The position of a statutory health attorney is provided for by section 62 of the Power of Attorney’s Act 1998.
The provisions of the Act appointing statutory health attorneys could potentially apply to you where you need to make medical decisions on behalf of another person because they are unable to do so, in a situation where:-
- there is no power of attorney or advance health directive in place for the person; or
- where the Queensland Civil and Administrative Tribunal has not appointed a Guardian for health care matters.
Under the legislation, a statutory health attorney is able to make any decision about a persons’ health matter where they are unable to do so due to a lack of capacity.
Whether a person can act as your statutory health attorney’s is dependent on their relationship to you. Section 63 of the Act outlines who can be a statutory health attorney, and these people are:-
- a spouse of the adult if the relationship between the adult and the spouse is close and continuing;
- a person who is 18 years or more and who has the care of the adult and is not a paid carer for the adult;
- a person who is 18 years or more and who is a close friend or relation of the adult and is not a paid carer for the adult.
An appointment will also be dependent on who is readily available and culturally appropriate to exercise power for the matter at the time. If no-one listed above is readily available and culturally appropriate, the Public Guardian is the adult’s statutory health attorney for the matter. Further, the Public Guardian may be required where parties cannot agree on an appointment or a method of treatment.
Statutory health attorneys’ can make decision in regards to most health care matters, these may range from the consent to surgical treatment to the cessation of life support. However, a statutory health attorney cannot make decisions that would be classed as special health care decisions, these are outlined in Part 3 of the Guardianship and Administration Act 2000 and include:-
- the donation of tissue;
- termination of pregnancy;
- special medical research or experimental health care.
A statutory health attorney’s power to act will only begin when the person lacks capacity and will cease once that person regains capacity. When making decisions, a statutory health attorney must for what is known as the ‘health care principle’ which means the attorney must act in a way that is necessary and appropriate to maintain or promote the adult’s health or wellbeing and is in the adult’s best interests.
In practice there can be difficulties in determining who is entitled to act, or with medical staff accepting instructions from a person entitled to act as a statutory health attorney. Reliance on the powers of a statutory health attorney is a last resort, when no proper legal arrangements have been put in place.
It remains desirable to have an Enduring Power of attorney in place. Of course you can also choose your own attorney, who may not necessarily be the same person that would be entitled to act as statutory health attorney.
If you are seeking advice in relation to a person you think may have lost capacity to make decisions, or if you wish to make a power of attorney or advance health directive please do not hesitate to contact our office.