If you're in NSW following this hierarchy list of people is a requirement of the Guardianship Act 1987 (NSW). But did you know Australia has eight different Guardianships Acts in place, each with a slightly different interpretation?
Who is the person responsible?
It depends on where they are on the hierarchy list of people. You might be surprised (and maybe a little shocked) who actually has the power to make decisions on your behalf.
A person responsible is not necessarily a persons next of kin or carer.
In NSW Section 33A(4) of the Guardianship Act 1987 sets the hierarchy of people who can be the person responsible.
A person responsible is one of the following people in order of priority.
- Guardian - an appointed guardian (including enduring guardian) who has been given the right to consent to medical and dental treatment. If this person is not available then-
- Spouse or partner – if there is no guardian, a spouse, de-facto spouse or partner where there is a close continuing relationship. If this person is not available then-
- Carer – if there is no spouse or partner, an unpaid carer who provides or arranges for domestic support on a regular basis. If this person is not available then-
- Relative or friend – if there is no carer, a friend or a relative who has a close personal relationship, frequent personal contact and a personal interest in the person's welfare, on an unpaid basis.
Caution for de-facto and LGBT couples
This set hierarchy list of people can create problems for de-facto couples and LGBTI people who may be together but living apart (TLA) when biological family members who either, do not recognise the relationship, or even know of its existence. Additionally, some families may seek to exclude the partner of their LGBTI child or sibling from all medical decisions about their loved one.
The solution is for non-married LGBTI or de-facto partners is to each make a legal document formally granting the power of the responsible person, to someone of their own choosing, rather than leaving it to medical staff and estranged family members to try and sort out under the stress of a medical emergency.
The specials rights of a person responsible
If you are the nominated person responsible for someone who cannot make decisions for themselves, you have a right and a responsibility to know and understand:
- what the proposed treatment is
- what the risks and alternatives are, and
- you can say “yes” or “no” to the proposed treatment and you can seek a second opinion
Are there things a person responsible cannot do?
A person responsible cannot consent to:
- Special medical treatments like sterilisation operations, pregnancy terminations and experimental treatments
- Treatment if the patient objects to the treatment.
If you’re in this situation you can get more information from ncat.nsw.gov.au or the relevant government department in your own Australian state.