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ELECTRONIC VERSION

POWERS OF ATTORNEY BILL 1997

LEGISLATION BULLETIN NO 12/97

ANITA SWEET

QUEENSLAND PARLIAMENTARY LIBRARYPublications and Resources Section

BRISBANEOctober 1997

ISSN 1325-1341ISBN 0 7242 7369 7

© Queensland Parliamentary Library, 1997

Copyright protects this publication. Except for purposes permitted by the CopyrightAct 1968, reproduction by whatever means is prohibited, other than by Members ofthe Queensland Parliament in the course of their official duties, without the priorwritten permission of the Parliamentary Librarian, Queensland Parliamentary Library.

Inquiries should be addressed to: Director, Publications & Resources, QueenslandParliamentary Library, Parliament House, George Street, Brisbane.Director: Ms Mary Seefried. (Tel: 3406 7116)

Information about Research Publications can be found on the Internet at:http://www.parliament.qld.gov.au/library/research/index.html

CONTENTS

1. INTRODUCTION ........................................................................................... 1

2. POWERS OF ATTORNEY- CHOOSING A DECISION MAKER ............. 3

2.1 WHAT IS A POWER OF ATTORNEY- THE COMMON LAW ........................... 3

2.2 ENDURING POWERS OF ATTORNEY ............................................................ 4

2.2.1 What Is An Enduring Power Of Attorney?.............................................. 4

2.2.2 Advantages............................................................................................. 5

2.3 THE LIMITATIONS OF POWERS OF ATTORNEY AS A SUBSTITUTE

DECISION MAKING DEVICE ..................................................................... 5

2.3.1 Conferring Power on an Attorney for Personal and Health Care Matters . 5

2.4 THE CURRENT LAW IN QUEENSLAND ......................................................... 6

2.4.1 The Property Law Act 1974 ................................................................... 6

2.4.2 The Land Title Act 1994......................................................................... 8

2.5 THE LAW IN OTHER AUSTRALIAN JURISDICTIONS ...................................... 8

2.5.1 The Australian Capital Territory ............................................................. 9

3. DECISION MAKING FOR HEALTH CARE AND MEDICALTREATMENT.......................................................................................... 11

3.1 THE NEED FOR CONSENT .......................................................................... 11

3.1.1 The right to refuse ................................................................................ 11

3.2 WHERE A PERSON IS UNABLE TO CONSENT............................................. 12

3.2.1 The Laws In Queensland Governing Consent Procedures...................... 12

3.2.2 Statutory Lists of Decision Makers ....................................................... 13

3.2.3 Appointing An Agent Under An Enduring Power Of Attorney To MakeHealth Care Decisions .......................................................................... 13

3.2.4 Advance Health Directives/Living Wills ................................................ 13

3.3 THE LAW IN OTHER STATES .................................................................... 17

3.3.1 Australian Capital Territory .................................................................. 17

3.3.2 South Australia..................................................................................... 18

3.3.3 Victoria ................................................................................................ 20

3.3.4 Tasmania .............................................................................................. 23

4. DECISION MAKING FOR PEOPLE WITH A DISABILITY.................. 24

4.1 THE CURRENT LAW IN QUEENSLAND ...................................................... 25

4.1.1 Intellectually Disabled Citizens Act 1995 .............................................. 25

4.1.2 Mental Health Act 1985........................................................................ 26

4.1.3 Public Trustee Act 1978........................................................................ 27

5. THE QUEENSLAND LAW REFORM COMMISSION’S REVIEW OFASSISTED AND SUBSTITUTED DECISION MAKING...................... 27

5.1 DEFICIENCIES IN THE EXISTING LEGISLATIVE STRUCTURE..................... 27

5.1.1 Principles .............................................................................................. 28

5.1.2 Complexity ........................................................................................... 28

5.1.3 Limited Choice of Decision Maker........................................................ 28

5.1.4 Decision-making Powers....................................................................... 28

5.1.5 Unsuitability of Existing Procedures...................................................... 29

5.1.6 Administrative Inefficiency.................................................................... 29

5.2 THE LAW REFORM COMMISSION’S PROPOSALS FOR A NEWSYSTEM................................................................................................ 29

6. THE QUEENSLAND POWERS OF ATTORNEY BILL 1997 .................. 30

6.1 PROGRESS OF THE BILL ............................................................................ 30

6.1.1 The Draft Bill June 1997....................................................................... 30

6.1.2 The Powers Of Attorney Bill October 1997........................................... 31

6.2 ENDURING POWERS OF ATTORNEY........................................................... 31

6.2.1 QLRC’s Recommendations................................................................... 31

6.2.2 Powers of Attorney Bill 1997................................................................ 34

6.3 GENERAL POWERS OF ATTORNEY AND ENDURING DOCUMENTS............. 35

6.3.1 General Powers of Attorney................................................................. 35

6.3.2 Enduring Powers of Attorney................................................................ 36

6.3.3 Advance Directives ............................................................................... 37

6.3.4 Making an Enduring Document............................................................. 40

6.4 STATUTORILY AUTHORISED HEALTH CARE DECISION-MAKERS ............. 43

6.4.1 QLRC’s Recommendations................................................................... 43

6.4.2 Powers of Attorney Bill 1997................................................................ 44

6.5 LEGISLATIVE PRINCIPLES ......................................................................... 45

6.5.1 QLRC’S Recommendations .................................................................. 45

6.6 PROVISIONS ABOUT HEALTH MATTERS.................................................... 46

6.7 PROVISIONS WHICH PROTECT THE INTERESTS OF THE PRINCIPAL ........ 47

6.7.1 Financial Matters .................................................................................. 47

6.7.2 Compensation....................................................................................... 47

6.7.3 Health Matters ...................................................................................... 47

6.8 PROTECTION AND RELIEF FROM LIABILITY ............................................ 48

6.8.1 Financial matters................................................................................... 48

6.8.2 Health matters ...................................................................................... 48

6.8.3 Urgent Treatment Needed .................................................................... 49

6.9 THE SUPREME COURT’S JURISDICTION .................................................... 49

6.10 THE ADULT GUARDIAN ........................................................................... 50

6.10.1 QLRC’s Recommendations................................................................. 50

6.10.2 Powers of Attorney Bill 1997 ............................................................. 51

6.11 AMENDMENTS TO THE INTELLECTUALLY DISABLED

CITIZENS ACT 1985................................................................................ 52

BIBLIOGRAPHY ............................................................................................. 54

APPENDIX A POWERS OF ATTORNEY ACT 1956 (ACT) SCHEDULE PART C POWER TO CONSENT TO MEDICAL TREATMENTAND MEDICAL DONATION

APPENDIX B DRAFT ASSISTED AND SUBSTITUTED DECISIONMAKING BILL 1996 (QLD) SCHEDULE 1 DIVISION 4 FINANCIAL DECISIONS

APPENDIX C TRUSTS ACT 1973 SECTION 21 AUTHORISEDINVESTMENTS

APPENDIX D REPORT FINDINGS END OF LIFE DECISION MAKING

APPENDIX E POWERS OF ATTORNEY BILL 1997 SCHEDULE 1,PARTS 1 & 2 GENERAL PRINCIPLES & HEALTH CAREPRINCIPLE

Powers of Attorney Bill 1997 Page 1

1. INTRODUCTION

Under the law in Queensland people who are able to make decisions for themselves,but who for some reason will not be able to conduct their own affairs for a certainperiod, can appoint an agent to act on their behalf. The instrument by which theyappoint the agent is called a power of attorney. These instruments become invalidif a person loses the capacity to make his or her own decisions. However, the lawhas developed another type of power of attorney, called the enduring power ofattorney, which will continue to be effective even if a person loses his or herdecision-making capacity. The limitation of these devices as a means of planning forthe future is that they seem to be limited in their application to financial andproperty matters. People cannot appoint an agent to make personal and health caredecisions for them.

If a person is not capable of making decisions, there are various pieces of legislationthat enable a public officer to conduct the person’s affairs on his or her behalf. It ispossible for someone who is not a public officer to be appointed to conduct theiraffairs but this is not usual. Family and friends of a person who is unable to handlehis or her own affairs have no authority under the law to act on the person’s behalf.They cannot make decisions about the person’s property or about legal or medicalmatters.

Medical treatment cannot be administered without the consent of the person to betreated. This poses problems in circumstances where a person cannot, for whateverreason, give the necessary consent. If a public officer has been appointed to handlea person’s affairs, this person will provide the necessary consent.

The Queensland Law Reform Commission has conducted a comprehensive reviewof the law in relation to substitute decision-making for people with a decision-making disability.1 On the basis of the Commission’s recommendations, theBorbidge Government has proposed a legislation scheme to be introduced in twophases to address the perceived deficiencies in the existing law. The first phaseinvolves the introduction of legislation that will enable people to appoint decisionmakers to make decisions regarding financial and personal matters. General andenduring powers of attorney are brought within this scheme. The legislation is alsointended to resolve the current difficulties regarding the giving of consent to medical

1 Queensland Law Reform Commission, Assisted and Substituted Decisions: Decision-making

for People who need Assistance because of Mental or Intellectual Disability: A NewApproach, Discussion Paper No 38, July 1992; Queensland Law Reform Commission,Assisted and Substituted Decisions, Draft Report, February 1995; Queensland Law ReformCommission, Assisted and Substituted Decisions, Report No 49 (QLRC R49), Vols 1, 2 (DraftLegislation) and 3 (Summary of Recommendations), June 1996.

Powers of Attorney Bill 1997

treatment in circumstances where a person is unable to give consent. Under thelegislation people will be able to make directions in advance refusing certain types oftreatment. In early June 1997 the Government released a draft Powers of AttorneyBill for public consultation. The Bill was amended in response to submissionsreceived. On 8 October 1997 the Attorney General the Hon Denver Beanlandintroduced the Powers of Attorney Bill 1997 into the Legislative Assembly. In hisSecond Reading Speech the Attorney General the Hon Denver Beanland stated that:

The Powers of Attorney Bill introduces concepts not previously part of the law inQueensland and places these in a comprehensive format unique within Australia.

... The Bill creates a legislative regime for-

• general powers of attorney for financial matters;

• enduring powers of attorney for financial matters and personal/health carematters;

• the creation of statutory health attorneys;

• making of advance health directives; and

• legislative principles to guide attorneys and others when making decisions forpeople with a decision making disability.

The Bill establishes the Office of Adult Guardian which will be an independentstatutory position accountable to parliament and responsible for the protection ofpeople with a decision making disability from personal or financial exploitation,which unfortunately has become all too prevalent in the community.2

This Legislation Bulletin discusses the existing laws regarding substitute decisionmaking in Queensland and compares this with the legislation in some otherAustralian jurisdictions. The provisions of the Queensland Bill are outlined in thecontext of the recommendations of the Queensland Law Reform Commission.

2 Powers of Attorney Bill 1997 (Qld), Second Reading Speech, Hon D E Beanland MLA,

Queensland Parliamentary Debates, 8 October 1997, pp 3684 -3690, p 3685.


2. POWERS OF ATTORNEY- CHOOSING A DECISION MAKER

2.1 WHAT IS A POWER OF ATTORNEY- THE COMMON LAW

A Power of Attorney is a formal instrument by which one person appoints anotherto act as his or her agent. The power of attorney authorises the attorney to makedecisions which have legal consequences for the principal. The person who grantsthe power is called the donor (ie the principal). The person who is authorised toact on behalf of the donor is called the donee or attorney (ie the agent). Theattorney does not have to possess any legal or other professional qualifications. Thepower of attorney authorises the attorney to do on behalf of the donor anything thatcan be lawfully done by an agent. There are statutory provisions regarding powersof attorney in all Australian states.3

A power of attorney may be general in its scope or it may apply for only a limitedtime period (eg 3 months) or to a particular transaction (such as the sale of ahouse). An attorney appointed to look after a donor’s business would be able to dothings such as sign cheques, withdraw money and buy and sell shares and property.

For a power of attorney to be valid, at the time of granting the power, the donormust be able to understand the general nature and effect of the authority that isbeing given to the attorney. There is often a question in relation to the validity of ageneral power of attorney as to whether the donor was competent to execute thepower in the first place.

A power of attorney will normally take effect from the time that it is created.However, the grantor of the power may specify that it does not take effect untilsome time in the future. Once it comes into effect the attorney will be able toexercise his or her authority under the power until the power is revoked.

Attorneys have fiduciary obligations when acting under a power of attorney. Theseobligations require them to act for the benefit of the principal and not to abuse theirpower for their own ends.4

A power will be revoked by any of the following occurrences:

• formal revocation by the donor;

• the death of the donor;

• if the power is limited by time, the elapse of the nominated time period;

• the donor marries;

3 See Halsbury’s Laws of Australia, Vol 1, AGENCY, para [15-45].4 Reckitt v Barnett Pembroke and Slater [1929] AC 176; Powell v Thompson [1991] NZLR 597

at p 605.


• the donor becomes bankrupt; or

• the donor loses the mental capacity to understand the nature and effect ofthe power.

Because these events will bring a general power of attorney to an end, it is bestsuited to situations where the donor needs someone to handle their affairs for alimited period of time, rather than indefinitely.

Traditionally, powers of attorney have been granted in a business or financialcontext. However, at common law the only limitation imposed is that an attorneycan not be authorised to do any act that a statute requires the donor to dopersonally or which requires the donor’s own skills or discretion.

