, because if it is, this Act's principles do not apply to it.

The health care carve-out

Section 4(1A) provides that the guardianship principles "do not apply in relation to health care or consent decisions about health care action".

That is an unusual and important boundary. In Western Australia, Queensland and Tasmania the guardianship statute carries the health decision-making rules within it. In the Northern Territory those rules sit in the Health Care Decision Making Act 2023 (NT), to which s 5B of this Act refers, and the guardianship principles are switched off for them.

A student answering an NT problem must classify the decision first. Applying s 4 to a treatment decision is an error the section itself forecloses.

Best interests, determined by a process

Section 4(2) requires a decision maker — a person or the Tribunal exercising authority under the Act — to exercise that authority "in the way that the decision maker reasonably believes is in the adult's best interests".

The standard is therefore best interests, as in Western Australia and, in different words, New South Wales. But s 4(3) then prescribes how it is determined, which the protective statutes in those States do not do to the same degree. In determining best interests the decision maker must:

• seek to obtain the adult's current views and wishes, as far as practicable;
• take into account all relevant considerations; and
• weigh up those considerations, giving each the weight the decision maker reasonably believes appropriate.

The first step is an active obligation, and it comes before the weighing rather than sitting among the things weighed.

Section 4(5) then makes the list of relevant considerations inclusive, beginning with the adult's current views and wishes and previously stated views and wishes, and extending to views and wishes stated by an interested person.

The structure is worth naming precisely: best interests is the standard, the adult's own views are a mandatory input obtained by an active search, and previously stated views count alongside current ones.

Least restriction and support

Section 4(4) governs what is appropriate in the circumstances. The decision maker must ensure authority is exercised in a way that is the least restrictive of the adult's freedom of decision and action as is practicable, and that provides the adult with as much support as is practicable to make the adult's own decisions.

The second limb is a supported decision-making obligation sitting inside a best interests statute — an intermediate position between the protective and autonomy-led models seen elsewhere.

The elements of a guardianship order

Section 11(1) permits the Tribunal to appoint a guardian if satisfied of three things: the adult has impaired decision-making capacity; the effect of that impairment is that, for some or all personal or financial matters, the adult is unable to exercise decision-making capacity; and the adult is in need of a guardian for some or all of those matters.

The second element is doing separate work from the first. Impairment alone is not enough; it must have the effect of inability for the relevant matters, and the matters are identified rather than assumed.

Section 11(2) then directs the Tribunal, in determining need, to take into account the nature and extent of the impairment — including whether it is continuous or episodic, and whether it is likely to be permanent or, if not, its likely duration. Episodic and temporary impairment are expressly contemplated, so an order is not the automatic answer to a fluctuating condition.

Existing instruments must be taken into account

Section 18 applies where the adult has an advance personal plan or is the donor of an enduring power of attorney. Section 18(2) requires the Tribunal to take that instrument into account in determining whether the adult is in need of a guardian and whether to make an order.

The sequence matters. An existing instrument is not merely something the order works around after the fact; it bears on whether an order should be made at all, because arrangements the adult made while capable may already meet the need.

Seven jurisdictions compared

• Best interests family: Northern Territory (structured determination, active search for views), Western Australia (primary concern), New South Wales (paramount, views taken into consideration).
• Autonomy-led family: Victoria (will and preferences direct), Queensland (four-step structured), Tasmania (views inform), South Australia (hypothetical wishes paramount).

The Northern Territory sits at the boundary: a best interests standard, but with a mandatory search for the adult's views and an express support obligation. Grouping it simply as "protective" would misdescribe s 4(3) and s 4(4).

Applying this in a problem question

1. Classify the decision. If it concerns health care, s 4(1A) excludes the guardianship principles and the Health Care Decision Making Act 2023 (NT) governs.
2. State the standard as best interests, then work the s 4(3) steps in order, beginning with the active search for current views and wishes.
3. Include previously stated views under s 4(5)(a), not only current ones.
4. Apply s 4(4) — least restrictive, and as much support as practicable for the adult's own decisions.
5. Under s 11(1), treat impairment and inability as separate elements and identify the matters affected.
6. Where an advance personal plan or enduring power of attorney exists, apply s 18 before concluding an order is needed.

Self-check

• Have I checked whether the decision is a health care decision excluded by s 4(1A)?
• Have I treated the search for current views as a step rather than a consideration?
• Have I kept impairment and inability distinct under s 11(1)?
• Have I applied s 18 where an existing instrument covers the need?