Substitute Decision Making

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Authorising others to make your decisions

Fidelity legal can assist you plan for the possibility that you may not be able to make some decisions for yourself at some stage of your life and guide the people who you trust to do so how you would like them to act. This can be done by a Power of Attorney in the case of financial decisions and, in the case of decisions concerning medical treatment, through an Advance Health Care Directive and / or Appointment of an Enduring Guardian.   

People often avoid planning for these contingencies but do so at the cost of leaving family or trusted friends without the tools to act in the way you may have wanted.

Power of attorney

A power of attorney gives some-one who you trust (the attorney) the authority to make legal and financial decisions and enter into legal transactions on your behalf. Your attorney can buy assets in your name, and can sell your assets, such as real estate or shares, or can operate on your bank accounts and spend your money. A power of attorney usually operates from the moment it is signed but does not operate after your death.

A power of attorney cannot be used for health or lifestyle decisions. This is dealt with in more detail below under the heading Decisions on Medical Treatment. 

Your attorney must always act in your best interests. Unless the attorney is expressly authorised, the attorney cannot gain a benefit from being an attorney. Your attorney should keep his/her own money and property separate from your money and property (unless he/she is a joint owner, or operates a joint bank account). Your attorney should keep reasonable accounts and records about your money and property.

The law relating to powers of attorney is State-based law. A Power of Attorney prepared in NSW is for use in New South Wales only. If you need a power of attorney for interstate or overseas, you may need to make a power of attorney under the laws of the relevant jurisdictions. The laws of some other States and Territories in Australia may give effect to NSW power of attorney. However, you should not assume this will be the case and seek advice on the specific uses which you anticipate your Attorney will make of the Power of Attorney. 
Couple discussing with the professional

If the attorney is signing documents that affect real estate, the power of attorney must be registered at Land and Property Information NSW.


Decisions on Medical Treatment

When can you consent to medical treatment?
You can validly consent to medical treatment only when your consent is freely given. For example, if you consent merely because you believe you will be refused further treatment if you do not consent, your consent has not been validly given. In addition, you should receive accurate and appropriate information about your condition, treatments and proposed procedures.

To ensure that your consent is valid, you should be provided with as much information as possible. Amongst other things, you should be told and understand: 
  • your condition, or illness, including its severity or the result of any tests which you undergo; 
  • the diagnosis of your condition and the accuracy of the assessment;
  • the various treatments which are available and the relative advantages and disadvantages of each, the risks associated with these, including possible side effects and likely outcomes; 
  • what will be done, how long it will take and expected recovery;
  • the financial cost of any procedures or treatment; and
  • the qualification and experience of doctors and other workers who may be treating you.
Consent must be given for the particular procedure or treatment. If you consent for a particular course of action, the doctor (unless special circumstances arise) cannot carry out a different treatment.  

Consent is not required in emergencies where treatment is life saving, to prevent serious damage to a patient's health or to prevent the patient from suffering significant pain, and the consent cannot be obtained, for example if you are unconscious. In these cases doctors and other health workers are under a duty to act in your best interests. Also, consent is not required if the treatment has been authorised by the Guardianship Tribunal. 

Can you withhold consent?
Yes. A fully competent patient is capable of refusing treatment or medical procedures. You, as a patient, have a right to self-determination and personal autonomy.

However, where a guardian is appointed for a patient, the failure to consent may be overridden by the Guardianship Tribunal and a Court.

Euthanasia
Euthanasia is the active and deliberate intervention by a second party to end life, with the express wish of the first party. This is distinct from discontinuing treatment or failing to consent to the commencement of treatment at the patient's request. Euthanasia is illegal in all states and territories in Australia.

What happens if you are unable to consent?
In most cases, a doctor can only give you medical treatment if you have consented to that treatment. If you lack capacity, you cannot give consent to that treatment, unless you have specified your wishes about the treatment before losing capacity.

Capacity

What is capacity?
Decisions about your health care, whether it be immediate treatment, or long term health care, are only valid if you have capacity when you make the decision. To 'have capacity', you must be capable of understanding the nature of the decision you are making and the effects that that decision will have on you and on others. If you have capacity, you are described as being 'capable'.
 
How is capacity measured?
There are no numeric measures or tests which can be done to determine if you have capacity. Capacity is not determined by whether you can perform a certain task, or by whether your decision is seen as wise by the people around you.

Capacity is measured by your ability to understand the consequences and nature of a specific decision. For example, you may have capacity to make a decision about whether to be treated for a particular health problem, because you can understand what is wrong with you, what the treatment will involve, and what the long term consequences of the treatment will be, but at the same time not have capacity to manage your financial affairs, because you are not capable of understanding the extent and nature of your finances, and the consequences of the decisions you are making about your finances.

People with mild intellectual disabilities may still be capable. It is also possible that you may lose capacity temporarily, for example if you suffer from an illness, but later recover from it. People in the early stages of dementia may lose capacity on a temporary basis.

Your capacity to make a decision is assessed at the time that you need to make that decision. If you are assessed as not being capable, this does not necessarily mean that you will never have capacity again.
 