2.2 ENDURING POWERS OF ATTORNEY

2.2.1 What Is An Enduring Power Of Attorney?

An attorney can only do what the donor can personally do. This means that if adonor becomes mentally incapacitated, the Power of Attorney is revoked. This hasserious implications. At a time when a person most needs this type of assistance, heor she will not be able to rely upon an agent to act on his or her behalf. Where aperson suffers some sort of brain damage or dementia any power of attorney will berevoked. It will no longer be lawful for the attorney to act on the person’s behalf.This deficiency has led to changes in the law to enable attorneys to continue to actas agents after a donor has become mentally incompetent. In all Australian statesprovision has been made for enduring powers of attorney which continue in forceeven after the maker of the power becomes mentally incapable of handling his or heraffairs.5 The creation of enduring powers of attorney resulted from a recognition ofthe merit of enabling people to plan for the future management of their financialaffairs.

5 Property Law Act 1974 (Qld) ss 175A-175C; Powers of Attorney Act 1956 (ACT) ss 12-17;

Medical Treatment Act 1994 (ACT); Powers of Attorney Act 1980 (NT) ss 13-15, 17;Conveyancing Act 1919 (NSW) s 163F(2); Powers of Attorney and Agency Act 1984 (SA) ss6-11; Guardianship Administration Act 1993 Part 3 Div 3; Powers of Attorney Act 1934 (Tas)s 11A; Instruments Act 1958 (Vic) ss 114-118; Guardianship and Administration Act 1990(WA) Pt 9.


2.2.2 Advantages

An enduring power of attorney has the following advantages:

• it is simple and convenient;

• it avoids the need for intervention in personal affairs by official government-run organisations;

• it enables a person to select a person who is familiar with their affairs andwho they trust to manage their affairs when they are not able to;

• it avoids the need for a determination as to whether a person can beclassified legally incapable;

• it legitimises a widespread practice. 6

2.3 THE LIMITATIONS OF POWERS OF ATTORNEY AS A SUBSTITUTE

DECISION MAKING DEVICE

The development of the enduring power of attorney has been a significant andpositive development because it provides a simple and effective way in which aperson can provide for future decision-making in the event that their decision-making capacity should become impaired. However, it does not provide a solutionfor all decision making problems. A person must have the capacity to make a powerof attorney in the first place. Many people do not have this capacity. Many peoplewho have the capacity will never think to make such a power either because they areapathetic or ignorant of its benefits. Any power conferred under a power ofattorney can be abused. A person may be coerced into making such a power andpersuaded to appoint an unsuitable or untrustworthy attorney by those with selfishmotives.

2.3.1 Conferring Power on an Attorney for Personal and Health CareMatters

There has been considerable confusion about whether an attorney can be authorisedto make decisions concerning all of the principal’s affairs. There has been anecdotalevidence that many attorneys believe they have this power, and act accordingly.The position at law is unclear. Except in jurisdictions where legislation hasspecifically provided for the extension of the scope of powers of attorney, their useappears to have been limited to financial and property matters.

6 Creyke, ‘Enduring Powers of Attorney: Cinderella Story of the 80s’, Western Australian Law

Review, Vol 21, 1991, pp 122-148, p 124.


When considered as a planning device for “... possible future loss of decision-making capacity, enduring powers of attorney have a potentially much wider fieldof operation.”7 If the scope of application of enduring powers of attorney could beexpanded to include personal and health (guardianship) matters they could be ofassistance to a much wider sector of the community.

Robin Creyke has stated that the reasons for specifically giving attorneysguardianship powers include:

• To give attorneys authority they assume they already possess

• To resolve the difficulty of distinguishing between business and personalaffairs.8

2.4 THE CURRENT LAW IN QUEENSLAND

In Queensland the creation and operation of powers of attorney, both general andenduring, are now partly controlled by legislation. Legislative provisions regardingpowers of attorney are to be found in the Property Law Act 1974 and the Land TitleAct 1994. The provision for powers of attorney in these Acts reflects their originsin the commercial/business context. Whether they can be used for personal orhealth care matters has never been tested. The Queensland Law ReformCommission believes that under the existing legislation:

… it is unlikely that an enduring power of attorney could be used to authorisehealth care decisions on behalf of a person who no longer has sufficient decision-making capacity to decide such matters.9

2.4.1 The Property Law Act 1974

Under the Property Law Act 1974 a donor may appoint more than one person to actas his or her attorney. If it is in the approved form, the power of attorney authorisesthe attorney to do anything that the donor can lawfully employ an attorney to do.An instrument creating a power of attorney must be signed and sealed by, or bydirection and in the presence of, the donor of the power (s 169 (1)). A power ofattorney can be revoked by another instrument in the approved form (s 170(2)).Once the power of attorney is revoked an attorney who acts knowing that thepower has been revoked does so unlawfully (s 170(3)).

7 QLRC R49, p 86.8 Creyke, ‘Enduring Powers of Attorney: Cinderella Story of the 80s’, p 142.9 QLRC R49, Vol 1, p 323.


A power of attorney is not required to be registered but it may be registered(s 171(1)). If a donor gives a power of attorney with the intent that the power beused to purchase or sell land, it will be necessary for the power of attorney to beregistered as no dealing with land will have any force or validity unless the power isregistered (s 171(2)).10

Enduring Powers of Attorney

The Property Law Act also makes provision for enduring powers of attorney.These provisions were incorporated into the Act in 1990. To be an enduring powerof attorney the instrument purporting to create it must be:

• in the approved form;

• executed by a witness who is either a Justice of the Peace or a Solicitor orBarrister, who is someone other than the donee, and who certifies that thedonor appeared to understand the nature and effect of the power;

• signed by the donee who is 18 years of age or more (s 175A).

The power of attorney will not be revoked by any subsequent mental incapacity ofthe donor (s 175C).

It is the duty of attorneys to exercise their powers “honestly and with reasonablediligence to protect the interests of the donor” (s 175H(1)). An attorney who failsto do so is liable to a maximum penalty of 200 units (ie $15,000). He or she mayalso be required to compensate the donee for any loss suffered as a result of afailure to act honestly and diligently (s 175H(2)). There are several provisions thatsafeguard the donor against a dishonest or unethical attorney. The donor:

• is required to keep accurate records of all dealings and transactions madeunder the power (s 175D)

• is required to keep the donee’s property separate from his or her ownproperty. An exception is made where the property and money are ownedjointly by the donor and donee (s 175E)

• must not enter into a transaction if there is a possibility of a conflict ofinterest between his or her interests and that of the donee (s 175E)

• is required, if requested, to produce to the public trustee records andaccounts kept of dealings and transactions made under the power (s 175F).

10 Powers of attorney are recorded in a register kept by the Registrar of Titles: see Property Law

Act 1974, s 167A and Duncan and Vann, Property Law and Practice, Law Book Company,paras [9.130] and [9.140].


The public trustee may apply to the court for an order:

• that the donee provide copies of all records and accounts of transactions anddealings; or

• that the records and accounts be audited; or

• that the power be revoked, or the terms of the power varied or the attorneyremoved and another appointed (s 175G).

2.4.2 The Land Title Act 1994

The Land Title Act 1994 provides that registration of a power of attorney inaccordance with the Act gives the attorney authority to deal with any interest in landthat may be dealt with by the grantor of the power of attorney (s 132(1)). Thisprovision does not apply to an enduring power of attorney. The Act also providesthat if an act is permitted or required to be done by a person or in relation to aperson under the Act, and the person is intellectually disabled or incapable ofmanaging their affairs, the act may be done by the person who has been maderesponsible by law for the management and care of that person’s interests(s 137(1)).

2.5 THE LAW IN OTHER AUSTRALIAN JURISDICTIONS

The Australian Capital Territory is the only jurisdiction which has conferredcomplete decision-making power upon attorneys appointed under enduring powersof attorney. Guardianship legislation in New South Wales, South Australia andTasmania makes provision for enduring guardians. These guardians are authorisedto act in relation to personal matters.11

In 1984 the then Federal Attorney-General Gareth Evans initiated the CommunityLaw Reform Program for the Australian Capital Territory. It was suggested to theAustralian Law Reform Commission that it should investigate the law relating tomanagement of an infirm person’s property. The Commission considered thequestion as to “whether a power of attorney could or should be used forguardianship (that is, for making day to day decisions on behalf of an incapableperson, not related to property or money)”.12 The Commission recommended that

11 Guardianship Act 1987 (NSW) s 6E (not yet in force); Guardianship and Administration Act

1993 (SA), s 25(1), 25(5); Guardianship and Administration Act 1995 (Tas), s 32(1), 32(5).12 Australian Law Reform Commission, Community Law Reform for the Australian Capital

Territory: Third Report, Enduring Powers of Attorney (ALRC 47), Australian GovernmentPublishing Service, Canberra, 1988, p 4.


enduring powers of attorney be used for decision-making on matters of a personalnature.13

2.5.1 The Australian Capital Territory

Under the Power of Attorney Act 1956 a power of attorney confers on the attorneypower to do anything that the donor may lawfully do by an attorney (s 3AC).

A person may appoint two or more attorneys who can act jointly or severally anddifferent attorneys to act in different circumstances (s 3AB).

The power will continue in force until the donor dies or the power of attorney isotherwise revoked (s 5). Anything done by the attorney prior to notification of thedeath or revocation will be legally effectual (s 5(2)). The attorney may complete astatutory declaration that can be relied upon by a third party who deals with theattorney in good faith. The statutory declaration would state that at the time of thedealing the attorney had not received notice of the death of the donor or therevocation of the power of attorney (s 5(3)).

A person may make an irrevocable power of attorney for valuable consideration(s 6).14 An irrevocable power of attorney will continue to have effect despite thedeath, mental incapacity or bankruptcy of the donor (s 6).

If an attorney executes a conveyance or deed other than a lease, it will be deemednot to have any force and validity until the instrument creating the power ofattorney is registered (s 11(1)(a)).

Enduring Powers Of Attorney

To create an enduring power of attorney, the donor must sign an instrument “in orto the effect of Form 2 of the Schedule” to the Act. This must be completed andsigned by the donor in the presence of two witnesses, neither of whom can berelated to the donor. The attorney must be 18 years of age and must sign thedocument to indicate acceptance (s 12). The acceptance form of the instrumentindicates who the attorney should approach if they want help or advice.15

13 ALRC, Enduring Powers of Attorney, pp 24-25.14 Valuable consideration is something that is given in return for something else. It does not

have to represent the true value of what is received but must be more than token or nominalvalue.

15 Powers of Attorney Act 1956 (ACT), s 12 and Schedule, Form 2.


Under an enduring power of attorney the attorney can be authorised to makedecisions in relation to the donor’s day-to-day affairs (s 13(1)).16 The attorney willonly be able to make such decisions when the donor is incapacitated (s 13(2)). If thedonor desires the attorney to have such powers, they must sign part B of theinstrument (s 13(2)).

Part B of the instrument contains a notice stating:

By signing this Part, you can authorise your attorney or attorneys to makepersonal decisions for you while you are unable to manage your affairs. Thesecould be decisions about where you will live, what food you will eat, or whetheryou will go on a holiday. In fact, you must understand that if you sign this Part,your attorney or attorneys will (subject to any limits you set) have almostcomplete control over your life while you are unable to manage your affairs.

Section 14(1) of the Act stipulates that:

In exercising powers under an enduring power of attorney while the donor isincapacitated, the donee shall act, so far as possible, as the donor would haveacted if the donor were not incapacitated.

This can be contrasted to the Queensland Property Law Act which requires theattorney to act in the “interests” of the donor. The ACT provision reflects the“substituted judgement” approach which was encouraged by the Australian LawReform Commission.

The Act requires the attorney to avoid a conflict of interest with the donor and hisor her interests; to keep the donor’s property and money separate from theattorney’s and to keep proper accounts (s 14(3)). The obligation to keep propertyand monies separate does not apply to an attorney who jointly owns the propertyand money (s 14(4)). The Public Trustee can commence an action against anattorney if the attorney breaches his or her duties as attorney (s 15(1)). The Court,on the application of the Public Trustee or someone else, can direct the attorney toproduce specified books and accounts, terminate the enduring power of attorney, ormake a declaration as to the interpretation or effect of the enduring power ofattorney. If the court terminates an enduring power of attorney, it can appoint thePublic Trustee to be guardian of the donor or manager of the donor’s property(s 17(2)).

The Act defines the capacity needed to create a power of attorney. The donor mustbe able to understand the nature and effect of the power (s 3A). A medicalcertificate as to the donor’s capacity will be evidence of that fact (s 13A). There ishowever, no test for incompetency which is the precondition for the use of thepersonal and medical decision-making power.

16 The powers conferred under this Act regarding medical treatment are discussed at 3.3.1 of this

Bulletin.


3. DECISION MAKING FOR HEALTH CARE AND MEDICALTREATMENT

3.1 THE NEED FOR CONSENT

Every person has the right to determine what happens to their own body. Anyintended touching of another person’s body is unlawful unless the other person hasconsented to that touching. If a person touches another without the person’sconsent, this can give rise to a civil action for assault or a criminal assault charge.

This principle applies to medical procedures performed upon a patient. Medicaltreatment is in fact unlawful unless done with the patient’s consent. However, it is ageneral principle of the law that consent is not required when emergency treatmentis required to save a person’s life or prevent serious harm to a person’s health. 17

The requirement for consent is intended to protect medical practitioners fromliability and to protect individuals from treatment that they consider violates theirbodily integrity.

Consent when given must be real consent. This means that the giving of consent isbased on an understanding of the proposed treatment and its likely consequences.The person must not have been induced to give consent by a misrepresentationabout the nature of the treatment.

