When does a guardian need to be appointed?

A guardian is only ever appointed as a last resort by tribunals or boards because it is considered the most restrictive of a person’s human rights.

Note: Guardianship is considered the most restrictive of a person’s human rights, so is usually a last resort in decision making.

The tribunal or board will always look to see if there is an option to support rather than substitute a person’s human rights. If a guardian is required, the tribunal or board will seek to confine the areas in which decision making can be substituted (for example only to health or accommodation decisions), and for how long the appointment is valid (ie it may not be ‘enduring’ or lifelong). Any application to appoint a formal decision maker must show that there are no other (less restrictive) alternatives.

Situations in which a guardian may need to be appointed for a person who lacks capacity to make decisions about health care, interventions or testing include when:

  • there is no appropriate person responsible, medical treatment decision maker or statutory health attorney to make healthcare decisions (see Substitute decision making for people with developmental disability)
  • the healthcare provider doubts the authenticity of a person claiming to be the person responsible, medical treatment decision maker or statutory health attorney
  • the decisions of the person responsible, medical treatment decision maker or statutory health attorney do not seem to be in the best interests of the adult they are assisting
  • the proposed treatment is disputed (eg between patient and doctor, between relatives, between healthcare professionals)
  • the proposed treatment or procedure is ethically contentious (eg prescribing contraception).

If the case involves suspected neglect or abuse, see What to do if you suspect a person with developmental disability is being abused.

All states and territories provide for a guardian to be appointed by the relevant administrative tribunal (or in Tasmania the Guardianship and Administration Board). The appointment can authorise the guardian to make some or all decisions about the person’s health care and/or decisions in other domains of a person’s life (eg where the person lives, and with whom).