Who Decides for Someone Who Cannot? Authority Granted by a Court

The law generally presumes that adults decide for themselves and that parents decide for their children, and a guardianship is the mechanism for the situations neither presumption covers. A court transfers specified decision-making authority to a named person, either over a child whose parents cannot exercise it or over an adult whom the court finds unable to make particular decisions. The authority granted is legal rather than moral, meaning banks, hospitals, schools and landlords must deal with the appointed person as though they were the individual concerned. Terminology differs between jurisdictions, with guardianship, conservatorship, deputyship and tutelage naming overlapping arrangements, and the differences between them are real but mostly procedural.

Appointments are meant to be limited to what is necessary:

• •Where the person lives, including whether they move into residential care
• •Medical treatment, including consenting to or refusing particular procedures
• •Money, property, benefits and contracts entered in the person's name
• •Education and schooling decisions for a child
• •Day to day arrangements including who the person has contact with
• •Legal proceedings brought or defended on the person's behalf

Two different tests govern what an appointed person is supposed to do, and the distinction matters. The best interests standard asks what would objectively benefit the person, which is the usual approach for children and for adults who have never had capacity. The substituted judgement standard asks what this person would have chosen, drawing on their known values, prior statements and past decisions, which applies where capacity has been lost after being held. Modern legislation in several countries has moved further, requiring that the person be supported to decide for themselves wherever possible and that a substitute decision be made only where that fails, which reflects a treaty obligation and represents a substantial change in principle from the older model.

Guardianship is the most drastic option and several lighter arrangements exist that do the same work with less loss of autonomy. A power of attorney made in advance lets a person choose who will act for them if they later cannot, on their own terms, which is why legal advice consistently urges making one while capacity is unquestioned. An advance directive records treatment decisions in advance and binds those providing care. Supported decision-making agreements formalise a circle of trusted people who help a person understand options and communicate a choice, without transferring authority at all, and several jurisdictions now recognise them in statute. Appointing somebody only over finances, or only over health, keeps the rest of the person's authority intact.

The arrangement concentrates authority over a person who by definition cannot easily complain, and the failures follow predictably. Financial exploitation is the most documented, ranging from outright theft to excessive fees charged by professional appointees, and oversight in many jurisdictions consists of annual accounts that nobody examines closely. Appointments are sometimes made too broadly, removing authority over decisions the person could still make. They are difficult and expensive to terminate once in place, even when the original justification has passed. Public attention to several contested cases, including a widely reported American conservatorship ended in 2021, has driven reform proposals focused on limiting the scope of appointments, requiring regular review and strengthening the right to independent representation.

A court transfers specified decision-making authority to a named person where neither self-determination nor parental authority covers the situation, and third parties must then deal with that person as though they were the individual. Appointments are supposed to be limited to what is necessary and frequently are not. Best interests and substituted judgement are different tests, and modern law increasingly requires supporting a person to decide before deciding for them.