A person has a stroke, a serious accident or a rapid decline into dementia. That person is subsequently hospitalised. The call comes, the family gathers, and within a day or two someone at the hospital asks a question that nobody had thought about: who is the authorised decision-maker for this person?
Where the person has already made an appointment, the answer is straightforward.
An Appointment of Enduring Guardian (AEG) deals with the medical scenario above. A person makes an AEG under the Guardianship Act 1987 (NSW). It appoints someone to make personal, health and lifestyle decisions. These include where the person lives and what services and supports they receive. They also include whether to consent to medical and dental treatment. The word “enduring” means it continues after the person loses capacity. This Enduring Guardian has legal authority to determine whether the person, medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care.
For financial and legal decisions, the equivalent document is an enduring power of attorney (EPOA), made under the Powers of Attorney Act 2003 (NSW), which appoints someone to make decisions associated with operating accounts, paying bills, dealing with property and managing investments.
For either document to be valid, the person making the appointment must be an adult. At the time of signing, they must understand what they are handing over, to whom, and when it takes effect. So, the natural question becomes what happens when a person has not made any appointments and they no longer have capacity. Who can make decisions for this person?
Most people assume the answer is obvious. The husband or wife decides. If there is no spouse, the eldest child decides, or the sibling who lives closest. Otherwise, it is whoever the admission form names as next of kin.
However, in New South Wales, there is no single person who automatically inherits another adult’s decision-making power. What the law provides instead is a patchwork – the answer depends entirely on what kind of decision needs to be made.
Medical and dental treatment: the person responsible
In the absence of an AEG, the law does nominate a substitute decision-maker with respect to medical and dental treatment.
Section 33A of the Guardianship Act 1987 (NSW) creates a role called the “person responsible”. Where a patient aged 16 or over cannot understand the general nature and effect of proposed treatment, or cannot indicate whether they agree to it, the treating practitioner must seek consent from that person instead. The Act sets out a hierarchy, and it is worked through in order:
- an appointed guardian or enduring guardian whose authority extends to consenting to medical and dental treatment;
- if there is none, a spouse, de facto spouse or partner who has a close and continuing relationship with the patient;
- if there is none, an unpaid carer who provides or arranges in-home support (the carer payment does not count as payment for this purpose);
- if there is none, a close friend or relative who has frequent contact with the patient and a personal interest in their welfare.
You only move down the list for a reason. If the person at the top declines the role in writing, or a medical practitioner or other qualified person certifies in writing that they cannot carry it out, the next person steps up.
The authority also has limits. A person responsible cannot consent to special treatment. Special treatment covers sterilisation, termination of pregnancy, vasectomy, tubal occlusion and aversive treatments. It also covers procedures that a substantial number of specialists do not yet support (s 33(1)). Only the Guardianship Division of the NSW Civil and Administrative Tribunal can consent to special treatment. It must be satisfied the treatment is necessary to save the patient’s life or prevent serious damage to their health (s 45(2)). Nor can a person responsible override an objection. Their consent has no effect where the practitioner knows, or ought reasonably to know, that the patient objects (s 46(2)(a)). The objection may be current, or one the patient expressed in similar circumstances in the past (s 33(3)).
Section 46(4) creates a narrow exception for a patient with minimal understanding. It applies where the patient’s distress would be tolerable and transitory. Beyond that exception, only the Tribunal can consent over an objection. Only the Tribunal can also appoint a guardian with express authority to override it (s 46A). Section 37 runs across all of this. Under s 37, a practitioner can give urgent treatment without anyone’s consent. The practitioner must consider the treatment necessary to save life or prevent serious damage to health. Section 37 also covers treatment to prevent or relieve significant pain or distress, except special treatment.
Everything else in daily life: no default at all
The person responsible role is confined to medical and dental treatment. It says nothing about where someone lives, which services they receive, who may visit them, or whether they can be moved from home into residential aged care. There is no statutory substitute decision-maker for any of that.
In practice, families make these decisions all the time without formal authority, and the law accommodates it. NCAT will not make a guardianship order where informal arrangements are already working in the person’s interests. The difficulty arises when the informality runs out: a residential facility wants someone with legal authority to sign an entry agreement, a service provider refuses to act on a relative’s say-so, or the family members themselves cannot agree. At that point the only source of authority is a guardianship order.