3.1.1 The right to refuse

Although it may not be widely known, a patient can refuse medical treatment. Adoctor who treats a patient, despite their express refusal of treatment, commits atrespass upon the person of the patient and is liable to charges of battery or assault.Mr Justice McHugh of the High Court of Australia defined the law’s approach tonon-consensual contacts in Marion’s Case:

It is the central thesis of the common law doctrine of trespass to the person thatthe voluntary choices and decisions of an adult person of sound mind concerningwhat is or is not done to his or her body must be respected and accepted,irrespective of what others, including doctors, may think is in the best interests ofthat particular person.18

17 Robin Creyke, Who Can Decide? Legal Decision-Making for Others, Commonwealth

Department of Human Services and Health, Aged and Community Care Service Developmentand Evaluation Reports, No 19, AGPS, September 1995, p 269.

18 Secretary, Department of Health and Community Services v JWB and Another (1992) 106ALR 385 at pp 451-52.


Patients cannot insist on treatment that would result in their death. However,where they have no suicidal intent, it does not matter how irrational or foolish theirdecisions as to treatment may appear, doctors must accept patients’ expresspreferences for treatment.

Several Australian states have made statutory provision for the right to refusetreatment. In the Australian Capital Territory, under the Medical Treatment Act1994, a person who has attained the age of 18 and who is of sound mind can make adirection in writing, or orally, or “in any other way in which the person cancommunicate” to refuse or request the withdrawal of medical treatment for acurrent condition (s 6). In Victoria, a person can complete a Refusal of TreatmentCertificate. (The Victorian provisions are discussed in greater detail at 3.3.3.)

3.2 WHERE A PERSON IS UNABLE TO CONSENT

3.2.1 The Laws In Queensland Governing Consent Procedures

There is a widespread belief in the community that a relative of a person with adecision-making incapacity has authority to make health care decisions for thatperson.19 This is not the case.

Under the Mental Health Act 1974, a committee of the person20 has fullguardianship powers and so can make decisions about the treatment of that person.There is no limitation upon the sort of procedures that a committee can beauthorised to decide. Where a person is granted assistance under the IntellectuallyDisabled Citizens Act 1985, the Legal Friend21 may give consent to any medical,dental, surgical or other professional treatment or care (s 26(3)). (See 4.2 for amore detailed discussion of the Mental Health Act 1974 and the IntellectuallyDisabled Citizens Act 1985.)

Under the Medical Act 1939, if a patient is incapable of consenting to a surgicalprocedure because of a “mental disability”, and if a relation of the patient is notavailable, then the medical superintendent of a hospital or institution where thepatient is being treated may consent on behalf of that person (s 52).22 Under the

19 QLRC R49, Vol 1, p 332.20 Mental Health Act 1974 (Qld), Schedule 5 clause 4.21 The Legal Friend is a barrister or solicitor who is appointed to act on the behalf of a person

who is intellectually disabled.22 Although this section implies that the next of kin may give consent to medical treatment for a

patient who is incapable of consenting there is no specific legislation that allows this. In theabsence of such legislation the consent of a relative would not prevent such treatment beingconsidered an assault. QLRC R49, Vol 1, p 332.


Criminal Code a person who, in good faith and with reasonable care and skill,carries out a surgical operation for the benefit of the patient, will not be criminallyresponsible for an assault if the performance of the operation was reasonable, havingregard to the patient’s state at the time and to all the circumstances of the case (s282).

There is growing community concern about the lack of legislative authority to makedecisions about the nature and extent of future health care that people may receivewhen unable to express their wishes. The devices considered to address theseproblems include living wills, enduring powers of attorney and statutory lists ofrelatives.

3.2.2 Statutory Lists of Decision Makers

In some Australian jurisdictions legislation authorises certain people to makedecisions about the health care of another person. For example, in New SouthWales under the Guardianship Act 1987, a “person responsible for the patient”may consent to health care treatment except for those treatments designated as“special treatment” (s 36). The term “person responsible” is defined indescending order of priority. The list in descending order includes: an appointedguardian; a spouse; a carer, or close friend or relative (s 3A (1)).

3.2.3 Appointing An Agent Under An Enduring Power Of Attorney ToMake Health Care Decisions

The use of an agent to make health care decisions is advantageous in that it enablesdoctors to seek consent when it is required from a person who knows the patientand will have in mind the patient’s particular preferences for health care andtreatment. Doctors are relieved from choosing to adopt a procedure and riskingliability for battery or not acting and risking liability in negligence.23 However, theconcern about the use of powers of attorney is that there may be a conflict ofinterest between the attorney and the wishes expressed by the principal or donor.

3.2.4 Advance Health Directives/Living Wills

One of the proposed mechanisms to address the dilemmas faced by medicalpractitioners when treating people who are, for whatever reason, unable to consentto treatment is the advance health directive. These directives are commonly referredto as living wills. While these terms are often used interchangeably, it is necessary

23 Robin Creyke, ‘Privatising Guardianship - The EPA Alternative’, Adelaide Law Review,

15(1), 1993, pp 79-103, p 99.


to make a distinction between the two. A living will is a form of advance directivebut an advance directive will not necessarily be a living will. An advance directivecan include a power of attorney or a document that contains a living will and anenduring power of attorney.

A living will is:

... a document in which a person gives instructions about the kind of treatmentwhich the person wishes, or does not wish to receive, if the person becomesterminally ill and unable to make decisions or if the person falls into a state ofpersistent or permanent unconsciousness.24

It is generally understood that a living will is able to be executed by a competentadult at any time. This means that it may be made before a person is diagnosed witha specific medical condition.

The living will was first canvassed by Dr Luis Kutner in the United States in 1969.25

A number of “right to die” cases prompted calls for legislative recognition of livingwills. Living wills must be seen in the context of the relatively recent advancementsin medical technology and increasing awareness of people’s right of self-determination:

The common law of trespass to the person was an adequate guardian of patients’rights to autonomy and self-determination before the developments in medicaltechnology and medical science revolutionised modern medical practice. Theinadequacy of the common law in dealing with these developments first becameapparent in connection with patients who had become continuously comatose as aresult of traffic accidents.26

South Australia was the first Australian jurisdiction to enact legislation givingrecognition to living wills. The Natural Death Act was introduced in 1983. TheNorthern Territory followed suit in 1988.27 Its legislation was modelled closelyupon the South Australian Act.28

The aim of the South Australian Natural Death Act 1983 was to regulate theprocedures by which a terminally ill person could direct a doctor to discontinue lifesupports, thus preventing a person being kept alive by extraordinary measuresagainst their wishes. The Act was limited in its application to those suffering from a

24 QLRC R49, Vol 1, p 346.25 David Lanham and Belinda Fehlberg, ‘Living Wills and the Right to Die With Dignity’,

Melbourne University Law Review, 18(2), December 1991, pp 329-349, p 329.26 Dr Danuta Mendelson, ‘Medico-Legal Aspects of the ‘Right to Die’ Legislation in Australia’,

Melbourne University Law Review, 19(1), June 1993, pp 112-152, p 115.27 Natural Death Act 1988 (NT).28 Lanham and Fehlberg, p 330.


terminal illness. The Act authorised a person of 18 years of age or over and ofsound mind to make a direction refusing extraordinary life-prolonging measures.The Act was repealed by the Consent to Medical Treatment and Palliative Care Act1995.

Advantages of Living Wills Legislation29

People will make living wills irrespective of whether they are given legislativerecognition. Experience in other jurisdictions has shown that without legislation,uncertainty about the living will’s legal effect will prompt expensive legal actionsand give rise to much dispute between family and friends of a person incapable ofexpressing their wishes directly. To what extent the courts will give effect to thedirections made in a living will is uncertain.30 Different hospitals will adopt differentpolicies in relation to an informal living will. Legislative recognition offers:

• predictability

• recognition of individual autonomy and right to self-determination

• avoidance of undue family suffering

• avoidance of undue prolongation of life and suffering of the patient

• legal certainty for medical practitioners and hospital administrators

• greater discussion between patients and medical practitioners abouttreatment

• avoidance of decision-making in highly charged emergency conditions.

29 The discussion regarding advantages and disadvantages is drawn largely from the article by

Lanham and Fehlberg, pp 331-337.30 There have been recent indications of growing acceptance by the courts in common law

jurisdictions. See Airedale NHS Trust v Bland [1993] 1 All E R 821 at pp 836 & 840.


Disadvantages of living wills legislation

Commentators have expressed the following concerns and arguments againstlegislating for living wills:

• the law already provides a right to refuse treatment

• the circumstances in which the directive will come into effect areunforseeable

• a person making such a direction cannot take account of all factors whichmay be relevant in the future ie changed personal circumstances and changesin technology

• that such legislation exposes some people, particularly the chronically sickand elderly, to outside pressure from others to make directions they wouldnot have contemplated if left to their own devices

• that such legislation is unworkable (this is expanded on below).

For legislators, living wills are considered to have some major practical difficulties.There is difficulty in determining what the triggering event will be for the living willto be acted upon. Should it be terminal illness or incompetence alone or both? If itis to be terminal illness, there is some confusion as to what this term actually means?What steps should doctors take once the triggering event is identified? How dodoctors become aware of the existence of a living will? If a standard form of livingwill is prescribed, there is a loss of flexibility but without guidelines it may be toogeneral, too specific or too vague. If it is provided, as it should be, that it can berevoked or amended, how will it be possible to be certain that the will is still valid.Given these practical difficulties, the Western Australian Law Reform Commissioncould not recommend the introduction of legislation for living wills.31

The most emotive argument against living wills is that they are in fact a form ofsuicide. However, a person who does not wish to undergo certain treatment doesnot necessarily have a concomitant wish to die. They may in fact have a very strongwill to live but do not want a certain treatment even if failure to have such treatmentmay lead to their death.

Currently South Australia and the Northern Territory have legislation providing forliving wills. Under legislation in Victoria and the Australian Capital Territory, aperson may make a direction refusing treatment for a current condition. There is norequirement that the medical condition be a terminal or incurable one. TheVictorian legislation allows an attorney to be given authority to refuse consent tomedical treatment. In South Australia and the Australian Capital Territory an

31 Law Reform Commission of Western Australia, Report on Medical Treatment for the Dying,

Project No 84, 1991, paras 1.23, 2.12.


attorney may consent to or refuse consent for most medical treatments. Thelegislation adopted in the Australian Capital Territory, Victoria and South Australiais discussed in the following section.

3.3 THE LAW IN OTHER STATES

3.3.1 Australian Capital Territory

Direction Refusing Treatment or Requesting Withdrawal of Treatment

Under the Medical Treatment Act 1994, a person who has attained the age of 18and who is of sound mind can:

• make a direction in writing or orally or in any way they can communicate torefuse or ask for the withdrawal of medical treatment for a current condition(s 6).

• make an instrument conferring power on another person to consent to thewithholding or withdrawal of medical treatment in the event that the personwho grants the power becomes incapacitated (s 13). A person does notbecome entitled to exercise the power conferred on him or her until thegrantor is declared by a medical practitioner to be incapacitated (s 14).

Conditions Placed Upon When An Attorney Can Request Withholding OrWithdrawal Of Medical Treatment

Before an attorney can request that treatment be withheld or withdrawn they mustconsult with a medical practitioner about the grantor’s illness and alternative formsof treatment and the consequences of the grantor remaining untreated. The attorneymust believe that, had the grantor been capable of making a rational judgement andhaving considered his or her health and wellbeing, the grantor would have requestedthe withholding or withdrawal of the medical treatment (s 16).

Revocation

A direction can be revoked by the person who gave the direction clearly expressinghis or her decision to revoke the direction. They can clearly express their intentionto revoke either orally or in writing or in any other way they are able tocommunicate (s 9).

Enduring Powers of Attorney

Under the Powers of Attorney Act 1956 it is possible for a person to make anenduring power of attorney which expressly provides that the attorney may:

• give consent to medical treatment necessary for the donor’s well-being.


• give consent to the donation of body parts, blood or tissue in accordancewith the Transplantation and Anatomy Act 1978.

• • give consent to the withholding and withdrawal of medical treatment(s 13(1)(b)).

The donor conferring such power must sign the section marked Part C of theinstrument (See Appendix A).

3.3.2 South Australia

The Natural Death Act was repealed by the Consent to Medical Treatment andPalliative Care Act 1995.

Living wills

The Consent to Medical Treatment and Palliative Care Act allows a person of 18 orover to make directions for their future medical treatment in circumstances wherethey may be:

1. in the terminal phases of a terminal illness, or in a vegetative state; and

2. incapable of making decisions about their medical treatment: (s 7(1)).

The direction is required to be in the prescribed form and to be witnessed by aperson who certifies that the direction was signed in his or her presence and that theperson signing appeared to understand the nature and effect of the direction(s 7(2)).

Medical Power of Attorney

A person of 18 or over may also make out a medical power of attorney (s 8(1)).The person appointed as their attorney will be authorised to make decisionsregarding medical treatment of the person who granted the power if that person isincapable of making his or her own decisions (s 8(7)(a)). The attorney will not beauthorised to refuse food or water, drugs to relieve pain or distress, or treatmentthat would enable the grantor to recover their decision making capabilities(s 8(7)(b)).

A person is not eligible to be appointed an agent if that person is involved in aprofessional or administrative capacity in the medical care or treatment of theperson granting the power (s 8(5)).

A person may appoint more than one person to be their agent but must indicate theorder of appointment so that it is clear who is to be first approached to exercise thepower. It is not possible to appoint two people to act jointly as agents (s 8(6)).


The medical agent will only be entitled to act under the medical power if:

• the agent produces a copy of the medical power; and

• the agent is not disqualified from acting under the power; and

• the agent is of full legal capacity (s 9(1)).

