Substitute Decision Making
In addition to the medical consequences arising from
acquiring a brain injury, a person with brain injury and their
family may be confronted with a variety of legal issues. Because
every person's situation is unique, and because the law is
different in each State, it is important to consult a solicitor to
obtain legal advice that relates to your particular circumstances.
The following is a general guide to the legal issues surrounding
acquired brain injury. Please note that this fact sheet is relevant
to Queensland. For accurate legal guidelines in other areas, please
contact your local Brain Injury Association.
All Australians have the right to make decisions about their
personal, financial and health-related affairs if they are over 18
years of age and are mentally able to understand the nature of, and
foresee the effect of, a particular decision. They must also be
able to do so freely and voluntarily and be able to communicate
that decision in some way.
If, as a result of a brain injury, a person has lost the capacity
to make some or all decisions for themselves, there are some
important legal considerations of which they, family members and
close friends must be aware.
Legislation, terminology and processes regarding substitute
decision making in Australia, may vary between States. Readers are
advised to consult the Brain Injury Association of their particular
State to clarify local variations. However, the general
philosophies within Australia are consistent with the following
Appointing someone else to make
Power of Attorney
A Power of Attorney is a document that appoints someone
to act as an agent on your behalf. This may be required if for some
reason you are not going to be able to act personally (e.g. being
A General Power of Attorney unfortunately has
limitations as a device for the future planning of our affairs. If
you were to incur some illness or injury that deprived you of the
capacity to manage your financial affairs, this type of Power of
Attorney is not of much assistance as it is automatically revoked
because of your incapacity to give instructions to the
An Enduring Power of Attorney continues in force after
the principal has become mentally incapable of understanding the
nature and effect of decisions about a financial matter or a
personal matter as the case may be. The appointment of an Attorney
under the Enduring Power of Attorney must be made while the
principal is still capable of understanding the nature and effect
of the document.
All States have Guardianship Tribunals with power to appoint a
guardian (for personal matters) or an administrator (for financial
matters). All have requirements about the adult having impaired
capacity and for there to be a need for decisions to be made on the
Medical Directives and
One of the greatest challenges to assisted decision making is the
question of what happens if a person loses capacity and there are
no prior arrangements about health care. All States appear to agree
on the common principles of this issue but terminology, and the
extent of directions that can be given vary significantly.
For up-to-date information relating to a particular State,
contact your local Brain Injury Association.
A Statutory Health Attorney in Queensland is someone
close to the adult who can give consent to health care, where there
is no enduring attorney or enduring guardian, or guardian appointed
by the tribunal. Formal appointment is not necessary in some
States, since their authority comes from their relationship to the
patient with impaired capacity.
An Advance Health Directive enables an adult to make
arrangements regarding the type of future health care they desire
(or do not desire) should they become incapable of making
decisions. An Advance Health Directive may also include the name of
an appointed person to assist with determining the principal's
wishes. However, an Advance Health Directive can only be made by a
person while they have the mental capacity to do so and comes into
effect only after the person has lost that capacity.
A "Ulysses Agreement" enables a person with an episodic
mental illness to give directions (including the use of restraint)
so that a trusted person or persons can arrange for psychiatric
treatment when specified symptoms or behaviour become apparent.
Where an Advance Health Directive conflicts with the type of
treatment that can be carried out under the Mental Health Act, the
terms of the Advance Health Directive must be followed as closely
as is possible.
An Enduring Power of Attorney or Enduring Guardianship document
made in another State is recognised in Queensland. This means that
if an adult with impaired capacity moves to Queensland, their
enduring attorney or enduring guardian will be able to continue to
act for them. All other States are currently considering changing
their laws to recognise the
authority of enduring attorneys or enduring guardians from another
References and further information
This fact sheet was published thanks to Shine Lawyers Brisbane.
If you would like to contact them for more information, call
their freecall number on 13 11 99 or contact Shine Lawyers.