Anyone with a genuine concern for the person’s welfare can apply, if the Tribunal accepts that concern. Applicants can include a spouse, an adult child, a friend, a treating hospital or the Public Guardian. NCAT must be satisfied of four matters. First, the person is 16 or over and resident in New South Wales. Second, the person has a disability. Third, because of that disability, they are partly or wholly incapable of managing themselves. Fourth, the person needs a guardian.
If the Tribunal makes an order, it specifies which decisions the guardian can make. It appoints either a private guardian or the Public Guardian. A private guardian is usually a relative or friend. The Tribunal generally makes initial orders for up to a year. In some circumstances, it can make orders for up to three years. The Tribunal holds a review hearing before the order expires.
Money and property: nobody steps in automatically
This is where the gap bites hardest, and where the assumption that a spouse can simply take over does the most damage.
No family member acquires authority over another adult’s finances by virtue of the relationship. A husband cannot sell a house in his wife’s name just because she can no longer act herself. Nor can he redraw on her loan, deal with her superannuation or operate an account in her sole name. A joint account may keep working, depending on its set-up. That depends on the account’s terms, not on any legal authority over the other person’s share. Without an enduring power of attorney, the only way anyone obtains that authority is by order.
NCAT’s Guardianship Division can make a financial management order once it is satisfied of three matters. First, the person cannot manage their own financial affairs. Second, someone else needs to manage those affairs. Third, an order is in the person’s best interests. The order either appoints a private financial manager or commits the estate to the NSW Trustee and Guardian. A private manager is typically a relative or friend. The NSW Trustee issues directions to a private manager in an estate management plan.
The manager must obtain approval to go beyond those directions and must lodge accounts each year. The manager receives no payment for the work. Unlike a guardianship order, a financial management order has no end date. It continues indefinitely unless the order itself provides for a review. Where the Tribunal needs more information before deciding, it can make an interim order. An interim order cannot run longer than six months.
Two other avenues exist. The Mental Health Review Tribunal can make a financial management order for an inpatient of a mental health facility. That order can continue after the person’s discharge. The Supreme Court of New South Wales can also declare a person incapable of managing their affairs. The Court can then order management of their estate under s 41 of the NSW Trustee and Guardian Act 2009. Applicants generally take this route where the estate is substantial or complex, or the incapacity itself is in dispute.
What the person said earlier still matters
Losing capacity does not erase decisions made before it. New South Wales has no statute governing advance care directives, and the Guardianship Act does not mention them by name. It recognises them only indirectly: a patient is taken to object to treatment if they previously indicated in similar circumstances that they did not want it and have not since indicated otherwise (s 33(3)(b)), and a person responsible’s consent has no effect where the patient objects (s 46(2)(a)). As McDougall J put it in Hunter and New England Area Health Service v A [2009] NSWSC 761 at [39], “to some extent and for some purposes, the Guardianship Act may give recognition to advance care directives”. The NSW Law Reform Commission recommended express statutory recognition in 2018, and that recommendation has not been enacted.
The force of a directive is therefore a common law question, and the same case is the leading statement of the principles. Summarising them at [40], his Honour said:
If an advance care directive is made by a capable adult, and is clear and unambiguous, and extends to the situation at hand, it must be respected. It would be a battery to administer medical treatment to the person of a kind prohibited by the advance care directive.
In practical terms, a valid directive takes the decision out of everyone else’s hands. The Act treats the refusal as an objection (s 33(3)(b)). Once the practitioner knows of it, a person responsible’s consent has no effect (s 46(2)(a)). Urgency makes no difference either, because the principle of necessity does not cover treatment against the patient’s known wishes (at [34]). The one open question is s 46A. It lets the Tribunal authorise a guardian to override an objection to major or minor treatment. Where genuine and reasonable doubt exists about a directive’s validity or reach, the hospital should promptly apply to the court. The hospital may continue treatment until the court decides (at 40 and (9)).
The practical position
The short answer to the question families ask is that being the spouse, the partner, the best friend or the next of kin may carry real weight for treatment decisions. However, for personal, lifestyle, legal and financial decisions, formal authority comes from a court or tribunal.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
Article Written by Hayden Nelson, Solicitor