A medical agent will only be regarded as available to act if:

• the medical practitioner is aware of the appointment; and

• the medical agent is entitled to act; and

• it is reasonably practicable for the medical practitioner to obtain a decisionfrom the medical agent (s 9(2)).

Review by the Supreme Court

The medical decision of an agent is subject to review by the Supreme Court upon anapplication by either the responsible medical practitioner or any other person who isconsidered by the court to have a proper interest in the exercise of the powersconferred under the power of attorney. However, the court cannot review adecision to discontinue treatment where the grantor is in a terminal phase of aterminal illness and treatment would only prolong life without there being anyrealistic prospects that the person would recover (s 10).

Offences under the Act

A person commits an offence under the Act if:

• they coerce another to execute such a power of attorney (s 11(1))

• they act as an attorney knowing that the power has been revoked (s 11(2)).

Each of these offences is punishable by imprisonment for a maximum period of 10years. In addition they will forfeit any interest that they may have had in the estateof the grantor (s 11(3)).

A medical practitioner must not administer treatment without the agent’s consent:

• if he is aware that the patient has appointed a medical agent, and of theconditions and directions contained in the medical power of attorney; and

• the agent is available to decide on the appropriateness of the treatment(s 13(3)).

Protection of Medical Practitioner from Liability

A medical practitioner will not be civilly or criminally liable for any act or omissionto act if done or made:

(a) with the consent of the patient’s representative or in accordance with anauthority conferred by the Act or some other legislation; and


(b) in good faith and without negligence; and

(c) in accordance with proper professional standards of medical practice; and

(d) in order to preserve or improve the quality of life (s 16).

A medical practitioner will not be civilly or criminally liable for administeringtreatment to relieve pain or distress if it is done with the consent of the patient’srepresentative; in good faith and without negligence; and in accordance withprofessional standards of palliative care, even if it has the effect of hastening death.The administration of such relief of pain will not be considered a cause of death(s 17(1)). This provision is considered by some commentators to be wide enough toinclude both medically assisted suicide and death.32

A medical representative is under no duty to continue life sustaining measures if theeffect is only to prolong life without any realistic likelihood of recovery (s 17(2).

Registration of medical power of attorney or direction

A medical power of attorney or direction may be registered (s 14(3)). The Registraris required to produce the power of attorney or direction for inspection by themedical practitioner for the person who granted the power or a person with aproper interest in such power of attorney or direction (s 14(5)).

Revocation

The power of attorney can be revoked by any form of representation that indicatesan intention to withdraw or terminate the power (s 8(9)).

3.3.3 Victoria

Prior to the enactment of the Medical Treatment Act 1988 the Victoriangovernment commissioned two reports from the Social Development Committee.33

In 1985 the Social Development Committee was asked to consider and make finalrecommendations “having regard to the greatly increased technological capacityto sustain life” as to:

• whether to take legislative action to establish a right to die

32 Mendelson, p 113.33 Victoria, Social Development Committee, First Report of the Social Development Committee

upon the Inquiry into Options for Dying with Dignity, 1986; Victoria, Social DevelopmentCommittee, Second and Final Report of the Social Development Committee upon the Inquiryinto Options for Dying with Dignity, 1987.


• the rights of an individual to direct that in certain circumstances her or she beallowed to die, or assisted in dying and the form which such a direction shouldtake ...

• protection for medical nursing and other professionals who allow or assist anindividual to die ....34

The Commission concluded that “right to die” legislation was inappropriate.However, it did favour legislation “… as a means of clarifying and protectingexisting common law rights … particularly … in the area of medical trespass andthe right to refuse medical treatment”.35 The Committee commented that it“… was disturbed at the extent of ignorance, misinformation and confusion onthese issues at all levels in the community.”36

The Medical Treatment Act 1988 makes provision for a person, or an agent whomthe person has appointed in accordance with the requirements of the Act, to sign arefusal of treatment certificate. However, the Act does not apply to palliative care(s 4(2)). People can validly refuse medical treatment even with the knowledge thatdoing so will ultimately result in their death.

Refusal of treatment certificate

If a person wishes to refuse treatment they must complete a refusal of treatmentcertificate. The certificate must be witnessed by a medical practitioner and anotherperson. They must be satisfied that:

• • the patient has clearly expressed or indicated that they have decided torefuse medical treatment generally or treatment of a specific nature for acurrent condition;

• the decision is voluntary and made without inducement or compulsion;and

• the person has been informed sufficiently about the nature of theircondition to enable them to make a decision to refuse treatmentgenerally or treatment of a specific kind, and appeared to understand theinformation;

• the patient is of sound mind and is 18 years of age or more (s 5(1)).

34 Victoria, Second and Final Report of the Social Development Committee upon the Inquiry

into Options for Dying with Dignity, 1987, p (xi).35 Victoria, Second and Final Report of the Social Development Committee upon the Inquiry

into Options for Dying with Dignity, 1987, p (xiv)36 Victoria, Second and Final Report of the Social Development Committee upon the Inquiry

into Options for Dying with Dignity, 1987, p (xiv).


Appointment of agent to refuse treatment

A person may appoint an agent by way of an enduring power of attorney. ThePower of Attorney must be in the prescribed form and be witnessed by two peopleone of whom must be authorised to take and receive statutory declarations(s 5A(2)).

If an agent is to refuse treatment they must sign a refusal of treatment certificate(s 5B(3)). The required form for the refusal of treatment certificate is set out inSchedule 3. It must be completed by the agent, the medical practitioner and anotherwitness.

Circumstances in which agent may refuse treatment

The agent may refuse treatment of a general or specific kind if:

• the medical practitioner in charge of the patient’s treatment has explainedthe nature of the patient’s condition sufficiently that, had the patient beenable to, the patient would have been able to make a decision whether or notto refuse; and

• the agent understands the information (s 5B (1)).

However the agent can only refuse treatment if:

• the treatment would cause unreasonable distress to the patient; and

• there are reasonable grounds for believing that, had the patient been able toconsider their situation, he or she would have considered the treatmentunwarranted (s 5B(2)).

A medical practitioner is not required by the legislation to witness the agent’ssignature. This means that a doctor may require the agent to indicate how they havereached the conclusion that the patient would have considered the treatmentunwarranted.37

Application to the Guardianship and Administration Board

Provision exists for a concerned individual to apply to the Victorian Guardianshipand Administration Board for a revocation of the agent’s authority (s 5C). TheBoard may suspend or revoke the enduring power of attorney if it is not in the bestinterests of the patient.38 What is “in the best interests” of the patient is not definedbut the provision would allow the court to suspend the power of attorney in

37 David Lanham and Susan Woodford, ‘Refusal by agents of life-sustaining medical treatment’,

Melbourne University Law Review, 18(3), June 1992, pp 659-675, p 672.38 See Mendelson, p 139 for a discussion of how the court might interpret “in the best interest”

of the patient.


circumstances where it was felt that the attorney was motivated by self-interest,malice or was being coerced by other interested persons.39 If a power of attorney isrevoked, then any refusal of treatment certificate signed under its authority willcease to have any effect.

A person who obtains a patient’s signature by deception, fraud, mis-statement orundue influence will forfeit any interest under a will or other instrument or anyinterest that they may have been entitled to had the person died intestate (s 5F).

Refusal of medical treatment certificate to be placed on patient’s record

The Board of the hospital or home at which the patient is being treated must takereasonable steps to ensure that the refusal of medical treatment certificate is:

• placed on the patient’s record; and

• given to the chief executive officer of the hospital or home;

• given to the Guardianship and Administrative Board within 7 days after thecertificate is completed (s 5E(1)).

A Current Condition

It must be noted that a refusal of treatment certificate can only be signed in relationto a current condition. This can be contrasted to the position under the SouthAustralian legislation where a patient can give instructions in advance indicating thatif they ever become terminally ill certain treatments are not to be administered.

Revocation

A refusal of treatment certificate can be cancelled by the person who gave thecertificate clearly expressing a decision to cancel the certificate (s 7(1)).

3.3.4 Tasmania

The Tasmanian Medical Treatment and Natural Death Bill 1997 makes provision fora person to complete a refusal of treatment certificate. The provisions replicatethose of the Victorian Medical Treatment Act but there is no provision made for theappointment of an attorney to refuse medical treatment.

39 Lanham and Woodford, pp 672-673.


4. DECISION MAKING FOR PEOPLE WITH A DISABILITY

There are many people who, by reason of severe illness, brain injury, developmentaldisability or old age, cannot effectively manage their day-to-day activities or theirproperty and finances. There are many people who are not fully aware of their needfor and the nature of medical, dental or professional treatment. These peoplecannot give the requisite consent for medical procedures nor can their next of kin orother caretakers.

Guardianship

There is legislation in all Australian states to provide for formal guardianship andmanagement of property for those who are mentally incompetent. Queensland’sequivalent of a public guardianship agency is the Intellectually Disabled CitizensCouncil and the Legal Friend. All jurisdictions have undertaken reform of the lawgoverning these formal procedures in recent times. In most cases, these reformssaw guardianship jurisdiction taken from the Courts and given to quasi-judicialtribunals.

As a result of these legislative reforms, guardianship schemes have become moreaccessible and cheaper. However, the demand for guardianship services hasincreased dramatically.40 The increasing workload is an important impetus for thedevelopment of alternative guardianship and management mechanisms.

In Queensland there are two means by which a guardian may be appointed:

• by a formal application to the Supreme Court

• by application to the Intellectually Disabled Citizens Council (a less formalapplication)

An application to the Council may only be made in relation to a person who haswhat can be described as an intellectual disability. The predominant reason that theLegal Friend is appointed is for decision making in relation to health care.41 Thepower of the Legal Friend to make decisions for intellectually disabled people hasangered many who feel that the decision making should lie with those who are mostclosely concerned with that person’s care.42

40 Creyke, ‘Privatising Guardianship - The EPA Alternative’, p 85.41 Creyke, Who Can Decide? Legal Decision-Making for Others, p 52.42 Matthew Thrower, ‘Collaborative Decision Making for Intellectually Disabled Adults’,

Proctor, May 1996, p 18.


4.1 THE CURRENT LAW IN QUEENSLAND

4.1.1 Intellectually Disabled Citizens Act 1995

The Intellectually Disabled Citizens Act 1995 provides for intellectually disabledcitizens to receive special assistance under the Act. The body created by the Act toprovide this assistance is the Intellectually Disabled Citizens Council. The Councilwill assist people who have an intellectual disability since birth or who have had anillness, injury or a deteriorating condition which has impaired their intellectualcapacity.

Application for special assistance

To obtain special assistance for an intellectually disabled person under the Act, anapplication must be made to the Intellectually Disabled Citizens Council. Anapplication is justified where it appears that the intellectually disabled citizen is soseverely limited in functional competence that he or she has or is likely to havefunctional, personal or social needs that are unsatisfied and will remain so unlessthey obtain assistance (s 27).

The Legal Friend

If the Council grants the application it may approve of assistance and support inrelation to health care decisions being given by a relative or by the Legal Friend to aperson who has legal capacity to make such decisions with such support andassistance (s 31A(4)(a)). However, if the person does not have such capacity evenwith such support, the Council may authorise the Legal Friend or a legal practitionerto act on the citizen’s behalf (s 31A(4)(b)). The Legal Friend is a barrister orsolicitor who is appointed to be a legal friend for the purposes of the Act (s 4).

Consent given by the Legal Friend

Where a Legal Friend is appointed to act on behalf of an assisted citizen, the LegalFriend may, on behalf of the citizen, give consent to any medical, dental or surgicalor other professional treatment or care (s 6(3)). If a committee has been appointedfor that person under the Mental Health Act the Legal Friend cannot give suchconsent unless he or she first obtains the consent of the committee (s 26(4)).

Before giving such consent, the Legal Friend is required to:

• take reasonable steps to consult with relatives who provide ongoing care toan assisted citizen

• inform himself or herself as fully as possible on the matter(s) requiringconsent and the options available


• ensure that the assisted citizen is informed as fully as possible on thematter(s) and as to the options available.

In fulfilling the requirement to become fully informed, the Legal Friend must consultwith the persons providing ongoing care, appropriate professionals, relatives orother persons who have a proper interest in the well-being of the assisted person (s26(5)(b)).

Statistics

In Queensland the number of applications for special assistance (including assistancefrom the Legal Friend) received by the Intellectually Disabled Citizens Council inthe 1990-91 year was 609. In the 1995-96 year the number of applications receivedwas 1855. This represents an increase of 7% or 121 consents from the previousyear.43

In the 1995/96 year the Legal Friend issued almost 200 consents for medical orallied health and other professional care each month. A total of 2380 consents formedical or allied health and other professional care was provided by the LegalFriend and delegates. This was an increase of 8% over the previous year’s figure.The largest group requiring such consent was that composed of those sufferingdementia, representing 47% of people requiring assistance. People with adevelopmental disability represented 33% of all consents, 17% of consents wererequired by those suffering acute illnesses,44 and 3% for people with acquired braininjury.

4.1.2 Mental Health Act 1985

The Mental Health Act 1985 provides for decisions to be made on behalf of aperson who is described as a “patient”. A person can become a patient in one oftwo ways:

• by notification to the Public Trustee that the person is mentally ill andincapable of managing their own property and affairs

• by order of the Supreme Court (schedule 5).

Authority Of Public Trustee For Affairs Of A “Patient”

Notification to the Public Trustee may be given by designated medical practitionersor the superintendent of a prison or a hospital administrator who has charge of aninstitution in which that person is being detained or treated. Notification and

43 Intellectually Disabled Citizens Council of Queensland, 11th Annual Report 1995-96, p 17.44 Intellectually Disabled Citizens Council of Queensland, 11th Annual Report 1995-96, p 28.


designation of the person as a patient will result in the Public Trustee being givenauthority for the management of that person’s property and affairs (Schedule 5 s 1).

