Power of Guardianship and Medical Power of Attorney
Changes to the Consent Act and what this means for you!
Most of us will have heard the term “Power of Guardianship”. This is where we are able to appoint a trusted person to act for us and make decisions on our behalf when our own decision-making capacity is impaired (for example, through age or infirmity). However, what most people do not realise is that your guardian is only able to make lifestyle decisions for you, such as where you live or what support services you receive. They are not able to determine the medical treatment you receive (this is done by a Medial Power of Attorney). Nor are they able to make financial decisions on your behalf (done by a Power of Attorney). Perhaps more importantly, unless you had a guardian and medical agent appointed, it could be very difficult for carers and health practitioners to assist, since they could be held liable for their actions when relying on the direction of a close friend or family member in the absence of a Power of Guardianship or Medical Power of Attonery (frequent examples have been where a medical practitioner determined that life-prolonging treatment was no longer beneficial for a patient, but they had a legal obligation to continue treatment because there was no medical agent appointed to direct otherwise).
The complexity arises because there are three (yes, three) separate Acts (pieces of law) governing these areas: the Powers of Attorney and Agency Act 1984, the Guardianship and Administration Act 1993, and the Consent to Medical Treatment and Palliative Care Act 1995. Confusing!
However, sanity has prevailed and on 1 July 2014 changes to the Consent to Medical Treatment and Palliative Care Act 1995 came into effect, as well as the new Advance Care Directives Act 2013.
Although they do not affect financial decisions made on our behalf (we must still appoint a Power of Attorney to make these decisions for us), the effect of these two Acts is to combine the Power of Guardianship and Medical Power of Attorney in to a single document, called an Advance Care Directive (“ACD”). A valid ACD is one which is freely signed by the person making it and witnessed by an authorised witness.
Using an ACD, we can appoint one or more Substitute Decision Makers (“SDM”) to act on our behalf and make legal arrangements for our future preferred living arrangements and other personal matters, health care or end of life. A SDM can be any adult, not necessarily a close friend or relative (but cannot be a paid professional responsible for your care, such as your doctor or nurse) and they must make the decisions we would make in the same circumstances.
Being much more “user friendly” than the old forms, the new ACD form lets us write down our instructions, values and wishes for future health care, residential, accommodation and personal decision-making, and is binding on our SDM (if we have appointed one) or the carer or health practitioner concerned. The ACD takes effect or applies during any period of our impaired decision-making capacity, which may be temporary or permanent.
If we make an ACD, and a SDM has been appointed, they can consent or refuse to consent to health care, medical treatment and life sustaining treatment. However, just like previous medical agents, SDMs cannot refuse pain relief or the natural provision of food and water by mouth.
If an SDM has not been appointed but there is a relevant instruction in the Advance Care Directive, then that instruction is considered to be legally binding consent or refusal of consent. Health practitioners can rely on an ACD in good faith and without negligence and are protected from criminal and civil liability for doing so.
So, why should you make an ACD? If you already have already appointed guardians and medical agents in an existing Power of Guardianship or Medical Power of Attorney, then these appointments continue to be valid and effective (however, you should regularly check to see if your guardians and medical agents are still willing and able to accept their appointments). If you have no one appointed to make decisions for you, or wish to update a previous appointment, then you should consider making an ACD.
Advance Care Directives are for times when you can’t speak for yourself. They are a way for you to give consent for certain situations where you might want or not want treatment, and they can also be used to appoint someone to make decisions for you if you can’t do so yourself. An ACD gives you a better chance of having your wishes carried out, even if you can’t talk to your carers or doctors about what you want. Also, having an ACD can help avoid conflict between your family and friends as to what your wishes actually are, or even who should be making decisions for you – they would have to follow what you have written in your ACD!
Your ACD may also contain binding provisions, for example, a refusal of health care (including medical treatment and life-sustaining measures). To be binding the provisions must be relevant and applicable to the current circumstances as set out in the ACD. Health practitioners and SDMs must comply with a binding provision (unless there is reasonable evidence that you have changed your mind).
So you still do not want to make an ACD? Well, another effect of the new changes has been to create a class of person, called a Person Responsible, to describe those people close to us who are able to make lifestyle and health care decisions on our behalf when our decision-making capacity is impaired, and on whose decisions carers and health practitioners can rely in good faith (and not be held accountable).
A Person Responsible now has legal authority and can provide or refuse consent to medical treatment on our behalf, and their direction is as binding as if we had given it ourselves. Previously medical practitioners may have been legally compelled to provide treatment to a patient even if they thought it to be futile. The law now clearly states that medical practitioners are under no duty to use, or to continue to use, life sustaining measures in treating a patient if the effect of doing so would be merely to prolong life in a moribund state without any real prospect of recovery. A medical practitioner may now withdraw life sustaining measures from a patient if a Person Responsible directs them to do so. However, a like a SDM, a Person Responsible must try and make a decision that we would make in the same circumstances.
At the end of the day, what is certain is certain! If you have the systems in place to avoid conflict and get the type of care you want, then potential problems may be avoided down the track when you are not able to voice your own wishes. It is better to make an Advance Care Directive and review it regularly, then to leave things to chance!