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 from ELDAC (End of Life Directions for Aged Care), as well as 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. |