Appointment of a Committee

The Public Trustee or another person can apply to the Supreme Court for theappointment of a committee of the person’s estate. Where the court is satisfied thatthe person is mentally ill and incapable of managing their estate, the Court canappoint a committee of the person’s estate and/or a committee of the person. Thecommittee can be either the Public Trustee or another person (Schedule 5 s 4). It isunusual for the Court not to appoint the Public Trustee as the Committee.45

4.1.3 Public Trustee Act 1978

Under the Public Trustee Act 1978, the Public Trustee or a person with a properinterest may apply to the court for a protection order allowing the Public Trustee tomanage the property or money of a person who is unable to manage their ownaffairs or who is liable to be unduly influenced by others in the management ordisposition of their money or property (s 65).

5. THE QUEENSLAND LAW REFORM COMMISSION’SREVIEW OF ASSISTED AND SUBSTITUTED DECISIONMAKING

5.1 DEFICIENCIES IN THE EXISTING LEGISLATIVE STRUCTURE

In 1990 the Queensland Attorney General requested the Queensland Law ReformCommission to review the laws in Queensland with regard to people withdisabilities. Since the terms of reference were so broad the Law ReformCommission chose to focus on the laws regarding decision-making by and for adultswith a decision-making incapacity. In conducting its review the Commissionexamined provisions of the Mental Health Act 1974, the Public Trustee Act 1978(Qld), the Intellectually Disabled Citizens Act 1985 (Qld) and those parts of theProperty Law Act 1974 (Qld) relating to powers of attorney.46

In July 1992 the Commission published a Discussion Paper entitled Assisted andSubstituted Decisions: A New Approach which put forward a range of options forreform. The Commission received over 50 submissions in response to the

45 QLRC R49, Vol 1, p 7.46 QLRC R49, Vol 1, p 1.


Discussion Paper. In February 1995 the Commission published a Draft Reportcontaining its preliminary recommendations. The Draft Report contained draftlegislation for implementing the Commission’s proposals. Following a program ofconsultations the Commission received some 110 submissions in response to itsDraft.

The Commission released its final report in June of 1996. This report was alsoaccompanied by draft legislation.

In its final report released in 1996 the Law Reform Commission identified somedeficiencies in the existing Queensland legislation.47 The deficiencies aresummarised below:

5.1.1 Principles

The legislation makes insufficient provision for substitute decision-makers to berequired to respect the rights of people with a decision-making disability.

5.1.2 Complexity

Because there is some overlap in the three pieces of Queensland legislation thatcurrently allow for the appointment of substitute decision-makers,48 “… people withthe same kind of decision-making disability may be treated differently according towhich law is used” resulting in “ Uncertainty, inconsistency and injustice”.49

5.1.3 Limited Choice of Decision Maker

Power to make decisions for a person with a decision-making disability who lacksthe capacity to make those decisions on his or her own behalf tends to beconcentrated in the hands of a public officer such as the Public Trustee or the LegalFriend.

5.1.4 Decision-making Powers

There is little flexibility in the powers which may be given to a decision-maker.

47 QLRC R49, Vol 1, pp 24-27.48 The Intellectually Disabled Citizens Act 1995, the Mental Health Act 1985 and the Public

Trustee Act 1978.49 QLRC R49, Vol 1, p 25.


5.1.5 Unsuitability of Existing Procedures

Many of the existing procedures require an application to be made to the SupremeCourt. The expense of making a Supreme Court application is prohibitive for mostpeople with a decision-making disability and their friends and relatives. Theadversarial process is intimidating and alienating.

5.1.6 Administrative Inefficiency

The administration of the existing legislation by different departments is “inefficientand wasteful”.50

5.2 THE LAW REFORM COMMISSION’S PROPOSALS FOR ANEW SYSTEM

In its report the Commission put forward its proposal for a new system. TheCommission indicated that its recommendations for new laws regarding people witha decision-making disability should be premised on the basis that:

... outside intervention should be used only when it is necessary to promote andprotect the rights and welfare of a person who lacks the capacity to make his orher own decisions.51

The Commission recommended the establishment of a specialist tribunal to handledecision-making problems that cannot be resolved by less formal means and twostatutory authorities:

... one to act as a systematic advocate on behalf of people with a decision-makingdisability and one to act as decision-maker of last resort in relation to personalwelfare, lifestyle and health care matters.52

The Commission indicated that implementation of its recommendations would havethe following benefits:

• Greater recognition of family or other private decision-makers will mean fewerapplications for appointment of a decision-maker and reduced demand fordecision-making services provided by the government.

• The establishment of a tribunal to deal with those cases where there is a need foroutside intervention will result in far more effective use of resources than theexisting mechanisms.

50 QLRC R 49, Vol 1, p 27.51 QLRC R49, Vol 1, Preface.52 QLRC R49, Vol 1, Preface.


• An accessible tribunal will protect disadvantaged and vulnerable members of ourcommunity.

• A comprehensive legislative scheme will ensure that the decision-making needs ofall people with a decision-making disability are met, regardless of the cause oftheir disability.53

6. THE QUEENSLAND POWERS OF ATTORNEY BILL 1997

6.1 PROGRESS OF THE BILL

6.1.1 The Draft Bill June 1997

In June of 1997 the Attorney-General the Honourable Denver Beanland released theGovernment’s proposed Powers of Attorney Bill 1997 for public consultation. Theconsultation draft was accompanied by an explanation of the Bill and the proposedforms for Powers of Attorney and Advance Directives. In a Media Release issuedat the time of the proposal’s distribution, the Attorney-General stressed that:

‘This is not euthanasia legislation. It is simply giving people the ability to givedirections for their future health care. This consultation draft is designed toallow people to plan the future management of their affairs if they should lose themental capacity to make their own decisions. It also includes safeguards againstexploitation.’

... the proposed legislation will allow a person to make an advance health caredirective while they still have the capacity to do so, and the ability to understandthe gravity of doing so. Those directives may include decisions as to the type andextent of medical treatment they require, or do not require, if at some future timethey should suffer a particular condition and be unable to give directions.Everyone has the right to refuse medical treatment.

‘... Any changes to the law regarding powers-of-attorney can have massiveimplications for ordinary Queenslanders. For that reason its is vital that newlegislation sets out the bounds of authority and power and underlines clearprinciples with which attorneys must comply when making decisions.’54

The draft Bill was the first stage of implementing reforms in relation to those whohave a decision-making incapacity. The Explanation accompanying theConsultation draft explain the two-phased approach to implementing reforms:

53 QLRC, R49, Vol 1, Preface.54 Hon D Beanland MLA, Attorney General and Minister for Justice, ‘Advance Health

Directives’, Ministerial Media Statement, 5 June 1997 in Ministerial Media Statements for theperiod 1 June to 7 June 1997, pp 15-16.


Phase 1. To maximum extent possible, to reform those areas of the law which willenable people to appoint a person(s) and to give directions in relation to futurepersonal matters and financial matters.

Phase 2. Create an accessible, affordable and simplified method for theappointment of a person or persons to make substitute decisions in cases wherethe person with a decision-making disability has not made their ownarrangements or where it is otherwise necessary to do so.55

6.1.2 The Powers Of Attorney Bill October 1997

Sections of the draft Bill were amended as a result of submissions made in responseto the consultation process. In October 1997, the final Powers of Attorney Bill waspresented to Parliament.

The Bill conforms with the recommendations of the Queensland Law ReformCommission in relation to Enduring Powers of Attorney, Advance Health Directivesand Statutory Health Attorneys and the establishment of the office of the AdultGuardian. However, the Bill departs from the Commission’s recommendations intwo areas ie living wills and powers of attorneys regarding investment.56 Majorprovisions of the Bill and the recommendations of the Law Reform Commission willbe discussed in the next section of this Legislation Bulletin.

6.2 ENDURING POWERS OF ATTORNEY

6.2.1 QLRC’s Recommendations

In its Discussion Paper released in 1992, the Law Reform Commission identifieddeficiencies in relation to the Queensland law regarding powers of attorney. Theseincluded:

• a lack of a test of mental incapacity of a person executing a power ofattorney

• a lack of flexibility leading to uncertainty as to the ability of the donor tolimit the power of an attorney; to defer operation of the power or to conferdifferent responsibilities upon different attorneys

• uncertainty as to the scope of the authority able to be conferred by a powerof attorney

• a need for greater protection of the donor

55 Department of Justice, Explanation of the Powers of Attorney Bill 1997, p 4.56 Letter by the Attorney General accompanying the draft proposed legislation dated 2 June

1997.


• a need for interstate recognition of powers of attorney

• a lack of guidance as to the relationship between an enduring power ofattorney and the appointment of a committee under the Mental Health Actor the making of a protection order under the Public Trustee Act.57

Scope Of Power

In its Final Report, the Commission recommended that the legislation provide that aperson who makes an enduring power of attorney may use it to authorise a chosendecision-maker to make personal decisions, health care decisions, financial decisionsand decisions about legal matters.58

Financial Decisions

The Commission recommended that the proposed legislation stipulate the type ofdecisions that would be designated “financial decisions” and be able to beconferred upon a decision-maker. (Appendix B of this Bulletin contains thedefinition of “financial decision” included in the draft Assisted and SubstitutedDecision Making Bill 1996.) These should be expressed as widely as possible.59

However, the Commission was of the view that the power of an attorney in relationto investment, purchase of property and use of property as security should belimited.

The Commission expressed its view that, because of the highly speculative nature ofthe real estate market, there should be a limitation on the attorney’s power topurchase real estate. However, it added that:

The Commission wishes to provide some measure of protection for a person witha decision-making disability without unreasonably fettering the ability of afinancial decision-maker to engage in transactions which are for the person’sbenefit.60

In the draft legislation, the Commission gave power to an attorney to invest inauthorised investments.61 An “authorised investment” was defined as aninvestment authorised by the Trust Accounts Act 197362 other than a sale orpurchase of real property. This would have meant that an attorney could not invest

57 QLRC, Discussion Paper, pp 91-95.58 QLRC R49, Vol 1, p 91.59 QLRC, R49, Vol 1, p 69.60 QLRC R49, Vol 1, p 72.61 QLRC, Vol 2: Draft Legislation, Schedule 1 Clause 16(j).62 The word “Accounts” was inserted in error. The reference should have been to the Trusts Act

1973.


in real estate without obtaining the consent of the proposed Assisted andSubstituted Decision Tribunal (the Tribunal).

Two submissions commented that this power was too restrictive. In its final reportthe Commission indicated that, although it acknowledged the need of financialmanagers to be able to perform their role without undue restriction, it also neededto ensure that the legislation contained protective guidelines for both the managerand the person whose finances are being managed.63

Health Care Decisions

In its Draft Report the Commission recommended:

… that the donor of an enduring power of attorney for health care be able tochoose whether to authorise his or her attorney to make decisions about allaspects of his or her health care, or whether to specify certain forms of healthcare about which the attorney is not authorised to decide or about which theattorney must decide in accordance with the directions of the donor. TheCommission further recommends that the tribunal be given power, ifcircumstances (including advances in medical science) have changed to such anextent that the power is no longer appropriate, to override the instructions givenby the donor in an enduring power of attorney for health care.64

In relation to health care decisions, the Commission was of the view that an attorneyshould not be permitted to make decisions regarding the withholding orwithdrawing of health-sustaining measures. The Commission recognised that thisinvolved “… much wider ethical and moral dilemmas and require[d] extensivepublic consultation and debate”.65 The Commission was of the view that, becauseof the invasive nature of some procedures, these should only be undertaken incompliance with special consent procedures. The procedures warranting suchspecial consent included removal of tissue for donation, sterilisation and terminationof a pregnancy.66

The Commission assessed submissions that suggested the formal requirements forrevocation of an enduring power for health matters were too onerous. Onesubmission argued that, as people become progressively more ill, they may not beable to write and that it should be sufficient for them to say that they have changedtheir mind. However, the Commission in making its final recommendation, statedthat it was “... concerned that the method of revocation should not create problemsof proof and consequent uncertainty nor the opportunity for well-intentioned but

63 QLRC, R49, Vol 1, p 70.64 QLRC, Draft Report, p 137.65 QLRC R49, Vol 1, p 54.66 QLRC R49,Vol 1, p 68.


unwanted intervention.”67 The Commission recommended that written rather thanoral revocation should be required but that it would not be necessary for therevocation to be in a particular form.68

6.2.2 Powers of Attorney Bill 1997

The Bill makes provision for three types of document that will enable a person toappoint another to act on their behalf. These are:

• general powers of attorney

• enduring powers of attorney

• advance health directives.

Enduring powers of attorney and advance health directives are referred to asenduring documents (clause 28). The Bill stipulates the matters that can be dealtwith under these empowering documents. The Bill distinguishes between financial,personal and health matters. Clause 76 provides that if an enduring document doesnot specify the powers which the attorney is to exercise, the attorney is to be takento have the maximum power that could be given to an attorney under an enduringdocument.

Under the Bill, General Powers of Attorney and Enduring Powers of Attorney arebrought within the one scheme. All the existing provisions in Part 9 of the PropertyLaw Act are included in the Bill.

Financial Matters

The matters that are considered “financial matters” are set out in Schedule 2,Part 1 to the Bill. Clause 83 allows an attorney for financial matters under anenduring power of attorney to invest in authorised investments. If, when the powerbecomes exercisable, the principal has investments that are not authorisedinvestments the attorney may continue those investments and may take up rights toissues of new shares or options for new shares to which the principal becomesentitled by the existing shareholding (cl 83(2)(b)). “Authorised investments” arethose authorised or permitted by the Trusts Act 1973 for the investment of trustfunds (clause 83(3)). This gives an attorney much wider investment powers thanwas proposed by the Commission. (See discussion at 6.2.1)

Appendix C to this Bulletin contains the section of the Trusts Act 1973 pertainingto authorised investments.

