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Principles of Substituted Judgement

Under section 5 of the Guardianship and Administration Act 1993 (SA), SACAT and any guardian or administrator must:

  • give primary consideration to what the wishes of the person with a mental incapacity would have been had she or he not been incapacitated;
  • establish and take into account (if possible) the present wishes of the person;
  • make decisions which are the least restrictive of the person's rights and autonomy consistent with the person's proper care and protection.

In addition SACAT cannot make or continue a guardianship or administration order if an existing informal arrangement is meeting the person's needs.

In very general terms, if the personal and financial affairs of the person with a mental incapacity are being informally well managed in the interests of the person SACAT will not need to make an order.

EXAMPLES

Substituted Judgement

  • If a person with a mental incapacity is a Jehovah's Witness, a guardian making medical decisions would need to respect the person's objection to blood transfusions.
  • If a person with a mental incapacity used to make regular gifts or donations to family members, a church or a particular charity, provided there was no danger to the welfare of the person, an administrator would need to continue to respect the wishes of the person and make appropriate gifts and donations.

Least Restrictive Alternative - Informal Arrangement

  • If a person has made an enduring power of attorney or advance care directive appointing a substitute decision-maker, and the enduring attorney or substitute decision-maker is acting properly SACAT is required to leave the arrangement untouched.
  • If a person's financial affairs consist of a social security pension as income, and this is being well managed by a family member, SACAT is required to leave the arrangement untouched.
Principles of Substituted Judgement  :  Last Revised: Fri Mar 27th 2015
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