Powers of Attorney Act 1998

This Act may be cited as the Powers of Attorney Act 1998.

This Act commences on a day to be fixed by proclamation.

The dictionary in schedule 3 defines particular words used in this Act.

This Act binds all persons, including the State, and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States.

An attorney is a person who is authorised to make particular decisions and do particular other things for another person (the principal).

After the commencement of this Act, principals may authorise attorneys by—

general powers of attorney, enduring powers of attorney or advance health directives; or

powers of attorney under the common law.

In addition to replacing the statutory provisions for powers of attorney and enduring powers of attorney, this Act introduces advance health directives and statutory health attorneys.

An advance health directive is a document containing directions for a principal’s future health care and special health care and may authorise an attorney to do particular things for the principal in relation to health care.

Note—

Advance health directives are dealt with in chapter 3.

A statutory health attorney is the person authorised by this Act to do particular things for a principal in particular circumstances in relation to health care.

Note—

See section 62 (Statutory health attorney).

Also, see the Guardianship and Administration Act 2000, section 66(5) (Adult with impaired capacity—order of priority in dealing with health matter).

Except where otherwise provided, this Act applies only to documents made, whether under this Act or otherwise, after the commencement of this Act.

This Act is to be read in conjunction with the Guardianship and Administration Act 2000 which provides a scheme by which—

the tribunal may appoint a guardian for an adult with impaired capacity for personal matters to make particular decisions and do particular other things for the adult in relation to the matters; andNote—

Personal matters do not include special personal matters or special health matters—schedule 2, section 2.

the tribunal may appoint an administrator for an adult with impaired capacity for financial matters to make particular decisions and do particular other things for the adult in relation to the matters; and

the tribunal may consent to the withholding or withdrawal of a life-sustaining measure and to particular special health care.

Note—

However, the tribunal may not consent to electroconvulsive therapy or a non-ablative neurosurgical procedure—Guardianship and Administration Act 2000, section 68(1).

The Guardianship and Administration Act 2000 also provides a scheme for health care and special health care for adults with impaired capacity for the matter concerned, including an order of priority for dealing with health care and special health care.

Note—

See the Guardianship and Administration Act 2000, sections 65 and 66.

The Guardianship and Administration Act 2000 also provides for the public advocate.

If there is an inconsistency between this Act and the Guardianship and Administration Act 2000, the Guardianship and Administration Act 2000 prevails.

This Act is to be read in conjunction with the Public Guardian Act 2014 which provides for the public guardian and the community visitor (adult) program.

The principles (the general principles) set out below must be applied by a person or other entity that performs a function or exercises a power under this Act or an enduring document— General principles

1 Presumption of capacityAn adult is presumed to have capacity for a matter.

2 Same human rights and fundamental freedoms

An adult’s inherent dignity and worth, and equal and inalienable rights, must be recognised and taken into account.

The rights of all adults to the same human rights and fundamental freedoms, regardless of a particular adult’s capacity, must be recognised and taken into account.

The principles on which an adult’s human rights and fundamental freedoms are based, and that should inform the way those rights and freedoms are taken into account, include—

respect for inherent dignity and worth, individual autonomy (including the freedom to make one’s own choices) and independence of persons; and

non-discrimination; and

full and effective participation and inclusion in society, including performing roles valued by society; and

respect for difference and acceptance of persons with impaired capacity as part of human diversity and humanity; and

equality of opportunity; and

accessibility; and

equality between all persons regardless of gender.

3 Empowering adult to exercise human rights and fundamental freedomsThe importance of the following matters must be taken into account—

empowering an adult to exercise the adult’s human rights and fundamental freedoms;

encouraging and supporting an adult—

to perform social roles valued in society; and

to live a life in the general community and to take part in activities enjoyed by the community; and

to achieve maximum physical, social, emotional and intellectual potential and to become as self-reliant as practicable;

an adult’s right to participate to the greatest extent practicable in the development of policies, programs and services for people with impaired capacity for a matter.

4 Maintenance of adult’s existing supportive relationships

The importance of maintaining an adult’s existing supportive relationships must be taken into account.

Maintaining an adult’s existing supportive relationships may, for example, involve consultation with—

the adult, to find out who are the members of the adult’s support network; and

any persons who have an existing supportive relationship with the adult; and

any members of the adult’s support network who are making decisions for the adult on an informal basis.

The role of families, carers and other significant persons in an adult’s life to support the adult to make decisions should be acknowledged and respected.

5 Maintenance of adult’s cultural and linguistic environment and values

The importance of maintaining an adult’s cultural and linguistic environment and set of values, including religious beliefs, must be taken into account.

