Substitute decision-makers

• Types of substitute decision-making arrangements
• Advance health directives and decision-making
• Eligibility
• Becoming a substitute decision-maker
• Dealing with disagreements

A substitute decision-maker is a person permitted under the law to make decisions on behalf of someone who does not have capacity.

A person can have more than one substitute decision-maker.

The decisions made on behalf of a person by their substitute decision-maker(s) can be about personal (including health) decisions or financial matters.

Types of substitute decision-making arrangements

You may appoint a substitute decision-maker(s) formally through:

• an order of the Queensland Civil and Administrative Tribunal (QCAT) (as a guardian) or
• an enduring power of attorney (as a personal attorney and/or financial attorney); or
• an advance health directive (as a health attorney).

If you have not appointed a substitute decision-maker(s) and your capacity is impaired, the law automatically grants power to somebody to make health decisions for you. This is called a statutory health attorney. No documentation is completed for this role. By law, a statutory health attorney is the first, in listed order, of the following people who is readily available and culturally appropriate to act:

• a spouse or de facto partner, if the relationship is close and continuing
• a person who is responsible for your primary care (but not a paid carer) over the age of 18
• a person who is a close friend or relative (but not a paid carer) who is over the age of 18.

If there is no one who meets the criteria for this, the law will recognise the Public Guardian as your statutory health attorney.

Read more about:

• making decisions for others and the legal entities that guide Queensland’s guardianship system
• capacity
• family and carer rights.

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Advance health directives and decision-making

Valid advance health directives effectively act as the decision-maker for a person with impaired capacity. For example, documenting that you do not want to be resuscitated in your advance health directive is the same as if you expressed that choice while you had capacity. Appointed substitute decision-maker(s) or family cannot override a valid advance health directive.

It is important to know that directions to withhold or withdraw life-sustaining measures are only valid in an advance health directives in the following situations:

• if you have a terminal illness and you are expected to die within the next 12 months;
• if you do not wake up from a coma; or
• you are suffering from an illness or injury that is so severe that you cannot live without life support.

If the directions in your advance health directive are uncertain or inconsistent with good medical practice, your doctor will make decisions about your medical treatment according to good medical practice. This includes discussing your treatment with substitute decision-maker(s) or family when possible.

Good medical practice

Good medical practice means a doctor is required to treat you in accordance with recognised medical and ethical standards, practices and procedures. The Good Medical Practice Code of Conduct for Doctors guides a doctor’s professional judgement in providing treatment and care to you.

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Eligibility

A substitute decision-maker must:

• be aged 18 years or over
• have capacity
• follow your values and instructions
• be available to take on the role
• be willing to accept this responsibility
• be able to make decisions in stressful situations.

A substitute decision-maker cannot be your paid carer or healthcare provider. A carer who receives a carer's payment or similar government benefit is not legally considered a paid carer.

You should discuss your values and wishes with your nominated substitute decision-maker(s). They must understand and respect your choices so they can represent your best interests and what you would want when the time comes.

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Becoming a substitute decision-maker

If you are required to make important decisions about someone's healthcare, you will be given options about available treatments. Any decisions you make on behalf of someone should reflect their views and wishes, rather than what you would want. The healthcare team can provide information and support if necessary.

You will only need to act in this role if the adult loses capacity for decision-making about health matters.

Responsibilities

If you are the substitute decision-maker for someone who has lost capacity, you must:

• act in their best interests
• make decisions you believe they would have made for themselves
• gain an understanding of their medical condition and potential future complications
• gain an understanding of future medical care options, particularly the benefits and risks of current and future treatments
• give careful consideration to their choices for end of life care if they have expressed them to you, as well as their goals, values and personal and spiritual beliefs
• discuss available choices with family/trusted others and document these choices
• talk to them about recording their wishes while they have capacity, or regain capacity for decision-making.

Some people may change their views and wishes during the course of their illness and as the substitute decision-maker you must take this into account.

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Decision-making in an emergency

In an emergency situation (for example, following a serious accident) you may need to make a decision very quickly. The healthcare team will guide you through this time.

However, sometimes there may not be enough time for you to be contacted or to have the healthcare team explain the situation. In an acute emergency, the doctor will use good medical practice and act in the person's best interests to deal immediately with the clinical situation.

In other cases, a person's condition may have been deteriorating for some time and you may be aware of the circumstances involved. This may allow time to consider all the information and consult with others who may also be part of the person's support network.

Read more about making healthcare decisions for others.

Dealing with disagreements

Disagreement about treatment choices can occur between family members, as well as with the healthcare team. It can be a difficult issue after you lose capacity.

Disagreement between family members

Disagreement between family members can occur when there are differing expectations about your care and your likelihood for recovery.  Disagreement can also occur where there is more than one person who is legally able to make decisions for you.

In these cases, the healthcare team will provide support and information so the person(s) making decisions on your behalf will be supported to act in your best interests. The healthcare team will allow time for families to come to terms with matters causing conflict.

Appointing an enduring power of attorney/s and clearly communicating/documenting your wishes can reduce the chance that disagreement will occur.

If you have impaired capacity, and your decision-maker(s) cannot resolve matters, they can contact the Office of the Public Guardian to help resolve disagreements.

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Disagreement with the healthcare team

Disagreement can occur when treatment proposed by your healthcare team is not what your substitute decision-maker(s) or family request on your behalf.

Sometimes certain treatments are not medically appropriate, regardless of any previously held wishes, discussions or documentation.

Legally, no one can insist on medical treatment that would not meet the standards of good medical practice.

Your healthcare team is required to make all efforts to communicate to your decision-maker(s) and your family to help them understand:

• your condition and prognosis
• the reasons for the treatment recommendation
• why it is in your best interests.

It may be helpful to involve social work staff, or other staff your family have formed a relationship with.

If your substitute decision-maker(s) is not satisfied with your care, they can seek a second medical opinion.

If the healthcare team believe your substitute decision-maker(s) are not making decisions that are in your best interests and not what you would want for yourself, they can also contact the Office of the Public Guardian.

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Information for people appointed as enduring power of attorney

• How to act appropriately as an Attorney under an enduring power of attorney (EPOA) in Queensland (video)
• My duties and responsibilities as an Attorney under an EPOA in Queensland (factsheet)
• The General Principles and Health Care Principle (factsheet).

Disclaimer

The information provided on these pages is general in nature and is not intended as legal advice. Advance care planning scenarios will often be complex—you need to consider individual circumstances, and sometimes the level of detail and extra information required will mean you need to seek more advice. If you are in any doubt contact the Office of the Public Guardian, or seek legal advice.