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Substitute Decision Making

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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 sections.


Appointing someone else to make decisions

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 overseas).

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 Attorney.

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 adult‟s behalf.


Medical Directives and Attorneys
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.


Interstate recognition
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 State.

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.



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