Without limiting subsection (1), for an adult who is an Aboriginal person or a Torres Strait Islander, the importance of maintaining the adult’s Aboriginal or Torres Strait Islander cultural and linguistic environment and set of values, including Aboriginal tradition or Island custom, must be taken into account.

6 Respect for privacy

An adult’s privacy must be taken into account and respected.

An adult’s personal information, including health information, must be protected on the same basis as other people’s personal information is protected.

7 Liberty and security

An adult’s right to liberty and security on an equal basis with others must be taken into account.

An adult should not be deprived of the adult’s liberty except in accordance with the law.

8 Maximising an adult’s participation in decision-making

An adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s life must be recognised and taken into account.

An adult must be given the support and access to information necessary to enable the adult to make or participate in decisions affecting the adult’s life.

An adult must be given the support necessary to enable the adult to communicate the adult’s decisions.

To the greatest extent practicable, a person or other entity, in exercising power for a matter for an adult, must seek the adult’s views, wishes and preferences.

An adult’s views, wishes and preferences may be expressed orally, in writing or in another way, including, for example, by conduct.

An adult is not to be treated as unable to make a decision about a matter unless all practicable steps have been taken to provide the adult with the support and access to information necessary to make and communicate a decision.

9 Performance of functions and exercise of powersA person or other entity in performing a function or exercising a power under this Act in relation to an adult, or under an enduring document for an adult, must do so—

in a way that promotes and safeguards the adult’s rights, interests and opportunities; and

in the way that is least restrictive of the adult’s rights, interests and opportunities.

10 Structured decision-making

In applying general principle 9, a person or other entity in performing a function or exercising a power under this Act in relation to an adult, or under an enduring document for an adult, must adopt the approach set out in subsections (2) to (5).

First, the person or other entity must—

recognise and preserve, to the greatest extent practicable, the adult’s right to make the adult’s own decision; and

if possible, support the adult to make a decision.

Second, the person or other entity must recognise and take into account any views, wishes and preferences expressed or demonstrated by the adult.

Third, if the adult’s views, wishes and preferences can not be determined, the person or other entity must use the principle of substituted judgement so that if, from the adult’s views, wishes and preferences, expressed or demonstrated when the adult had capacity, it is reasonably practicable to work out what the adult’s views, wishes and preferences would be, the person or other entity must recognise and take into account what the person or other entity considers the adult’s views, wishes and preferences would be.

Fourth, once the person or other entity has recognised and taken into account the matters mentioned in subsections (2) to (4), the person or other entity may perform the function or exercise the power.

The principles (the health care principles) set out below must be applied by a person or other entity that performs a function or exercises a power under this Act or an enduring document for a health matter— Health care principles

1 Application of general principlesA person or other entity that performs a function or exercises a power under this Act, or an enduring document, for a health matter in relation to an adult, must also apply the general principles.

2 Same human rights and fundamental freedomsIn applying general principle 2 to a health matter—

the principle of non-discrimination requires that all adults be offered appropriate health care, including preventative care, without regard to a particular adult’s capacity; and

any consent to, or refusal of, health care for an adult must take into account the principles of respect for inherent dignity and worth, individual autonomy (including the freedom to make one’s own choices) and independence of persons.

3 Performance of functions and exercise of powersIn applying general principles 9 and 10 to a health matter, a person or other entity, in performing a function or exercising a power under this Act in relation to an adult, or under an enduring document for an adult, must take into account—

information given by the adult’s health provider; and

if the adult has a medical condition—

the nature of the adult’s medical condition; and

the adult’s prognosis; and

if particular health care is proposed, any alternative health care that is available; and

the nature and degree of any significant risks associated with the proposed health care or any alternative health care; and

whether the proposed health care can be postponed because a better health care option may become available within a reasonable time or the adult is likely to become capable of making the adult’s own decision about the health care; and

the consequences for the adult if the proposed health care is not carried out; and

a consideration of the benefits versus the burdens of the proposed health care; and

the effect of the proposed health care on the adult’s dignity and autonomy.

4 Substituted judgementFor applying general principle 10(4) to a health matter, the views and wishes of an adult expressed when the adult had capacity may also be expressed—

in an advance health directive; or

by a consent to, or refusal of, health care given at a time when the adult had capacity to make decisions about the health care.

This chapter does not apply to enduring powers of attorney.

Except where otherwise provided, this chapter applies to all other powers of attorney made, whether under this Act or otherwise, after the commencement of this Act.

By a general power of attorney made under this Act, a person (principal) may—

authorise 1 or more other persons (attorneys) to do for the principal anything (other than exercise power for a personal matter) that the principal can lawfully do by an attorney; andNote—

Only an attorney under an enduring power of attorney may exercise power for a personal matter for a principal.

provide terms or information about exercising the power.