67 QLRC R49, Vol 1, p 328.68 QLRC R49, Vol 1, p 329.


Personal Matters

Schedule 2 Part 2, clause 2 defines a “personal matter” as a matter (other than aspecial personal matter or special health matter) relating to the principal’s care(including health care) or welfare. Some examples of personal matters are: where aperson lives, a person’s daily diet and dress, where the person works and what kindof work they do. A “special personal matter” as it relates to the person who givesthe power of attorney (the principal) includes:

• making or revoking a will;

• making or revoking an empowering document;

• exercising a right to vote in an election or referendum;

• consenting to adopting a child under 18; and

• consenting to marriage (schedule 2 clause 3).

Health Matters

Schedule 2 clause 4 defines a “health matter” as any matter relating to health care(other than special health care) of the principal. “Health care” is also defined(schedule 2 clause 5). To avoid any doubt clause 5(2) states that the Act does notauthorise:

• the carrying out of health care for the purpose of causing the death of aperson; or

• assistance given to enable a person to commit suicide.

A “special health matter” is a matter relating to special health care of theprincipal. “Special health care” includes the following types of care:

• removal of tissue for donation to someone else;

• sterilisation;

• termination of pregnancy;

• participation in research or experimental health care;

• psychiatric health care as prescribed under the regulations;

• withholding or withdrawal of life-sustaining measures; and

• other health care as prescribed in the regulations (schedule 2 clause 7).

6.3 GENERAL POWERS OF ATTORNEY AND ENDURING DOCUMENTS

6.3.1 General Powers of Attorney

By a general power of attorney a person may authorise one or more persons to dofor the principal anything (other than exercise power for a personal matter) that the


principal can lawfully do by an attorney (clause 8). The principal may specify a timeand circumstances under which the power is exercisable (clause 9(1)). If thepower of attorney does not specify a time or circumstances or occasion on whichthe power is exercisable, then it will become exercisable at the time the power ismade.

Clause 10 provides for a power of attorney given as security. Such a power ofattorney is given by a principal as security for a proprietary interest of the attorneyor the performance of an obligation owed to the attorney and it states that it isirrevocable.

Making A Power Of Attorney

A general power of attorney must be in the approved form (clause 11). Theinstrument which creates the power of attorney must be signed by the principal or atthe direction and in the presence of the principal (cl 12(2)). A principal may appointthe same attorney to deal with different matters, or several attorneys to deal withdifferent matters, or several attorneys to act jointly or by themselves in dealing witha particular matter (cl 13(1)(a)). The principal may appoint an attorney by name ora specified officer or holder of a specified office (cl 13(1)(b) ).

Revocation

Clause 15 allows a power of attorney to be revoked in ways other than thosestipulated in the legislation. A principal is required to take reasonable steps toadvise all attorneys of the revocation and to deregister the power of attorney if itwas registered (Clause 16).

Clause 20 provides that a power of attorney is revoked according to its terms. Thismeans that if a power of attorney is to operate for a specified time period it will berevoked at the end of this period or if it is to operate for a specific purpose it will berevoked when this purpose has been achieved.

Clause 18 provides that if the principal loses their decision making capacities thepower of attorney is revoked. However, if a person becomes incapable ofcommunicating their decisions about their financial, property or legal affairs, a courtmay order that all or part of the power of attorney remains in full force and effect.The court has to be satisfied that confirmation of the authority conferred by thepower of attorney is for the benefit of the principal (cl 18(2)).

6.3.2 Enduring Powers of Attorney

Clause 32(1) provides that, by an enduring power of attorney, a principal mayauthorise one or more persons to do anything in relation to his or her financial orpersonal matters that the principal could lawfully do by an attorney. A principal


cannot appoint an attorney under an enduring power of attorney to act in relation toa “special personal matter” or “special health matter”. An enduring power ofattorney will not be revoked if the principal loses his or her decision makingcapacity (clause 32(2)).

The exclusion of attorneys from being given power to make decisions regarding thewithholding or withdrawal of life-sustaining measures is consistent with theCommission’s recommendations. The Explanation to the consultation draft statesthat “... empowering an attorney to do so could result in unintended and unforseenconsequences which would not be acceptable to the wider community”.69

Approval for special health matters must be obtained from a court (clause109(1)(b).70

Ability Of The Donor To Defer Operation Of The Power Of Attorney

The principal may stipulate terms or provide information about exercising thepower. In relation to a financial power of attorney the principal may specify a timewhen or occasion on which the power becomes exercisable (clause 33(1) ). If notime is specified, it becomes exercisable when the power of attorney is made (clause33(2) ). However, if a principal loses his or her capacity prior to a specified time,circumstance or occasion the power will be exercisable during any and every timethe principal suffers this impaired capacity (clause 33(3)).

Personal Matters

An attorney may only act in relation to personal matters when the principal hasimpaired capacity for the matter. A person dealing with an attorney who is acting inrelation to personal matters is permitted to request that the attorney provide someevidence, for example, a medical certificate which establishes that the principal’scapacity is impaired (clause 33(5)).

Clause 34 allows a power of attorney made in another state and in accordance withthat jurisdiction’s laws to be recognised in Queensland.

6.3.3 Advance Directives

QLRC’s Recommendations

The Commission recognised the value of advance directives in enabling people toinfluence and control their future health care in the event that they should lose their

69 Department of Justice, Explanation of the Powers of Attorney Bill 1997 [Draft Bill], p 14.70 Department of Justice, Explanation of the Powers of Attorney Bill 1997 [Draft Bill], p 8.


decision-making capacity. An advance directive could be particularly valuable forpeople who suffer episodic mental illness. A directive could be used to identify thesymptoms of the person’s mental illness, the actions they wish to be taken if theydisplay these symptoms and the people they wish to be involved in carrying out theirinstructions. These type of directives were developed in North America and areknown as Ulysses agreements. The Commission was careful to emphasise that theadvance directives it proposed would not include those commonly known as “livingwills” which would provide for “end of life” decision-making. 71

The Commission in its Draft Report recommended that legislation be introduced toenable people to make advance directives about their future health care. Almost allsubmissions received by the Commission in response to the Draft Report regardedthe Commission’s recommendations favourably with the exception of some thatdiscussed “end of life” decisions that the Commission explicitly stated were notintended to be provided for under the proposed legislative scheme. The onedissenting submission was advanced by an advocacy group for people with adisability. In the Final Report this group expressed the following concerns:

• the mechanism focuses on wishes expressed at an earlier time and, as it is unableto take into account changes in attitude and values occurring after the directive issigned, the apparent enhancement of individual autonomy is illusory;

• even if made after counselling or advice from a medical practitioner, an advancedirective will not be based on information which takes account of all relevantcurrent circumstances;

• there is no provision for obtaining a second opinion or for an independent thirdperson to stand between the patient and the health care provider;

• were advanced directives to be given legislative sanction, it would be a relativelyeasy task for a Parliament at a later date to extend their coverage to include “endof life” decisions.72

In its Final Report the Commission recommended that the maker of an advancedirective be able to appoint another person to make health care decisions if theinstructions in the directive are inadequate or unclear. This was intended to preventan advance directive failing. The Commission indicated that the person nominatedas a decision-maker under an advance directive would not have an authority to actunless the instruction given in the advance directive could not be implemented, andthe directive would otherwise fail.73

The Commission recommended that an advance directive should not be required tobe made out in compliance with a form set out in the legislation. It was felt that this

71 QLRC R49, Vol 1, p 347.72 Submission No 64, cited in QLRC R49, Vol 1, p 350.73 QLRC, R49, Vol 1, p352.


would lead to inflexibility and advance forms being invalidated on technicalgrounds.74 The Commission recommended that an advance health care directiveshould be revoked in the same way as an enduring power of attorney for healthcare.75

Powers of Attorney Bill

Clause 35 allows a person to give directions as to their future health care. Theymay give directions about health matters and special health matters (cl 35(1)(a)).They may also provide information about their directions (cl 35(1)(b)). They mayappoint one or more persons to exercise power over health matters in the event thatthe advance directive proves inadequate (cl 35(1)(c)). However, the advance healthdirective has priority over a general or specific power for health matters given to anattorney (cl 35(3)). An attorney’s power under an advance health directive is onlyexercisable when the principal has impaired decision-making capacity (cl 36(2)).

Under an advance health directive the principal may give directions-

• consenting to particular future health care when necessary and despite anyobjection the principal may make at that time (cl 35(2)(a));

• requiring that certain life-sustaining health measures be withheld orwithdrawn (cl 35(2)(b)); and

• authorising an attorney to have them physically restrained, moved ormanaged when necessary and despite any objection the principal may maketo these procedures (cl 35(2)(c)).

Relationship Between Advance Health Directives And The Mental Health Act

Clause 37 provides that, where a person who has made an advance directive as tohis or her health care is to be detained under the Mental Health Act 1974, aninterpretation of that Act that is consistent with this Act and the direction is to bepreferred. However, where there is any inconsistency the Mental Health Act is toprevail (cl 37(2)).

Clause 39 allows an advance directive or equivalent made in another state inaccordance with that jurisdiction’s laws to be recognised in Queensland.

Living Wills

The provision allowing for an advance health directive requiring that certain life-sustaining health measures be withheld or withdrawn is not in conformity with theCommission’s recommendations. The reason for this departure as explained in the

74 QLRC R49, Vol 1, p 355-356.75 QLRC R 49, Vol 1, p 355.


Explanation of the consultation draft, is that: “It was considered that it would beappropriate to give power to a person to make such future directions ...” TheExplanation goes on:

The Health Ageing Research Unit, Department of Social and PreventativeMedicine, University of Queensland has been conducting research for the pastthree years on Queensland Community and health practitioner attitudes,perspectives and preferred options in relation to end-of-life decisions.

There is a significant body of evidence to support the view that people want to beable to specify the type of treatment they would require if in the future they wereto suffer from a terminal, irreversible or unacceptable condition. Conditionsregarded as unacceptable included permanent loss of ability to think orcommunicate with others or being permanently on a respirator.

In these cases there are strong indications that people want options to be able todirect the level of care required such as palliative care (being kept comfortableand pain free) only, but that measures such as cardiopulmonary resuscitation(CPR), mechanical ventilation, artificial feeding or antibiotics not be given.76

Appendix D to this Bulletin contains a summary of the findings of the HealthAgeing Research Unit of the Department of Social and Preventative Medicineregarding end-of-life decision making.77

6.3.4 Making an Enduring Document

Capacity To Make A Power Of Attorney

The Commission recognised the need for a test of capacity and for the test to bestrict enough to protect those who might be vulnerable to pressure or manipulationby others and yet not so strict as to limit the value of an enduring power of attorneyas a planning device for future incapacity.78

Clause 40 provides that a person can only make a power of attorney if he or she“understands the nature and effect of the power of attorney”. The Bill stipulatescertain matters that a person must understand for it to be said that they have therequisite understanding of the nature and effect of the power of attorney; namely:

76 Department of Justice, Explanation of the Powers of Attorney Bill 1997 [Draft Bill], p 15.77 The Health Ageing Research Unit findings are included in two reports: Healthy Ageing,

Healthy Dying: Community and Health Professional Perspectives on End-of-Life Decision-Making February 1996; End-of-Life Decision-Making Perspectives of General Practitionersand Patients, July 1996. A third report, Patient Self-Determination in Terminal Care: Phase2. Designing “Useful” Advance Directives and Proxies, May 1997, includes draft directivesdesigned by the Research Unit.

78 QLRC R49, Vol 1, p 96.


• that they may limit or specify the power to be given to an attorney and caninstruct them about the exercise of the power;

• when the power begins;

• that once effective, the attorney will have full power over the matter towhich the power relates, subject to any terms and information about theexercise of the power;

• that they may revoke the power at any time they are capable of doing so;

• if the power is an enduring power of attorney that it will have effect even iftheir mental capacity is impaired; and

• that if they are incapable of revoking the power they will be incapable ofoverseeing the exercise of the power (cl 40(2)).

Capacity to make an advance health directive

In order for a person to be capable of making an advance health directive they mustunderstand the following matters:

• the nature and likely effect of each direction in the directive;

• that it will operate only when they have impaired capacity;

• that they may revoke the directive at any time they have capacity to makedecisions regarding the matter which is the subject of the directive; and

• that if they can’t revoke a directive they will not be capable of overseeing itbeing carried out (cl 41 ).

Under the general principles a person is presumed to have capacity (Schedule 1,clause 1). In the dictionary in Schedule 3 to the Bill “capacity” is stated to mean

the person is capable of -

a) understanding the nature and effects of the decisions; and

b) communicating the decisions in some way.

Formal requirements

Clause 43 requires a power of attorney to be in the approved form. An advancedirective must be written but is not required to be in the approved form.79 Theprincipal must sign in the presence of an “eligible signer”. The witness must sign acertificate which is attached to the empowering document which states that it wassigned by the principal in the witness’s presence and that at the time the principalappeared to have the necessary capacity to make the enduring document (cl 43(4)).

79 This conforms with the recommendations of the Queensland Law Reform Commission.


An enduring document will only be effective if the person appointed as attorney hassigned the document indicating acceptance of his or her appointment (cl 43(6)).

