RACGP aged care clinical guide (Silver Book)

Silver Book - Part C

Substitute decision makers

Silver Book - Part C
      3. Substitute decision makers

Last revised: 25 Jul 2023

In circumstances where health decisions (lifestyle decisions and consent to medical, dental and healthcare services generally) need to be made for a patient who no longer has capacity (this may be a temporary emergency or due to long-standing health issues), a substitute decision maker or a guardian may need to make decisions for the patient.

An appointed decision maker can be a person (eg family member, friend) or a body (eg public guardian).1 The legislative requirement for substitute decision making varies in each state and territory in Australia, and unfortunately there is no consistency in terms across jurisdictions (eg an enduring guardian in one jurisdiction may be a health attorney in another). This chapter outlines the legislation, define the different levels of decision-making power and provides other resources for guidance on guardianship.

Guardianship legislation provides:

  • an informal hierarchy of decision makers
  • a pathway for a patient (with capacity) to formally appoint someone to act as their health/lifestyle decision maker when they lack capacity
  • a court or tribunal to appoint a decision maker (for a patient without capacity). 

Table 1 lists the legislation for guardianship and substitute decision makers as outlined in each state and territory in Australia. 

Table 1. Legislation and requirements for guardianship in Australian states and territories
State/territory Legislation
ACT
NSW
NT
Qld
SA
Tas
Vic
WA
 

Please also see the factsheet on substitute decision making from ELDAC (End of Life Directions for Aged Care), as well as End of Life Law for further state and territory information. 

How does the role of a guardian differ from that of an attorney under an enduring power of attorney?

Table 2 defines the different types of substitute decision makers that GPs may encounter in RACFs. These roles are established under different legislation and have a different practical application to health and welfare decision-making powers. Terms may differ between states and territories. 

Table 2. Different types of substitute decision makers
Terminology Definition
Enduring powers of attorney versus power of attorney A power of attorney (POA) is a legal document that gives a person, or trustee organisation, the legal authority to act on behalf of a person while they have capacity. A POA is relevant only to financial decision making.
An enduring power of attorney (EPOA) is similar to a POA, but the appointment continues even once the patient no longer has capacity to make decisions.
In some jurisdictions, an EPOA can be for health and lifestyle matters and/or financial matters (eg Qld) or for lifestyle matters (eg Vic).
A patient must have capacity to complete a POA or EPOA.
Enduring guardian An enduring guardian is someone who is appointed to make lifestyle and health decisions on a patient’s behalf when the patient does not have the capacity to make these decisions for themselves.
As noted above, legislation in some jurisdictions may refer to this role using a different title (eg ‘enduring medical power of attorney’ in Qld; ‘advance care directive’ in SA; ‘medical treatment maker’ in Vic)
Public Trustee/Guardian The Public Trustee is the authority that provides independent, professional asset management and can be appointed to manage the assets of a person without capacity, or a deceased estate. The Public Trustee may also be able to assist with the drafting of wills and EPOAs (or equivalent).
The Public Guardian is the authority that can be appointed (eg by a tribunal) to provide independent, professional health decision making and consent on behalf of a person without capacity to do so.
This event attracts CPD points and can be self recorded

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