General principles of the Act
The general principles must be applied by a person or other entity, including an administrator, who performs a role under the Guardianship and Administration Act 2000 or an enduring document.
The general principles below are a summary only. For a full description refer to the Guardianship and Administration and Other Legislation Amendment Act 2019.
1. Presumption of capacity
An adult is presumed to have capacity to make their own decisions unless it is established they are unable to do so.
2. Same human rights and fundamental freedoms
All adults, regardless of decision making capacity, must have access to the same human rights and fundamental freedoms. These include:
- respect for inherent dignity, worth and equal rights
- individual autonomy and independence of persons
- full and effective participation and inclusion in society
- respect for difference and acceptance of persons with impaired capacity
- equality of opportunity and accessibility
- equality between all persons regardless of gender.
3. Empowering adult to exercise human rights and fundamental freedoms
Empower an adult to exercise their human rights and fundamental freedoms and encourage and support them to:
- perform social roles valued in society
- live a life in the community and to take part in activities
- achieve physical, social, emotional and intellectual potential
- become as self-reliant as practicable
- participate in the development of policies, program and services for people with impaired capacity.
4. Maintenance of adult’s existing supportive relationships
An adult’s existing supportive relationships should be maintained. This may involve consultation with the adult to:
- find out who are the members of the adult’s support network
- any persons who have an existing supportive relationship with the adult
- any members making decisions for the adult on an informal basis.
The role of families, carers and other significant persons in an adult’s should be acknowledged and respected.
5. Maintenance of adult’s cultural and linguistic environment and values
An adult’s cultural and linguistic environment and set of values, including religious beliefs, must be maintained and taken into account when making decisions.
For an adult who is an Aboriginal person or a Torres Strait Islander it is important to maintain the adult’s cultural and linguistic environment and set of values, including Aboriginal tradition or Island custom.
6. Respect for privacy
An adult’s privacy must be taken into account and respected.
An adult’s personal information, including health information, must be protected on the same basis as other people’s personal information is protected.
7. Liberty and security
An adult’s right to liberty and security on an equal basis with others must be taken into account.
An adult should not be deprived of their liberty except in accordance with the law.
8. Maximising an adult’s participation in decision-making
An adult has the right to make or participate, to the greatest extent possible, in decisions that affect the adult’s life.
An adult must be given the necessary support to enable the adult to make or participate in decisions affecting the adult’s life.
An adult must be given the support necessary to enable the adult to communicate the adult’s decisions.
To the greatest extent possible, a person or other entity, in exercising power for a matter for an adult, must seek the adult’s view, wishes and preferences.
An adult’s views, wishes and preferences must be taken into consideration and may be expressed orally, in writing or in another way e.g. by conduct.
An adult is not to be treated as unable to make a decision unless all practicable steps have been taken to provide the adult with support and access to information to make and communicate a decision.
9. Performance of functions and exercise of powers
When performing a function or exercising a power in relation to an adult it must be done in a way that promotes and safeguards the adult’s rights, interests and opportunities and is the least restrictive.
10. Structured decision-making
The person or other entity performing a function or exercising a power for an adult must:
- recognise and preserve the adult’s right to make the adult’s own decision
- if possible, support the adult to make a decision
- recognise and take into account any views, wishes and preferences expressed or demonstrated by the adult.
If the adult’s decision cannot be determined, the person or other entity must use the principle of substituted judgement and take into account the adult’s views, wishes and preferences would be if the adult had capacity.
Once this information has been recognised and taken into account a decision can be made.