Eligibility to be an attorney or witness

The Bill stipulates those who are eligible to be an attorney and to witnessdocuments. The requirements for eligibility are different for enduring powers ofattorney and advance health directives. A paid carer or health provider for theprincipal is not eligible to be appointed an attorney under an enduring power ofattorney or advance health care directive (clauses 29(1) and 29(2)).

Except in the case of a document revoking an advance health directive, a witnessmust be a justice of the peace, commissioner for declarations, notary public orlawyer. The following people cannot witness the empowering document:

• an attorney of the principal

• any relative of an attorney or the principal

• the person who would become the attorney under the empoweringdocument

• in the case of a document giving power for personal matters, a paid healthprovider of the principal (clause 31).

Revoking an empowering document

Clause 46 stipulates that an enduring power of attorney may be revoked in writingbut only if the attorney has the capacity that was necessary for making such apower. Clause 48 requires the written revocation to be in the approved form.However, if the power of attorney gives power for a health matter then this may berevoked without the necessity of it being in the approved form (cl 48(2)). There arethe same requirements for witnessing and certification of a revocation as for makinga power of attorney.

A revocation of an advance health directive need only be in writing (cl 47).80 If itincludes a direction about a health matter or special health matter the principal mayonly revoke it if the principal has capacity for the matter. A power of attorney isrevoked to the extent of an inconsistency by a later enduring document ie a laterpower of attorney or advance directive (cl 49(1)).

80 Compare this with the revocation requirements under the Medical Treatment Act 1994 (ACT)

s 9 referred to in para 3.3.1 of this Legislation Bulletin.


6.4 STATUTORILY AUTHORISED HEALTH CARE DECISION-MAKERS


In its Draft Report the Commission recommended that there should be a statutorypower of consent to health care treatment for people who lack the capacity to makethese decisions. The Commission acknowledged that in many instances the familyof such a person is in the best position to know how that person would want to betreated and is genuinely concerned to ensure that treatment is in that person’s bestinterests. Submissions made in response to the Commission’s Draft Report werestrongly in favour of the statutory consent mechanism, particularly as it recognisedthe role played by family members in the health care of people with decision-makingincapacities.81

A joint submission from two community organisations stated:

... Instead of being blamed, it is refreshing to see legislation which supportsfamily networks and ensures relatives and friends are consulted in the decision-making process. After all, they will be the ones most likely to be caring for aperson with a decision-making disability.82

However, some submissions were quite strongly opposed to such a mechanism,emphasising the possibility of abuse of such a statutory power.

The Legal Friend said:

The existing system protects (profoundly intellectually disabled adults) byensuring that those persons receive appropriate treatment. I am concerned thatunder an essentially automatic system of empowerment of relatives as StatutorilyAuthorised Decision Makers many such persons may refuse to provide necessarytreatment relying on the statutory authority to be such a decision-maker.83

The Commission took the view that:

... the preferable approach is to facilitate to the greatest extent possible theresponsibilities undertaken by caring family members, while providing effectivesafeguards for those people with a decision-making disability who have no familyor who have family members who act inappropriately. The Commission believesthat ease of access to the tribunal by any person who has a genuine interest in thewelfare of the person concerned, together with the protective role of the AdultGuardian and the systematic role of the Public Advocate, will provide as much

81 QLRC R49, Vol 1, p 335-336.82 QLRC R49, Vol 1, p 336.83 Submission No 76A quoted in QLRC R49, Vol 1, p 337.


security for people with a decision-making disability as would a system ofcompulsory appointment and registration.84

The Commission emphasised that the scheme would give legal recognition to apractice that is quite common while at the same time providing safeguards. Theproposed scheme would ensure that the people most concerned for a person’s well-being would not be by-passed and would be properly informed about proposedtreatments. The Commission’s recommendations differed from the statutoryconsent scheme in New South Wales (discussed briefly at para 3.2.2) in that it didnot propose a hierarchical list. The Commission stated “... there may becircumstances in which the hierarchical order would not reflect the reality of theperson’s support network or the person’s lifestyle”.85


Clause 61 bestows power upon a statutory health attorney for an adult’s healthmatter to make any decision about the health matter that the adult could do if he orshe was not incapacitated (cl 61(1)).86 The statutory attorney’s power over healthmatters is exercisable during any periods when the adult is incapacitated (cl 68 (2)).

A “statutory health attorney” will be the first person in listed order who is readilyavailable and culturally appropriate to exercise the power:

• a spouse of the adult (includes a de facto spouse) if the relationship is closeand continuing;

• a person who is 18 years of age or more who has the care of the adult but isnot a paid carer;

• a person who is 18 years of age or more and who is a close friend or relationof the adult (cl 62(1)).

These provisions resemble the “responsible person” provisions of the New SouthWales Guardianship Act 1987.

If there is more than one person who is eligible to be the statutory health attorney,and they cannot agree on who is to act or how the power is to be exercised andtheir disagreement cannot be resolved by mediation by the Adult Guardian then theAdult Guardian may exercise the power (cl 63).

A person is taken to have the care of an adult where that person:

84 QLRC R49, Vol 1, p 340.85 QLRC R49, Vol 1, p 335.86 The definition of “health matter” does not include special health matters such as sterilisation,

removal of tissue or termination of pregnancy (schedule 2 clause 4).


• provides domestic services and support to the adult; or

• arranges for the provision of domestic services and support for the adult.

It is not entirely clear what the exact meaning of clause 62(4) is but it is likely that itwould be construed to mean that an adult who resides in an institution is taken to bein the care of the person with whom they resided immediately prior to their move tothe institution.

The Adult Guardian may exercise power where a statutory health attorney for thematter:

• refuses to make a decision where such a refusal is contrary to the health careprinciple; or

• makes a decision that is contrary to the health care principle (cl 63(2)).

6.5 LEGISLATIVE PRINCIPLES

6.5.1 QLRC’S Recommendations

The Commission recommended that new legislation should set out guidingprinciples which would be binding on those who exercise power or performfunctions under the legislation. The principles should be based on the followingpremises and ideas:

• a presumption of competence

• that people with disabilities have the same human rights as others

• that people with disabilities have a valued social role

• that people with decision-making disabilities be encouraged to participate incommunity life

• that they should be encouraged to be self-reliant

• that all adults are entitled to live in the manner that they wish

• that the importance of existing relationships be recognised

• that suitable recognition should be given to people’s differing backgroundsand beliefs

• that all people should be recognised as individuals with differing needs andcharacteristics

• that the rights and welfare of people with a decision-making disability arethe responsibility of the whole community


• that the rights of confidentiality of people with a decision-making disabilitybe respected.87

The Commission stated:

The principles give statutory acknowledgment to the right of people with decision-making disability to respect for their human dignity. They attempt to strike abalance between, on the one hand the right of people with a decision-makingdisability to adequate and appropriate support in their decision-making and toprotection from neglect, abuse and exploitation when their disability preventsthem from looking after their own interests and, on the other, their right to thegreatest possible degree of autonomy.88

Clause 75 requires any person or other entity who performs a function or exercisesa power under the Act or an enduring document to exercise his or her powers inaccordance with the general principles or for a health matter in accordance with thehealth care principles. The general principles and health care principles are set outin Schedule 1 parts 1 and 2 of the Bill. The Principles are set out in Appendix Eof the Bulletin.

6.6 PROVISIONS ABOUT HEALTH MATTERS

6.6.1 Order of Priority of Decision Making Mechanisms

Clause 89 sets out the order of priority for the different health care decision makingprocesses. If an adult has impaired capacity for a special health matter and the adulthas made an advance directive that gives a direction about that matter the mattermay be dealt with under the direction (cl 89(1)). If an adult has impaired capacityfor a health matter the matter will be dealt with according to the first of thefollowing decision making processes applicable to that person:

• an advance health care directive (cl 89(3)).

• an enduring power of attorney for personal decisions (cl 89(4)).

• a statutory health attorney (cl 89(5)).

87 QLRC R49, Vol 1, pp 28-43.88 QLRC R49, Vol 1, p 27.


6.7 PROVISIONS WHICH PROTECT THE INTERESTS OF THE PRINCIPAL

6.7.1 Financial Matters

The provisions from the Property Law Act requiring the attorney to act honestlyand diligently, keep records and keep property separate are included in the Bill(These provisions are discussed at 2.4.1 of this Legislation Bulletin).

Clause 86 creates a presumption of undue influence in circumstances where aprincipal transacts with an attorney under an enduring power of attorney or advancehealth directive or with a relation, business associate or close friend of the attorney.

Clause 87 prevents an attorney gifting any property of the principal unless theprincipal has expressed an intention to do so under the power. Exceptions are madefor:

• gifts to a relative or close friend of the principal which are seasonal or relateto a special event such as a birth or wedding

• donations of the type that the principal made when he or she had thecapacity to make or which an attorney might reasonably be expected tomake.

6.7.2 Compensation

Clause 105 provides that an attorney may be required to pay compensation to theprincipal or the principal’s estate for any loss caused by the attorney’s failure tocomply with the requirements of the Act.

6.7.3 Health Matters

Adults’ Objections and Use of Force

Clause 91 provides that a direction in an advance health directive or exercise of apower of attorney will be ineffective if a health provider is or ought to be aware thatthe adult objects to the health care. However, a direction in a health care directiveor power will be effective to give consent to a treatment where:

• a direction states that it should operate despite any objection; or

• the adult has minimal understanding of what the health care involves or whyit is required; or

• the health care is likely to cause the adult no distress or only temporarydistress that is outweighed by its benefit.

Clause 93 makes it an offence for a person who has no right to exercise power for ahealth matter to do so or to represent to a health provider that they have a right to


exercise such power. These offences are punishable by a maximum fine of 200 units($15,000).

Clause 94 provides that if one or more attorneys disagree about how power inrelation to a health matter should be exercised and the disagreement can’t beresolved by mediation then the Adult Guardian may exercise the power (cl 94(1)).If an attorney refuses to make a decision where the refusal is contrary to the healthcare principles, or makes a decision contrary to these principles, the adult guardianmay exercise power for the health matters (cl 94(2)).

6.8 PROTECTION AND RELIEF FROM LIABILITY

6.8.1 Financial matters

An attorney who acts believing that an empowering document is valid when in factit is invalid will be protected from liability (cl 97(2)). Clause 98 is intended toafford protection to third parties who deal with an attorney believing that theempowering document under which they act is valid. Any transactions they enterinto with the attorney will be valid despite the invalidity of the empoweringdocument (cl 98(2) ). This provision is based on s 56 (7) of the Trusts Act 1973.

6.8.2 Health matters

Minor uncontroversial health matters

Clause 90 allows minor uncontroversial health care to be carried out withoutconsent if the health care provider:

• considers the adult has impaired capacity for a decision; and

• considers there is no statutory health attorney for the adult; and

• considers the health care is necessary, will promote the person’s wellbeingand is minor and uncontroversial; and

• does not know and cannot be expected to know of any dispute betweeninterested parties about the carrying out of health care; and

• the adult does not object.

Health care providers will incur no liability if:

• they act not knowing of the existence of an advance health care directive(clause 101); or

• they act in contravention of a health care directive that they consider to beuncertain or that circumstances have so changed that the terms of thedirection are inappropriate; or (clause 102).


• they act in accordance with instructions from a person who represented tothem that they had the authority to exercise such power (clause 103).

However, a health care provider will not be protected if they knew that someone didnot have the requisite authority or if they should reasonably have known that theperson did not have the requisite authority (clause 103(2)). If an attorney isappointed under an advance directive the health provider will only be affordedprotection for not following a direction due to uncertainty, if they have firstconsulted with the attorney (clause 102(3)).

6.8.3 Urgent Treatment Needed

The Commission recommended that the legislation provide that if a person hasimpaired decision-making capacity, health care other than that requiring specialconsent may be carried out without consent if it is not reasonably practicable toobtain consent and it is thought necessary:

• to address an imminent risk to the person’s life or health;89 or

• to prevent or relieve pain or distress.90

The Bill contains no provision regarding urgent health care as recommended by theCommission.91

6.9 THE SUPREME COURT’S JURISDICTION

It is not intended that the proposed legislation should affect the Supreme Court’sparens patriae jurisdiction.92 This jurisdiction enables the Supreme Court toappoint attorneys for people who because of mental illness, intellectual disability,illness or accident or age cannot adequately protect their own interests.

89 For an example of such a provision in other legislation see the Consent to Medical Treatment

and Palliative Care Act 1995 (SA), s 13(1)(b).90 QLRC R49, Vol 1, p 370.91 According to information received from the Division of Policy and Legislation, Department of

Justice on 22 September 1997, it was not felt appropriate for this type of provision to beincluded in this legislation. Consideration will be given to amending the Medical Act 1939(Qld) to include such a provision.

92 This jurisdiction has its origins in the responsibility of the monarch under early English law toprotect the welfare and property of people with a mental illness or intellectual disability whowere unable to look after themselves. In the seventeenth century this protective responsibilitywas passed to the Courts of Chancery. When the Supreme Court was established it was giventhe powers held by the Court of Chancery. See QLRC R 49, Vol 1, pp 21-22.


Clause 109 allows applications to the court regarding an empowering document.On application the court may make:

• a declaration as to a person’s capacity (clause 110)

• a declaration as to the validity of a power of attorney, enduring power ofattorney or advance health directive (clause 112)

• an order removing or replacing an attorney (clause 115(a))

• an order revoking all or part of a power of attorney, enduring power ofattorney or advance health directive (clause 115(d))

• an order changing the terms of a power of attorney, enduring power ofattorney or advance health directive (clause 115(c))

• an order as to the interpretation of a power of attorney, enduring power ofattorney or advance health directive (clause 117(1)(a))

• an order as the exercise of an attorney’s power (draft clause 117(1)(b)).

