Guardianship and Administration Act 1995

In this section – serious harm, to a person, means any harm that has a significant impact on the health, welfare, property or financial situation of the person, including as a consequence of abuse, exploitation, neglect or self-neglect; substitute decision-maker means a person with authority under this Act to make decisions for or on behalf of a person with impaired decision-making ability.

A substitute decision-maker is to have regard to the following in determining whether to make a decision for or on behalf of a person with impaired decision-making ability in respect of that decision:whether the person has made an advance care directive in respect of that decision; whether the person is likely to regain decision-making ability in respect of that decision and, if so, whether the decision can be postponed without the delay causing harm.

If a substitute decision-maker is satisfied that there is a need to make a decision for or on behalf of another person, the substitute decision-maker – is to give effect, as far as practicable, to the views, wishes and preferences of the person with impaired decision-making ability, if known (including those expressed in an advance care directive); and if the substitute decision-maker is not able to determine the views, wishes and preferences of the person with impaired decision-making ability, is to – give effect as far as practicable to what the substitute decision-maker reasonably believes those views, wishes and preferences are, based on all the information available; and act in a manner that promotes the personal and social well-being of the person with impaired decision-making ability and is the least restrictive of the person's human rights.

For the purposes of subsection (3)(b)(i), information available includes information obtained by consulting with close family members, carers and other significant people in the life of the person with impaired decision-making ability whom the substitute decision-maker reasonably believes the person with impaired decision-making ability would want to be consulted.

The views, wishes and preferences of the person with impaired decision-making ability should only be overridden by a substitute-decision maker for that person to the extent that – it is necessary to prevent serious harm, or the risk of serious harm, to the person or another person; or the implementation of the decision would be unlawful; or the implementation of the decision would be inconsistent with the terms of any determinations made by the Tribunal under this Act.

If a substitute decision-maker overrides the views, wishes and preferences of a person with impaired decision-making ability, the substitute decision-maker is to, as far as is reasonably practicable, provide the person with information as to why they have overridden the person’s views, wishes and preferences in a way that is appropriate to the person’s circumstances.