What happens if a person doesn't have capacity? 
If you don't have capacity and you have not specified how you want to be treated before losing capacity, someone else will make the decision about whether you should receive medical treatment, and if so, what sort of treatment that should be.

The Guardianship Act 1987 (NSW) sets out a list of people who will make that decision for you if you lack capacity. The decision will be made by a "person responsible" who will be either:
  • a guardian or enduring guardian, or, if there is no guardian or enduring guardian,
  • the most recent spouse, de facto spouse or same sex partner with whom you have a close and continuing relationship; or, if there is no spouse, de facto spouse or same sex partner,
  • an unpaid carer who is now providing support to you or provided support before you entered residential care; or, if there is no carer,
  • a relative or friend who has a close personal relationship with you
When appointing a guardian the Guardianship Tribunal must be satisfied that the proposed guardian's personality is generally compatible with the person under guardianship, there is no undue conflict between the interests and the guardian is willing and able to exercise his or her functions. 

If there is no one falling within any of these categories, the Guardianship Tribunal may act as a substitute decision maker.

The decision maker gives consent if minor medical or dental treatment is required.
If the decision maker is not available, the doctor or dentist can proceed with minor treatment without consent if they can see from the patient's record that the treatment is necessary to promote the patient's health and well being and that the patient is not objecting to the treatment.

For major medical treatment, only the decision maker or the Guardianship Tribunal can give consent.

Consent cannot be given for treatments which are administered for the benefit of health carers, or health professionals. For example, a nursing home that is short of staff cannot ask a decision maker to consent to sedate residents to make it easier to care for them.

How can I retain control over my health care decisions if I lose capacity?
As discussed above, every person has the right to refuse or accept medical treatment, but the difficulty arises when you wish to ensure that you receive the treatment that you desire, when you are not in a position to make your preferences and desires clear. 

You need to make clear your wishes about your future health care while you still have capacity. Some informal ways of doing this are by making your wishes known to friends, relatives and your doctor, and by writing your wishes down.

There are also some formal legal steps that you can take to ensure that your wishes are respected. 

Consider the following possibilities:
  • enduring guardianship; and
  • advance health care directives.

Enduring Guardianship

An enduring guardian is someone who you appoint to make personal and lifestyle decisions and/or decisions about medical treatment on your behalf, if you are unable to make those decisions yourself. 

Appointing an enduring guardian determines who can make a decision on your behalf, however it does not deal with the content of those decisions. You may choose to rely on your enduring guardian's ability to make decisions and have confidence that he or she will act in your best interests. However, you may prefer to write down your wishes in the form of an advance health care directive. This is discussed further below.

The appointment of an enduring guardian must be in writing and in approved form. Both you and your appointed enduring guardian must sign the document in front of your solicitor, barrister or a clerk of a local court. 

The appointment will only take effect when you no longer have the capacity to make decisions and are incapable of understanding the general nature and effect of proposed treatment and incapable of indicating your consent or opposition to the proposed treatment. You may appoint more than one enduring guardian, to act on your behalf or different enduring guardians with separate functions. 

Your enduring guardian must be over 18 years of age and not directly or indirectly involved in any aspect of your medical treatment. 

Enduring guardians appointed to consent to medical and dental treatment can only act under Part 5 of the Guardianship Act, which authorises them to consent to major and minor treatments that will promote and maintain the health and wellbeing of the person who has appointed them. 

An enduring guardian can consent to a medical or surgical procedure, operation, examination and any prophylactic, palliative or rehabilitative care customarily carried out by a medical practitioner. The authority to consent depends on the specific type of treatment. In particular, an enduring guardian cannot commit on your behalf for special treatment which includes any new treatment that has not yet gained the support of a substantial number of medical practitioners or dentists specialising in that area.

The appointment should detail the functions the enduring guardian is to exercise, and any conditions or limitations you desire. 

An enduring guardian does not have the authority to override your objections.  

The appointment may be revoked in writing until you no longer have the capacity to understand your decisions. Any revocation must be witnessed by a solicitor, barrister or a clerk of the local court and be given to the person previously appointed as your enduring guardian.

An enduring guardianship appointment can be reviewed by the Guardianship Tribunal or the Supreme Court that can suspend, confirm, revoke or vary the enduring guardianship appointment.
Couple in consultation with the expert over Guardianship
Health care consultation session in progress

Advance healthcare directives

An advance health care directive (sometimes called a "living will") is a written statement which contains detailed information about the medical treatment which you desire.

It comes into effect only when you are no longer able to make your own decisions. 

In NSW, advance health care directives are not supported by legislation, unless they are part of the appointment of an enduring guardian. However, if a potential decision maker, such as a health care worker or guardian appointed by the Guardianship Tribunal is aware of the existence of your advance health care directive, it is likely to be influential when decisions about your health care are made. An advance health care directive should be up to date and consistent with anything you have said to the decision maker previously. 

As an advance health care directive has no set format, it is desirable to consult a solicitor about preparing one. You should discuss your proposals with your doctor, health care worker, friends and family as well as disclosing the contents of any directive to them after it is made.  
 
[The above notes are based on material prepared for the Law Society of NSW]

Contact us to give instructions about how and when another person can make decisions for you.

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