Guardianship and Decision-Making in Australia: A Family Starter Guide

Understanding Decision-Making Arrangements

When a family member loses the capacity to make decisions for themselves, whether through dementia, acquired brain injury, intellectual disability, or another condition, families often feel uncertain about what to do and who has the legal authority to help.

Australia has several overlapping arrangements for substitute and supported decision-making. Understanding the differences between them, and which applies in a given situation, is important because the wrong arrangement can either leave a person without adequate support or strip them of autonomy they still possess.

This guide introduces the main arrangements, explains who can apply for what, and covers what each means practically for families and care professionals.

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The Guiding Principle: Least Restrictive Means

All Australian guardianship and decision-making frameworks are built around the principle that formal legal arrangements should be the least restrictive option consistent with the person’s needs. This means:

• Where a person can make their own decisions with support, that is the preferred approach
• Where a legal arrangement is needed, the scope should be limited to the decisions the person genuinely cannot make independently
• Guardianship and formal substitute decision-making are a last resort, not a default

This principle reflects Australia’s commitment to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which promotes the right of people with disability to legal capacity and self-determination.

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Supported Decision-Making: Before Formal Arrangements

Supported decision-making is not a legal arrangement. It is an approach to practice. Under this model, a person with reduced capacity is supported to make their own decisions by one or more trusted people who:

• Help them understand the information relevant to a decision
• Support them to communicate their views and preferences
• Assist with the practical steps involved in acting on a decision
• Do not substitute their own judgment for the person’s

Supported decision-making is the preferred approach in both the NDIS and aged care contexts, and tribunals will often look for evidence that supported decision-making has been tried before appointing a formal guardian.

For families, this might look like a regular family meeting where a person with early dementia is walked through decisions about their care plan, given time to ask questions, and actively involved in the outcome even when they need significant help to understand the options.

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Enduring Power of Attorney

What it is

An enduring power of attorney (EPOA) is a legal document that a person with capacity creates to appoint someone they trust to make decisions on their behalf if they later lose capacity.

The critical requirement is that the person creating the EPOA must have capacity at the time they sign it. An EPOA cannot be created after capacity is lost. This is why planning ahead is strongly recommended.

What an attorney can decide

EPOAs in Australia come in two main types:

Enduring power of attorney for financial matters covers decisions about property, finances, bank accounts, investments, and business affairs.

Enduring power of attorney for personal/health matters (sometimes called enduring guardianship) covers decisions about where the person lives, health care treatment, and the services they access.

Some jurisdictions use a single document for both; others require separate instruments. The specific rules vary by state and territory.

Choosing an attorney

An attorney should be someone the person genuinely trusts, who understands the responsibilities involved, and who can act without conflicts of interest. A spouse, adult child, or close friend can all be appointed. You can appoint multiple attorneys for different domains or require attorneys to act jointly.

Registration

Some states require EPOAs to be registered; others do not. Check the requirements in your state or territory. Unregistered EPOAs may not be accepted by banks, health services, or government agencies in some jurisdictions.

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Guardianship Arrangements

Guardianship is a formal legal appointment made by a state or territory civil and administrative tribunal when a person lacks capacity and either has not made an EPOA, or the existing arrangements are inadequate or have broken down.

Who can apply

In most states and territories, the following people can apply for a guardianship order:

• Family members (spouse, adult children, siblings, parents)
• Close friends or carers
• Government agencies (in some circumstances)
• Aged care providers or health services (in some circumstances, typically where they believe no one else is taking appropriate responsibility)

The tribunal process

The process typically involves:

1. Lodging an application with the relevant tribunal
2. The tribunal notifying the person who is the subject of the application
3. An independent assessment of the person’s capacity
4. A hearing where all parties can present their views
5. A decision about whether guardianship is necessary and who should be appointed

Tribunals must hear from the person subject to the application, not just their family. The person’s own wishes and preferences, even where their capacity is limited, are a significant factor in the decision.

What guardians can decide

Guardians can make decisions about personal matters: where the person lives, what medical treatment they receive, what services they access, and who they have contact with.

Guardians cannot make financial decisions unless they are also appointed as attorney for financial matters. The financial and personal domains are legally separate in Australia.

Guardianship orders should be as limited as possible. A guardian may be appointed only for specific decisions, only for a limited time, or only in specified circumstances.

Private vs. Public Guardian

Private guardians are family members, friends, or other trusted people appointed by the tribunal.

