Substitute decision makers are legally appointed to make decisions on behalf of another person. These decisions may be about financial, lifestyle or medical issues.
Each Australian state and territory has its own legislation overseeing the appointment of a substitute decision maker for adults aged 18 and over. In Victoria the key legislation is:
- Powers of Attorney Act 2014 - a person can appoint an attorney for personal and/or financial matters
- Guardianship and Administration Act 1986 - VCAT (also known as The Tribunal) can appoint guardians and/or administrators
- Guardianship and Administration Act 1986 - describes the role of the 'person responsible' who can consent, or withhold consent, to medical or dental treatment for a patient who is incapable of making this decision.
As a clinician it is essential to establish if an older person you are working with has existing arrangements in place to help them make decisions. These arrangements may be formal or informal.
Ask the older person if they have appointed someone under an enduring power of attorney to help them to make decisions. It’s also good practice to ask the older person’s spouse/domestic partner or family if they have been appointed as the older person’s substitute decision maker.
Find out if the person has made an advance care plan when they were competent to do so, which may express their preferences to inform future medical treatment. These plans are also known as an advance care directive, a living will, an advance directive, or statement of choices. The person’s substitute decision maker can use the plan to inform care and treatment of the person. Victorian health services must give due consideration to an advance care plan, no matter how it is documented.
Be aware that the legal context and decision-making powers regarding substitute decision makers, enduring powers of attorney, guardianship, administrators, and persons responsible is complex and can be misunderstood and confusing. Many people assume that if they are the ‘next of kin’ they automatically have the authority to make decisions on behalf of the older person, when this is not the case. If someone indicates that they are legally able to make decisions on behalf of an older person in hospital, best practice involves clarifying what arrangements are in place, by requesting permission to sight, interpret, copy, and document and store any relevant documentation on the patient’s record. Familiarising yourself with some of the commonly appointed roles and responsibilities can help alleviate this confusion and help you to work with the older person and their family or carers to explore less restrictive options before making an application for guardianship.
In Victoria there is different legislation regulating the powers of substitute decision makers. The law is complex and is currently under review. Read this section in conjunction with the Office of the Public Advocate (OPA) website and call their Advice Service if you need clarification.
Substitute decision makers appointed by completing a power of attorney
Any person who is 18 years or over and has decision-making capacity in relation to making an enduring power of attorney, as defined in the Powers of Attorney Act 2014, can make a personal appointment of a substitute decision maker(s). These types of substitute decision makers are initiated by completing a power of attorney document. There are different types of powers of attorney for different purposes. In the event a person loses capacity, the enduring power of attorney is the only type of attorney that would have legal decision-making authority in relation to medical treatment.
As these legal documents are not formally monitored or lodged on a central registry, ask the older person or their substitute decision maker for a copy of the documentation so you can review what type of decision-making authority has been granted. Record and store it on the person’s medical record.
Types of attorneys
Attorneys appointed governed by the Powers of Attorney Act 2014 (which commenced in September 2015) include:
General non-enduring powers of attorney are often used for a specific financial matter and a fixed period of time, for example, paying bills for a person while they are travelling overseas. These types of attorneys are not for future planning, and are only valid when the person who made the power of attorney (known as the principal) has decision-making capacity.
Enduring powers of attorney can be used to plan for the future. They can give the appointed substitute decision maker the authority to act immediately upon making the appointment, or at a later date when the person who appointed them ceases to have capacity to make their own decisions about financial matters, personal matters, both financial and personal matters or specific financial and/or personal matters. Personal matters include healthcare matters, for example, whether to consent to medical treatment, access to support services and where and with whom a person lives.
Supportive attorneys are a new feature in this Act. They are designed to promote autonomy and dignity for a person who is able to make decisions themselves. The supportive attorney can assist the person to make and give effect to decisions about personal and or financial matters by providing support and helping them work through the decision-making process. It can cover information, communication and putting decisions into practice. The supportive attorney has the power to communicate with organisations on behalf of the person, for example hospitals and banks. The appointment has no effect during any period that the person does not have capacity to make decisions about the relevant matters.
Enduring powers of attorney (financial) and enduring powers of guardianship made prior to 1 September 2015 remain valid.
