Where a guardian appointed under this Act, an administrator, the Public Advocate, the Tribunal or any court or other person, body or authority makes any decision or order in relation to a person or a person's estate pursuant to this Act or pursuant to powers conferred by or under this Act—

• (a) consideration (and this will be the paramount consideration) must be given to what would, in the opinion of the decision maker, be the wishes of the person in the matter if he or she were not mentally incapacitated, but only so far as there is reasonably ascertainable evidence on which to base such an opinion; and
• (b) the present wishes of the person should, unless it is not possible or reasonably practicable to do so, be sought in respect of the matter and consideration must be given to those wishes; and
• (c) consideration must, in the case of the making or affirming of a guardianship or administration order, be given to the adequacy of existing informal arrangements for the care of the person or the management of his or her financial affairs and to the desirability of not disturbing those arrangements; and
• (d) the decision or order made must be the one that is the least restrictive of the person's rights and personal autonomy as is consistent with his or her proper care and protection.

Section 5 Guardianship & Administration Act 1993

Substitute decision-making means that someone “stands in the shoes” of a person and tries to make the decision that the person would have made for themselves if they could still make that decision. This is the “paramount” or most important consideration for the decision maker.

Making substitute decisions is different from making a decision that is in someone’s “best interests”. The decision maker needs to understand the person’s history, values and past lifestyle so that the decision can be made that best reflects their wishes.

The decision maker is applying that person’s values and life experience to the decision rather than applying their own, or community values and standards.

The person's likes, wishes and values are more important than doing what might appear to be the "best outcome" for the person.

Decision-makers may need to seek information and advice from others who know the person in order to get the best understanding of their values, attitudes and past behaviour.

When managing someone’s financial affairs, the attorney or administrator must also consider the financial position of the person and make careful decisions on their behalf. They are acting as a Trustee which means they must do certain things, under the law.

Wherever possible, a person should be given the chance to express their views, even if they are not fully able to understand their circumstances.

Sometimes their views will not be shown in words. Behaviour, including reactions to different things or people, can help you to understand what someone thinks or feels about a decision.

A person should have the ability to make a decision, unless there is evidence that they cannot.

A person may be able to make one decision, and not another – capacity should be assessed in relation to each particular decision. We call this “decision specific” capacity.

A person’s capacity may also change over time. Capacity could depend on a number of factors, such as how complex the decision is, the day or time, or the person’s level of stress.

Even where a legally appointed decision maker exists, a person may be able to make some decisions for themselves. Their wishes should be explored, and they should be supported to take part in the decision-making as much as they are able.

Many people have networks of family members, friends, or members of the community who help them solve their issues on a day to day basis. If someone does not have the capacity to make their own decisions, these helpers should act in a supportive way, and take into account the person’s past and current wishes. These helpers are said to be acting informally.

A decision maker appointed through some legal process would only question or change informal arrangements if:

• informal support/arrangements are not working
• the person does not agree with the informal decisions being made.
• it is clear that the decision-maker has legal responsibility for decisions which were previously being made informally.

It is normal for someone to want to help a person who is at risk of harm and, if necessary, protect them from their own risky decision-making, or from the behaviour of others. If possible, this protection should not infringe on or restrict the person’s rights.

Many decisions made by substitute decision makers will require balancing the person’s level of risk and protection. Sometimes knowledge of the person’s past values, attitudes and behaviour, and their current wishes will provide clear guidance to the decision maker. On other occasions this information is not available and the decision maker will need to consider:

• What is the benefit or burden to the person?
• What are the risks and consequences of the alternatives?
• What would others of similar age and background usually do in this situation?
• What do others believe is the best course of action?