Public Guardians are government officials appointed where no suitable private guardian is available or where private arrangements are not in the person’s best interests. Each state and territory has a Public Guardian office.

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State and Territory Tribunal Contacts

Guardianship is governed at the state and territory level. Each jurisdiction has its own tribunal:

State/Territory	Tribunal
New South Wales	NSW Civil and Administrative Tribunal (NCAT)
Victoria	Victorian Civil and Administrative Tribunal (VCAT)
Queensland	Queensland Civil and Administrative Tribunal (QCAT)
South Australia	South Australian Civil and Administrative Tribunal (SACAT)
Western Australia	State Administrative Tribunal (SAT)
Tasmania	Guardianship and Administration Board of Tasmania
Australian Capital Territory	ACT Civil and Administrative Tribunal (ACAT)
Northern Territory	Northern Territory Civil and Administrative Tribunal (NTCAT)

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Guardianship vs. Administration

In some states, the arrangements for personal decisions and financial decisions are handled by separate appointments: a guardian for personal matters and an administrator for financial matters. In others, a single appointment can cover both.

If you are applying to a tribunal for a guardianship order, confirm whether you also need to apply for an administration order if the person’s finances also need to be managed.

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Guardianship and Aged Care

In aged care contexts, guardianship questions most commonly arise when:

• A person with dementia needs to move from home to residential care and is not able to consent to the move
• Treatment decisions need to be made and the person cannot consent
• An aged care provider believes a person is not receiving appropriate decision-making support from family

For aged care transitions, a health care directive or advance care planning document can provide important guidance even where it is not legally binding. Guardianship may not be necessary if the person has left clear documented wishes about their care preferences.

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Guardianship and the NDIS

NDIS participants with a guardian retain their rights as participants. A guardian may be involved in planning meetings and may have authority over service provider choices, but the NDIA expects decisions made by guardians to reflect the participant’s own wishes and goals.

Support coordinators working with participants who have a guardian should communicate regularly with the guardian and ensure they have access to the information they need to make informed decisions. They should also support the participant to express their own views regardless of the guardianship arrangement.

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Frequently Asked Questions

What is the difference between guardianship and enduring power of attorney?

An enduring power of attorney (EPOA) is a legal document that a person creates themselves while they have capacity, appointing someone they trust to make decisions on their behalf if they lose capacity in the future. Guardianship is a formal appointment made by a tribunal when a person lacks capacity and has not previously made an EPOA, or where an existing arrangement has broken down. An EPOA is generally preferable because it reflects the person’s own choice.

Who can apply for guardianship in Australia?

Applications for guardianship are made to the relevant state or territory civil and administrative tribunal. Applicants can include family members, close friends, government agencies (such as Public Advocates or Public Guardians), and in some cases health or aged care providers. The tribunal will consider who is best placed to act in the person’s interests and may appoint a private guardian, a public guardian, or in some cases multiple guardians with divided responsibilities.

What decisions can a guardian make?

Guardians can make decisions about personal matters including where the person lives, the health care they receive, the services they access, and who they have contact with. Guardians cannot make decisions about finances unless they are also appointed as an attorney under a financial power of attorney. The scope of guardianship is determined by the tribunal and should be the least restrictive arrangement possible given the person’s needs.

What is supported decision-making and how does it differ from guardianship?

Supported decision-making is an approach where a person with disability or cognitive impairment is supported to make their own decisions, with assistance from trusted people who help them understand information, communicate their views, and navigate complex situations. It is distinct from guardianship, where someone else makes decisions on the person’s behalf. Supported decision-making is the preferred approach under human rights frameworks and is increasingly promoted in both the NDIS and aged care systems as an alternative to formal guardianship.

Does guardianship affect an NDIS participant’s rights?

Guardianship does not remove an NDIS participant’s rights under the NDIS Act. Participants retain the right to have their views considered in planning decisions, to have an advocate present, and to appeal NDIS decisions. However, where a guardian is appointed, the guardian may have formal authority to make decisions about which providers are engaged and what supports are included in the plan. The NDIA expects guardians to make decisions that reflect the participant’s wishes and best interests.

What is the role of a Public Guardian and when are they appointed?

The Public Guardian is a government official appointed by the state or territory tribunal to act as guardian when there is no suitable private guardian available, or where family or private arrangements are not in the person’s best interests. Each state and territory has its own Public Guardian office. Public Guardians manage a large caseload and are generally considered a last resort when private guardianship arrangements cannot be established.