Queensland’s new Enduring Power of Attorney and Advance Health Directive forms came into effect on 30 November 2020. The changes include the option for individuals to set out their preferences to guide how their enduring attorney will make decisions for them, including health care decisions.

Whilst this might provide greater flexibility and give people who have lost decision making capacity greater influence over their health care, it also increases the complexity of this area of the law for aged care and disability care providers.

Importance of the Advance Health Directive

The Advance Health Directive is a legal document that a person can use to give binding directions about their health care decisions, medical procedures and life-sustaining treatment. The document must be completed with a doctor, and the directions set out in the document will operate even when the person no longer has capacity to make their own health care or personal decisions.

Subject to considerations about good medical practice, the law requires health care providers to follow the directions set out in an Advance Health Directive. They are not required to follow other forms or documents that contain a person’s preferences or views about their health care. Health care providers who do follow other documents when determining what care to provide may not have the protection that the law provides when adhering to an Advance Health Directive.

Other health care forms

However, it is not uncommon for clients to have completed other documents which also contain statements about their health care preferences or views. This might include a “Statement of Choices” form, “do not resuscitate” form or other advance care planning documents. While these documents can provide guidance to substitute-decision makers (such as enduring attorneys) it may not always be clear whether these documents should be relied on in the absence of a valid Advance Health Directive.

Changes to Enduring Power of Attorney

The new Enduring Power of Attorney form also contains a section in which a person can specify their views, wishes and preferences. Enduring attorneys should take these into account when making decisions on the person’s behalf. The form emphasises that this might include specific healthcare preferences, including preferences in relation to specific treatments or life-sustaining measures.

It is important to understand, however, that while the Enduring Power of Attorney document can provide guidance to an enduring attorney, it is not a substitute for an Advance Health Directive – individuals with strong views about their health care and end of life treatment should be encouraged to complete an Advance Health Directive in addition to an Enduring Power of Attorney.