There are four categories of people who can make decisions for someone who has lost capacity. First, there are enduring attorneys appointed under an Enduring Power of Attorney made by a person while they still have capacity. Second, there are guardians appointed by the ACT Civil and Administrative Tribunal in circumstances where a person has not made a valid Enduring Power of Attorney. Third, there are health attorneys who are appointed by a senior treating doctor if substitute medical consent is required in an emergency situation where an enduring attorney has not been appointed and there is no time to make an application for guardianship and, finally, if none of the former are available, the Public Advocate of the ACT.

Why do I need an Enduring Power of Attorney?

To ensure that you have empowered someone to make decisions for you if you lose capacity, due to accident or illness, or a short or long period of time, we strongly recommend that everybody over the age of eighteen complete an Enduring Power of Attorney. This enables you to choose the person(s) that you trust and to direct or limit their decision making to ensure that they make the right decisions for you.

When completing an Enduring Power of Attorney, a person is able to authorise their chosen attorney(s) to make decisions on their behalf in relation to:

  • Property and financial matters- including buying, selling and maintaining property and managing debts and investments;
  • Personal care matters- including living arrangements, food, clothing, holidays and daily services; and
  • Health care matters- including medical and dental treatments

Changes to Enduring Power of Attorney legislation

On 1 September 2016 significant amendments to the Enduring Power of Attorney legislation came into effect which gave enduring attorneys the power to make decisions in relation to a fourth category of decisions:

  • Medical research matters.

Previously, attorneys did not have this power and could only consent to medical and treatments (which specifically excluded medical research and experimental health care).

Medical research matters are divided into ‘low risk research’ and ‘medical research’ and strict processes must be followed by enduring attorneys when making decisions about ‘low-risk research’ and ‘medical research’. First, all research must be approved by a human research ethics committee.

Low risk medical research

Attorneys may consent to low risk research carried out for medical or health purposes provided that it poses no foreseeable harm to the person other than harm usually associated with the person’s condition and does not change the treatment appropriate for that person’s condition.

Examples of low risk medical research include research using personal information collected during routine health care, collecting information through a survey, non-intrusive examination, observing a person and research comparing the effectiveness of paracetamol and ibuprofen during routine health care.

Research that is not low risk

Medical research that is not considered ‘low risk’ includes research in relation to diagnoses, maintenance or treatment of a medical condition that the person has or has had or which the person has a significant risk of being exposed to.

Examples of medical research include experimental health care, the administration of medicine or the use of equipment or devices as part of clinical trials.

There are additional safeguards in relation to medical research that is not considered to be low risk. First, an independent doctor (not associated with the research) must be satisfied that the person will not regain decision making capacity in time to themselves consent to the research.

The attorney may then consent to the medical research if they are satisfied that the research relates to the diagnoses, maintenance or treatment of a condition that the principal has or has had or which the principal has a significant risk of being exposed to, participating in the research may result in a benefit to the principal or others with the same condition, the potential benefit outweighs the potential risk and participating in the research will not unduly interfere with the principal’s privacy.

Finally, the attorney must apply the general decision making principles, including consulting with the principal’s other carers and giving effect to the principal’s wishes insofar as they can be worked out.

Is it time to review your Enduring Power of Attorney?

These amendments do not revoke existing Enduring Powers of Attorney.

If you have a current Enduring Power of Attorney providing the power to make decisions in relation to health care matters then you are taken to have automatically provided the power to make decisions in relation to all medical research matters without restriction.

If you do not wish to be involved in medical research, you may want to make a new Enduring Power of Attorney removing your attorney’s power to make decisions in relation to medical research matters or directing them how decisions should be made (by using the new approved Enduring Power of Attorney form).