The Limits and the Social Legacy of Guardianship in Australia

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Abstract
Guardianship laws either for intellectually disadvantaged people alone, or for anyone with diminished functional capacity (such as victims of brain trauma), are now popular in Australia (other than in Western Australia and the Australian Capital Territory) and New Zealand. These laws are based on North American experience, particularly that of the Dependent Adults Act 1976 (Alberta). The common thread is that it permits a guardian to be appointed to manage the property or the personal affairs of the disadvantaged person, or to make one or more of the multitude of decisions lying within these two broad areas of human living.Contemporary legislation is notable for three things. First, partial orders are permitted (in place of only plenary orders). Indeed they are positively encouraged where any intervention at all is called for (the normalisation principle). Secondly, personal guardianships have been revived (having existed all along under cumbersome equity jurisdictions of – or associated with – superior courts).

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