Substitute decision makers
In this section we look at the following common substitute decision making positions:
- Enduring power of attorney – finance, property and legal decisions
- Enduring guardian – general health and lifestyle decisions
- Administrator – finance and legal decisions where there is no enduring power of attorney
- Guardian – lifestyle and health related decisions where there is no enduring guardian
- Nominee – dealings with the Commonwealth government eg. Medicare, Centrelink
Handy Hint - Did you know that if you can click the CC at the bottom righthand side while the video is playing, captions will appear. To get rid of them, click CC again.View transcript of video here
An Enduring Power of Attorney is a legal document that appoints a trusted person (referred to as ‘the attorney’) to make financial, legal and property decisions on your behalf in the event that you lose the capacity to do so yourself. You can appoint more than one enduring power of attorney.
An Enduring Power of Attorney does:
- allows the appointed person(s) to operate bank accounts
- can enable the appointed person(s) to sell your property
- can enable the appointed person(s) to vote at meetings on your behalf
- is like a general power of attorney but it remains valid (endures) after you lose legal capacity to make decisions for yourself
- can be anyone over the age of 18 years who can assist an individual with money or property. It can be a relative, friend or professional adviser. It does not have to be a lawyer or solicitor.
An Enduring Power of Attorney does not allow the appointed person(s) to:
- make a personal or medical decisions on your behalf
- make a will
- swear or affirm your affidavit
- do anything that cannot be delegated by law
An enduring guardian is a person you appoint to make decisions about your healthcare and lifestyle on your behalf, in the event that you lose capacity to make those decisions yourself.
An enduring guardian can make decisions about:
- lifestyle considerations – accommodation, domestic duties, social and recreational activities
- health care and medical treatments including medical and dental procedures
An enduring guardian cannot make decisions about:
- financial affairs – including the writing or changing of wills
- voting in an election on your behalf
- consenting to special medical treatments (e.g. new or experimental treatments) or override objections to medical treatments.
An enduring guardian must act within the principles of the Guardianship Act in the relevant state or territory – in your best interests and within the law. Your enduring guardian takes effect only if and when you lose capacity to make these decisions yourself. The legal document that authorises a person of your choice to make important personal, lifestyle and treatment decisions on your behalf is called an Enduring Power of Guardianship.
Choosing your enduring guardian
It’s an important power to give to someone so it’s good advice to discuss the appointment of your enduring guardian or guardians with family and other significant people.
Your enduring guardian must be:
- someone who understands your values and wishes
- someone you trust to understand the issues that they may have to consider and make good decisions on your behalf
- willing to accept the responsibility
- at least 18 years of age
Your enduring guardian cannot be:
- a person who provides accommodation or support services to you for daily living on a professional basis.
- a person (or a relative of a person) who provides medical services or any other services to support your daily living activities.
While you need to check details and definitions for your own State or Territory, the following rules apply in general to all appointments of an enduring guardian:
- You can appoint more than one person as your enduring guardian. You can choose how you want them to act on your behalf - jointly or separately
- You and your enduring guardian will both need to sign a form of appointment in front of an ‘eligible witness’.
- An eligible witness is usually an Australian legal practitioner, a Registrar of the Local Court, an overseas legal practitioner, or an approved officer from the State or Territory Public Trustee or Public Guardian.
- You can revoke or change any appointment you have made by completing a Revocation of Appointment of Enduring Guardian form. This must be witnessed by an eligible witness and the enduring guardian must be advised in writing that their appointment has been revoked.
- You can nominate an alternative enduring guardian in the event that an enduring guardian dies or loses capacity to make decisions.
If you have already lost the ability to make reasonable judgements about managing your estate and you don’t have an enduring power of attorney in place, the state government (the relevant Office of the Public Guardian or Public Advocate) can appoint an administrator to make financial and legal decisions on your behalf.
An administrator cannot make personal and lifestyle decisions, such as where you live or what health care you may need.
If you have already lost the capacity to make your own decisions and you have not previously appointed an enduring guardian, the state government can appoint a Guardian to make personal, lifestyle and treatment decisions in your best interests.
Your enduring guardian can be:
- A Guardian can be a family member or close friend who is able to make personal, lifestyle and medical/dental decisions on your behalf. In this case it is a Private Guardian.
- If the appointment of a Private Guardian is not possible (for example if there is a dispute within the family or suspected abuse) a Public Guardian can be appointed, who is usually a Statutory Official.
- Make financial and legal decisions on your behalf.
A nominee is a person you appoint to act on your behalf in conducting business with the Department of Human Services for services like Centrelink and Medicare.
Before a nominee can start acting on your behalf, you need to give them your permission. This can be done online or you can complete a paper form saying that you agree to authorise them. You can phone free call: 132 300 or drop into a Government service centre.
Anyone who calls Centrelink or Medicare on behalf of someone else will need to be authorised as a NOMINEE before they can make any specific enquiries. This can be done online.
There are different ways to appoint your nominee(s). You can have:
- a ‘correspondence nominee’ or a ‘payment nominee’
- both a ‘correspondence nominee’ and a ‘payment nominee’
- a different person for each role
- the same person for both roles
Appointing a nominee does not stop you from conducting your own business with the Department of Human Services. You can contact the Department of Human Services at any time to cancel this appointment.
State based laws for substitute decision makers
Each state and territory in Australia has its own laws covering substitute decision makers – with some minor variations.
All states offer advisory services as well as easy-to-read information, downloadable forms and useful tips and tools.
Here is a list of links to each of the main state and territory contacts:
Australian Capital Territory
New South Wales