Last updated 15 July 2022
In cases where an adult with impaired capacity has neither appointed an attorney nor made an advance health directive, nor had a guardian appointed for health matters, a statutory health attorney can be automatically authorised to make health care decisions only (s 62 Powers of Attorney Act 1998 (Qld) (Powers of Attorney Act)).
Therefore, in the circumstances where there are no valid documents in place and a requirement to make health care decisions, there is a mechanism to ensure there is always someone who can make your health care decisions for you.
It is commonly assumed that next of kin or relatives have the right to make these decisions, but the Powers of Attorney Act provides categories of people that are authorised (s 63) in order of priority:
- a spouse or de facto partner if the relationship is close and continuing
- the person’s primary carer (but not a paid carer) who is over the age of 18
- the person’s close friend or relative, who is not a paid carer of the person but is over the age of 18.
A relative can also include a person who, under Aboriginal tradition or Torres Strait Islander custom, is regarded as a relative.
A paid carer is someone who is paid a fee or wage to care for the person but not someone receiving a carer’s pension or benefit.
The statutory health attorney is someone who is culturally appropriate and readily available. ‘Readily available’ means that if the first category of person on the list is not available, then the next category will be contacted (s 63 Powers of Attorney Act).
If there is no one who falls within any of these categories, then the Public Guardian is able to make the decision. The Public Guardian can also mediate disputes between more than one equally eligible statutory health attorneys. If the disagreement cannot be resolved by mediation, the public guardian may make the decision (s 42 Guardianship and Administration Act 2000 (Qld)). If a statutory health attorney does not consent to treatment in circumstances where a doctor has requested consent, or makes a decision contrary to the health care principles, the matter will be referred to the Public Guardian and the Public Guardian is then able to make the health care decision (s 43 Guardianship and Administration Act 2000 (Qld)).
A statutory health attorney has authority to consent to all health care except tissue donation, sterilisation, pregnancy termination and withdrawing or withholding life-sustaining treatment. They have the responsibility of selecting the least intrusive medical care, and considering the adult’s wishes and medical advice.
There is no formal procedure or form to complete in becoming a statutory health attorney, as eligibility is determined by a person’s relationship with the adult with impaired capacity at the time a decision is required. As people’s availability to act as a statutory health attorney can vary, a person may have a range of statutory health attorneys over a period of time.