Enduring powers of attorney (medical treatment) are appointed by the principal under the Medical Treatment Act 1988. The powers and obligations of people (who are known as agents) appointed under these documents differ to those of attorneys appointed under enduring powers of attorney, in accordance with the 2014 Powers of Attorney Act.
Consult the OPA website for more details on these attorneys. Speak to the Advice Service at OPA if a decision needs to be made and you are concerned that a person appointed under an enduring power of attorney is not acting in the best interests of an older person who has lost capacity to make decisions for themselves.
Tribunal appointment of a substitute decision maker
Any individual can make an application to the Guardianship List at VCAT to determine whether or not a person is in need of a substitute decision maker. VCAT must always try to make an order that is least restrictive of the person’s freedom of decision and action. Under the Guardianship and Administration Act 1986, VCAT has the power to appoint a guardian and/or an administrator:
A guardian may be appointed for a person who has a disability that is impairing their judgement and who needs a substitute decision maker to make a specific decision or multiple decisions about lifestyle and healthcare matters. VCAT must be assured the the guardian will act in the represented person's best interests. When there is no willing or suitable person to accept the role the Tribunal can appoint the Public Advocate as a limited or plenary guardian of last resort.
- A guardian can make decisions about health care, accommodation, employment, and access to people, including restricting or prohibiting particular people from having contact with the represented person.
- VCAT may make an order appointing a limited guardian (the order will specify the type of personal and lifestyle decisions that the appointed guardian can make) for the person, or on rare occasions a plenary guardian (this order enables the guardian to make all necessary personal and lifestyle decisions and may include medical decisions).
- The duration of an appointment is specified in the order. All orders must be reassessed within three years. The date of the reassessment is usually written on the order. Sometimes there are ‘self-revoking orders’ which means that the order will expire on the specified date, unless someone seeks a hearing.
An administrator may be appointed to make financial decisions when a person cannot make reasonable judgements about managing their estate, and there are concerns about the decisions they are making, or about decisions that others are making for them.
- An administrator can only make financial and legal decisions related to the estate of a person with a disability, such as banking, paying bills and coordinating financial and legal affairs to enter residential care.
- An administrator can be a willing individual, a professional with appropriate expertise or a trustee company such as State Trustees Ltd.
- Each order is time limited. The Act does not permit or order to be made for more than 3 years without being reassessed.
- Administrators are required to submit reports regularly to VCAT for review.
Although this topic does not explore the process of applying for administration orders, it is important to note that they too can play a large role in facilitating discharge planning, particularly if the person needs assistance to organise their affairs to pay for residential or community based aged care services and they have not appointed a substitute decision maker, under an enduring power of attorney, when they had capacity to do so.
Automatic appointment of a substitute decision maker
Where a person is temporarily or permanently unable to consent to medical treatments, the Guardianship and Administration Act 1986 recognises a ‘person responsible’ as a substitute decision maker. This process is mandated, and the following steps must be followed unless emergency treatment is required.
- To establish the 'person responsible' in this situation, the treating team must follow the hierarchical guide in the Can your adult patient consent? flowchart.
- If a medical or dental practitioner is unable to identify or contact a person responsible, and he or she believes treatment is in the best interests of the patient, they must complete a Section 42K notice and submit it to the OPA before undertaking treatment. This does not apply to emergency treatment.
- Where the medical team believes treatment is in the best interests of the patient, but the person responsible does not consent, they can complete a Section 42M notice and submit a copy to both the person responsible and the OPA, or apply to VCAT for a guardianship order. In these circumstances it is best to first call the OPA to discuss appropriate options. Acting contrary to the decision of a person responsible should be seen as a last resort. A doctor must wait seven days before providing the treatment, to give the person responsible time to appeal to VCAT.
Many people - often family and friends - informally assist someone with a decision-making disability to make decisions. As a clinician, you will be aware of cases where these types of arrangements work quite well and this may mitigate the need to apply for a formal appointment through VCAT.
However, a valid consent should be sought from a person with authority (or a section 42K notice completed) prior to administering medical or dental treatment to a person without capacity.
In cases where you believe the wishes of an older person with a decision-making disability are not being respected, or they are experiencing or are at risk of harm or neglect, explore your concerns with them and your team, and contact the OPA Advice Service.