Australia’s aging population has made it increasingly important to have clarity and certainty regarding the persons who will have authority to make decisions for you in the event you are unable to make decisions for yourself. A person may lose capacity to make their own decisions due to a range of issues including dementia, stroke, illness or injury. An Enduring Power of Attorney allows you to appoint Attorneys to make decisions regarding your financial matters you’re your health matters. Only a person who has capacity is able to make an Enduring Power of Attorney, so we recommend every person make an Enduring Power of Attorney while they are well and healthy and able to do so.
If a person has not made or is unable to make an Enduring Power of Attorney, the law in Queensland provides legal authority for a person known as a “statutory health attorney” to make decisions regarding the health matters of a person who has lost capacity to make their own decisions regarding their health matters.
This article looks more closely at the who the law designates as a statutory health attorney, types of decisions a statutory health attorney can make, the limitations of a statutory health attorney and the responsibilities inherent in the role.
Who can be a statutory health attorney?
The law states that the statutory health attorney is the first, in listed order, of the following people who is readily available and culturally appropriate:
- A spouse of the person if the relationship is close and continuing;
- An adult who has the care of the person and is not a paid carer or health care provider;
- An adult who is a close friend or relation and is not a paid carer or health care provider
- If there is no one in the above categories, then the Public Guardian.
Decisions a statutory health attorney can make
Perhaps the most critical role of a statutory health attorney is in making medical treatment decisions on behalf of the principal. The statutory health attorney has the authority to provide consent for medical procedures and interventions on behalf of the principal. This extends to routine medical treatments, diagnostic procedures, and other healthcare services. The attorney may also make decisions regarding the selection of healthcare providers, including choosing hospitals, medical facilities, and healthcare professionals to care for the principal.
In situations where the principal is facing a terminal illness or irreversible condition, the statutory health attorney can make decisions about life-sustaining measures. This may involve choices about palliative care, the withholding or withdrawal of life-sustaining treatment (such as CPR, assisted ventilation or artificial nutrition and hydration, ), and other matters related to the quality of life in the final stages of life. If the person has made an Advanced Health Directive (AHD) which states their directions for future health care, including their directions about life-sustaining measures, then the AHD must be followed.
A statutory health attorney cannot make decisions regarding certain matters which are described as “special health care” matters, including the donation of tissue, sterilisation, termination of a pregnancy, or participation in special medical research or experimental health care. Special health matters such as those listed must be consented to by the Queensland Civil & Administrative Tribunal (QCAT).
Limitations of a statutory health attorney
A statutory health attorney will only have authority to make health decisions for a principal if:
- the principal is unable to make their own health decisions; and
- the principal has not appointed an Attorney for health matters under an Enduring Power of Attorney.
A statutory health attorney can only make health decisions. They do not have any power to make decisions regarding the financial affairs of the principal. If a person loses capacity to make their own financial decisions and they have not made an Enduring Power of Attorney appointing an attorney to make financial decisions, there is no equivalent to a “statutory health attorney” for financial matters. The only option in the circumstance is for a person or family member to apply to QCAT to be appointed as an administrator for the person’s financial affairs.
Responsibilities of a statutory health attorney
A statutory health attorney’s foremost responsibility is to ensure the decisions they make are in the best interests of the health and wellbeing of the principal. This may involve diligently carrying out the principal’s wishes as expressed in an AHD, for example.
The attorney needs to be able to communicate effectively with medical professionals and healthcare professionals to advocate for the principal’s best interests. They must also maintain the principal’s privacy and confidentiality, handling all medical information with discretion and disclosing only what is necessary for effective decision-making.
A statutory health attorney is also expected to:
- choose the least intrusive medical treatment where options are available;
- take the principal’s views and wishes into account as much as possible;
- consider a doctor’s opinion.
The role can be either permanent or temporary and will cease if the principal regains the capacity to make their own health decisions. A different person may become the principal’s statutory health attorney in future, should the principal lose capacity again, meaning the role is not necessarily ongoing.
Speak with experienced legal professionals about a statutory health attorney
In Queensland, a statutory health attorney can play a pivotal role in protecting an incapacitated person’s well-being, making critical health decisions on their behalf. Understanding the responsibilities and scope of authority inherent in this role is essential, particularly given the gravity involved in potential health decisions and decisions regarding end-of-life. Further, there can be disputes regarding who is the statutory health attorney and obstacles in having the organisation you are dealing with (for example, the hospital or residential aged care facility) recognise and accept the decision making authority of the statutory health attorney.
For more information or guidance on the issues raised in this post, get in touch with our expert legal team at Delaney & Delaney. We regularly assist clients who take on this role for loved ones who’ve lost capacity to make decisions and can provide you with the right advice for your situation.