6.10 THE ADULT GUARDIAN


The Commission recommended that two separate statutory offices be established toperform functions under the legislation: that of the Public Advocate93 and that of theAdult Guardian. The Adult Guardian would have responsibility for:

• a scheme of community decision-makers

• a scheme of community visitors

• investigating complaints that a person with a decision-making disability is beingabused or neglected or is in need of assistance;

• seeking assistance for a person with a decision-making disability from agovernment department, institution, welfare organisation or the provider of aservice or facility;

• providing information and advice about the legislative scheme proposed by theCommission and about the role of decision-makers under that scheme.94

In coming to this recommendation the Commission had regard to similar statutoryoffices established in other Australian jurisdictions. In Victoria and South Australiathe statutory office is called the Public Advocate. In New South Wales, the

93 According to information received from the Division of Policy and Legislation, Department of

Justice on 22 September 1997, the establishment of an office of Public Advocate is to beconsidered for the second phase of legislative reform in relation to those who have a decision-making incapacity.

94 QLRC R49, Vol 1, p 432.


Northern Territory and Western Australia, it is called the Public Guardian. In theAustralian Capital Territory it is called the Community Advocate. In itssubmission the Public Trustee proposed that the role of the Adult Guardian could beperformed by the Public Trustee. The Commission did not agree with this proposalindicating that, although the Public Trustee had experience in acting as a decision-maker in regard to financial matters and in undertaking advocacy for some clients, itdid not have experience in acting as decision-maker in the areas of health care andpersonal welfare. The Commission noted that the Public Trustee currently carriesout a number of services that have no connection with its role as decision-maker oflast resort for people whose decision-making capacity is impaired. The Commissionalso believed that current perceptions of the Public Trustee might impair communityacceptance and the effectiveness of the recommended Office of the AdultGuardian.95


The Bill provides for the establishment of a position of Adult Guardian. It will bethe role of the Adult Guardian to protect the rights and interests of adults who haveimpaired capacity. In performing functions and powers under the new legislation,the Adult Guardian will not be under the control of the Minister (cl 128). It isproposed that the Adult Guardian be given certain investigative and protectivepowers.

Clause 133 empowers the Adult Guardian to investigate a complaint or allegationthat an adult with impaired capacity is being neglected, exploited or abused or hasinappropriate or inadequate decision-making arrangements. An Adult Guardianmay require an attorney, who has been made responsible for financial matters underan enduring power of attorney, to provide a summary of receipts and expenditure orother accounts of dealings conducted over a specified period. The Adult Guardianmay also require that the accounts be audited (clause 134). Anyone who fails togive up documents upon being requested to do so by the Adult Guardian will beliable to a maximum penalty of 100 penalty units (ie $7500) (clause 135).

Clause 136 gives the Adult Guardian power to summons a person to attend at astated time and place to give information and produce documents and answerquestions. The maximum penalty for non-compliance will be 100 penalty units (ie$7500).

An Adult Guardian who forms the view that property of an adult is being wrongfullyheld, detained, converted or injured, or that money is payable to an adult, may apply

95 QLRC R49, Vol 1, p 434.


to the court for an order for recovery of possession of the property and damages forthe conversion or injury to the property (clause 142).

An Adult Guardian may by written notice suspend the operation of some or all ofthe attorney’s power where the Adult Guardian forms the view that an attorneyunder an enduring power of attorney is not suitable or competent because (clause143(2)):

• an interest of an adult is not being protected;

• the attorney is neglecting his or her duties or is abusing his or her powers; or

• the attorney has contravened the Act.

A Guardian could only suspend an attorney for three months (clause 143(3)).However, during this period the Adult Guardian may carry out an investigation oraudit or apply to the court for an order removing the attorney or revoking theenduring power of attorney.

6.11 AMENDMENTS TO THE INTELLECTUALLY DISABLED CITIZENS ACT

1985

The Bill amends the Intellectually Disabled Citizens Act 1985 by inserting aproposed new Part 2A which deals with the Legal Friend and the Adult Guardian.

This amendment was necessary:

Because the giving of consent to health care on behalf of an adult withimpaired capacity will now be able to be made within the family, and theestablishment of the adult guardian for those cases where an adult has noenduring power of attorney, statutory health attorney or advance healthdirective, it will no longer be necessary for the legal friend to give consent tomedical treatment.

Because of the gap in the law which previously existed relating to medicalconsent for adults with impaired capacity, this requirement has,unfortunately, often been viewed as bureaucratic interference with the familyand its removal will be welcomed by the community.96

Proposed new section 26A provides that where the Intellectually Disabled CitizensCouncil authorises the adult guardian to act for an assisted citizen the adult guardianmay give consent for the citizen to medical, dental, surgical or other professionaltreatment or care. Before giving such consent the Adult Guardian is required to:

• consult with relatives of the assisted citizen who are caring for the citizen;

96 Powers of Attorney Bill 1997 (Qld), Second Reading Speech, Hon DE Beanland MLA,

Queensland Parliamentary Debates, 8 October 1997, p 3689.


• take reasonable steps to become informed about the matters requiringconsent and the alternatives; and

• inform the citizen as best as possible, given their ability to understand theinformation, about the matters which require consent and the optionsavailable.

An adult guardian must not consent if the consent would be inconsistent with adirection given by the assisted citizen in an advance directive under the Powers ofAttorney Act 1997 (proposed new section 26A(4)). This is to be contrasted to thesituation of an attorney appointed by the citizen. Proposed new section 31A(5)provides that if the council authorises the adult guardian to act for a citizen, thecitizen’s attorney, including a statutory health attorney, may only act as authorisedby the adult guardian.


BIBLIOGRAPHY

Monographs

• Australian Law Reform Commission, Report No 47, Community Law Reform forthe Australian Capital Territory: Third Report - Enduring Powers of Attorney,AGPS, Canberra, 1988.

• Creyke R, Who Can Decide? Legal Decision-Making for Others,Commonwealth Department of Human Services and Health, Aged andCommunity Care Service Development and Evaluation Reports, No 19, AGPS,September 1995.

• Law Reform Commission of Victoria, Discussion Paper No 18, Enduring Powersof Attorney, April 1990.

• Law Reform Commission of Western Australia, Report on Medical Treatmentfor the Dying, Report No 84, 1991.

• Queensland Department of Justice, Explanation of the Powers of Attorney Bill1997 [Draft Bill].

• Queensland Law Reform Commission, Assisted and Substituted Decisions:Decision-making for People Who Need Assistance because of Mental orIntellectual Disability: A New Approach, Discussion Paper No 38, July 1992.

• Queensland Law Reform Commission, Assisted and Substituted Decisions:Decision-making by and for people with a decision-making disability, QLRCR49, Vol 1, Draft Report, February 1995.

• Queensland Law Reform Commission, Assisted and Substituted Decisions:Decision-making by and for people with a decision-making disability, QLRCR49, Vol 2, Draft Legislation, June 1996.

• Queensland Law Reform Commission, Assisted and Substituted Decisions:Decision-making by and for people with a decision-making disability, QLRCR49, Vol 3, Summary of Recommendations, June 1996.

• University of Queensland, Department of Social and Preventive Medicine,Healthy Ageing, Healthy Dying: Community and Health ProfessionalPerspectives on End-of-Life Decision-Making, February 1996.

• University of Queensland, Department of Social and Preventive Medicine, End-of-Life Decision-Making: Perspectives of General Practitioners and Patients,July 1996.

• University of Queensland, Patient Self-Determination in Terminal Care: Phase2. Designing “Useful” Advance Directives and Proxies, May 1997.


• Victoria, Social Development Committee, First Report of the SocialDevelopment Committee upon the Inquiry into Options for Dying with Dignity,1986.

• Victoria, Social Development Committee, Second and Final Report of the SocialDevelopment Committee upon the Inquiry into Options for Dying with Dignity,1987.

Chapters

• Finnis J, ‘Living will legislation’, Euthanasia, Clinical Practice and the Law,Luke Gormally, ed, The Linacre Centre for Heath Ethics, London 1994.

Annual Reports

• Health Rights Commission of Queensland, 4th Annual Report 1995-96.

• Intellectually Disabled Citizens Council of Queensland, 11th Annual Report 1995-96.

• The Public Trustee of Queensland, 1996 Annual Report.

Journal Articles

• ‘An explanation of enduring powers of attorney’, Justice and the JP’, 8(4),December 1990, pp 13-15.

• ‘Law reform on deathover but not out’, Australian Health Law Bulletin,2(7), April 1994, pp 81-85.

• ‘Living wills … living well’, Campaign, No 222, September 1994, pp 26-27,68.

• ‘Study influences new end-of-life Bill’, University News, University ofQueensland, 5 August 1997, p 16.

• Creyke R, ‘Enduring Powers of Attorney: Cinderella Story of the 80s’, WesternAustralian Law Review, Vol 21, 1991, pp 122-148.

• Creyke R, ‘Privatising Guardianship - The EPA Alternative’, Adelaide LawReview, 15(1), 1993, pp 79-103.

• Duke P, ‘Powers of Attorney’, Law Institute Journal, November 1992, p 1012.

• Griffiths L, ‘The enduring power of attorney’, Family Law, Vol 17, January1987, pp 7-12.

• Grimm E, ‘Fine-tuning the old enduring powers of attorney’, Law InstituteJournal, December 1990, pp 1136-1137.

• Lanham D and Fehlberg B, ‘Living Wills and the Right to Die With Dignity’,Melbourne University Law Review, 18(2), December 1991, pp 329-349.


• Lanham D and Woodford S, ‘Refusal by agents of life-sustaining medicaltreatment’, Melbourne University Law Review, 18(3), June 1992, pp 659-675.

• Lipton JD, ‘Powers of attorney: their operation and effect’, Law InstituteJournal, 69(7), July 1995, pp 660-661.

• Lush DA, ‘Enduring powers of attorney and statutory wills’, The Law Society’sGazette, No 10, 9 March 1988, pp 38-39.

• Mendelson D, ‘Medico-Legal Aspects of the ‘Right to Die’ Legislation inAustralia’, Melbourne University Law Review, 19(1), June 1993, pp 112-152.

• O’Grady D, ‘Living wills living well’, Campaign, September, pp 27-29 & 68.

• Smith RM, ‘Evaluating the donor’s competence to sign an enduring power ofattorney’, Journal of Law and Medicine, Vol 4, August 1996, pp 82-92.

• Thrower M, ‘Collaborative Decision Making for Intellectually Disabled Adults’,Proctor, May 1996, pp 18-20.

Newspaper Articles

• ‘“Living Wills” a sensitive reform’, Courier-Mail, 24 February 1997, p 10.

• Griffith C, ‘A will - in case you live’, Sunday Mail, 27 April 1997, p 26.

• Griffith C, ‘Shock change to wills’, Sunday Mail, 30 March 1997, p 16.

• Griffith C, ‘Who controls your life’, Sunday Mail, 27 April 1997, p 51.

• Morley P, ‘Bill offers power over future care’, Courier-Mail, 6 June 1997, p 6.

• Morley P, ‘State nod for death wish wills’, Courier-Mail, 21 February 1997, p 1.

Ministerial Statements

• Beanland MLA, Hon D, Attorney General and Minister for Justice, ‘AdvanceHealth Directives’, Ministerial Media Statement, 5 June 1997.

• Beanland MLA, Hon D, Attorney General and Minister for Justice, ‘Powers-of-Attorney’, Ministerial Media Statement, 21 February 1997.

• Beanland MLA, Hon D, Attorney General and Minister for Justice, Powers ofAttorney Bill 1997 (Qld), Second Reading Speech, Queensland ParliamentaryDebates, 8 October 1997, pp 3684 -3690.

Cases

• Reckitt v Barnett Pembroke and Slater [1929] AC 176.

• Powell v Thompson [1991] NZLR 597.

• Secretary, Department of Health and Community Services v JWB and Another(1992) 106 ALR 385.

• Airedale NHS Trust v Bland [1993] 1 All E R.


Legislation

Australian Capital Territory

Medical Treatment Act 1994

Powers of Attorney Act 1956

New South Wales

Guardianship Act 1987

Northern Territory

Powers of Attorney Act 1980

Queensland Legislation

Intellectually Disabled Citizens Act 1995

Land Title Act 1994

Medical Act 1939

Mental Health Act 1974

Property Law Act 1974

Public Trustee Act 1978

Trusts Act 1973

South Australia

Consent to Medical Treatment and Palliative Care Act 1995

Tasmania

Guardianship and Administration Act 1995

Medical Treatment and Natural Death Bill 1997

Victoria

Medical Treatment Act 1988

Powers of Attorney: Proposed Legislative Reform in Queensland Appendix

APPENDIX A

POWERS OF ATTORNEY ACT 1956 (ACT)

SCHEDULE PART C

POWER TO CONSENT TO MEDICAL TREATMENT ANDMEDICAL DONATION

APPENDIX B

DRAFT ASSISTED AND SUBSTITUTED DECISION

MAKING BILL 1996 (QLD)

SCHEDULE 1 DIVISION 4

FINANCIAL DECISIONS

APPENDIX C

TRUSTS ACT 1973

SECTION 21 AUTHORISED INVESTMENTS

APPENDIX D

REPORT FINDINGS

END OF LIFE DECISION MAKING

APPENDIX E

POWERS OF ATTORNEY BILL 1997

SCHEDULE 1,

PARTS 1 & 2 GENERAL PRINCIPLES & HEALTH CAREPRINCIPLE

powers of attorney bill 1997 · powers of attorney bill 1997 page 3 2. powers of attorney- choosing...

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