--- title: "Who can make emergency medical decisions for you? - Sapience Financial" description: "What happens when you can’t make decisions for yourself? The person next in line to make decisions for you not be your next of kin." url: "https://sapience.com.au/blog/who-is-your-person-responsible" date: "2026-05-26T20:28:13+00:00" language: "en-GB" --- # Who can make emergency medical decisions for you? - ⚖️ Estate Law & Succession Planning - [ modern estate planning ](https://sapience.com.au/all-tags/modern-estate-planning) - [ ⚖️ Estate Law & Succession Planning ](https://sapience.com.au/insights/estate-law-succession) ![man laying on floor in a gym](https://sapience.com.au/images/blog-assets/who-is-your-person-responsible-sapience-financial.jpg) The legal Person Responsible to make emergency medical decisions on your behalf might be different in each state, unless you do something about it now Reading Time: 5 minutes --- ### Who can make emergency medical decisions for you when you can’t? Most adults are presumed to have the mental capacity to give consent themselves. But what happens when you can’t make decisions for yourself? The person next in line to make decisions for you is referred to as the *person responsible* and it might not be your next of kin. #### *Read in this article* 1. [Medical Consent](https://sapience.com.au/blog/who-is-your-person-responsible#medical-consent) 2. [Who is the *person responsible?*](https://sapience.com.au/blog/who-is-your-person-responsible#who-is-the-person-responsible) 3. [**Caution for de-facto and LGBTQIA+ couples**](https://sapience.com.au/blog/who-is-your-person-responsible#caution-for-de-facto-and-lgbtqia-couples) 4. [The special rights of a *person responsible*](https://sapience.com.au/blog/who-is-your-person-responsible#the-special-rights-of-a-person-responsible) 5. [Are there things a *person responsible* cannot do?](https://sapience.com.au/blog/who-is-your-person-responsible#are-there-things-a-person-responsible-cannot-do) 6. [Frequently Asked Questions: Substituted Medical Decision Making](https://sapience.com.au/blog/who-is-your-person-responsible#frequently-asked-questions-substituted-medical-decision-making) 1. [How is 'Mental Capacity' determined in a medical emergency?](https://sapience.com.au/blog/who-is-your-person-responsible#how-is-mental-capacity-determined-in-a-medical-emergency) 2. [What is the difference between an 'Enduring Guardian' and a 'Power of Attorney'?](https://sapience.com.au/blog/who-is-your-person-responsible#what-is-the-difference-between-an-enduring-guardian-and-a-power-of-attorney) 3. [Does my 'Next of Kin' always have the final say?](https://sapience.com.au/blog/who-is-your-person-responsible#does-my-next-of-kin-always-have-the-final-say) 4. [What can a Person Responsible NOT consent to?](https://sapience.com.au/blog/who-is-your-person-responsible#what-can-a-person-responsible-not-consent-to) If you're in NSW following this hierarchy list of people is a requirement of the [Guardianship Act 1987](http://www6.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/ga1987136/) (NSW). But did you know Australia has eight different Guardianships Acts in place, each with a slightly different interpretation? ### Medical Consent As a general rule, no operation, procedure or treatment may be undertaken without prior consent from the patient or, if the patient lacks capacity, from the patient’s substituted decision maker. The only exceptions are: - in an emergency when the patient lacks capacity and the patient’s express wishes are unknown; or - where the law otherwise allows or requires treatment to be given without consent. In NSW [written consent](https://ncat.nsw.gov.au/documents/forms/gd_form_consent_medical_dental_treatment.pdf) must be obtained for significant treatment and procedures where a Person Responsible is consenting to treatment on behalf of a patient. ### 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](https://www.legislation.nsw.gov.au) 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 LGBTQIA+ couples** ***The problem*** This set hierarchy list of people can create problems for de-facto couples and LGBTQI+ people who may be [together but living apart](https://en.wikipedia.org/wiki/Living_apart_together) (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 LGBTQI+ child or sibling from all medical decisions about their loved one. ***The solution*** The solution is for non-married LGBTQIA+ 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 special 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](https://ncat.nsw.gov.au/) or the relevant government department in your own Australian state. --- ### Frequently Asked Questions: Substituted Medical Decision Making #### How is 'Mental Capacity' determined in a medical emergency? Mental capacity is the clinical ability to understand the nature and effect of a specific decision. In 2026, medical professionals assess whether a patient can understand the information provided, retain it, and communicate a choice. If you are unconscious or legally "incapable" due to trauma or illness, a **Substituted Decision Maker** (the Person Responsible) must step in to protect your interests. #### What is the difference between an 'Enduring Guardian' and a 'Power of Attorney'? These are two distinct "Sovereign" legal documents. A **Power of Attorney** manages your financial assets and property. An **Enduring Guardian** manages your lifestyle and medical treatment decisions. You need both to be fully protected. Without an Enduring Guardian, the law follows a default hierarchy; with one, you choose exactly who has the final say. #### Does my 'Next of Kin' always have the final say? No. In NSW, the term "Next of Kin" has no legal standing in medical consent. The **Guardianship Act 1987** instead uses the **Person Responsible** hierarchy. While a spouse or partner is often high on that list, if an Enduring Guardian has been legally appointed, they take absolute priority over all other relatives, regardless of biological connection. #### What can a Person Responsible NOT consent to? A Person Responsible is legally barred from consenting to "Special Treatments." This includes sterilization, termination of pregnancy, or experimental medical trials. Furthermore, they cannot override a patient who is conscious and objecting to treatment. In these high-conflict cases, an application must be made to the **Guardianship Division of NCAT**. *Disclaimer: Substituted decision-making laws vary significantly between Australian States and Territories. This information is based on the NSW Guardianship Act as of 2026. For a strategic "Black and White" review of your personal protection documents, we recommend a [confidential consultation](https://sapience.com.au/contact).* **Do we sound like the type of people you'd like to do business with?** Call us today on 1300 137 403 or email us [here](https://sapience.com.au/index.php?Itemid=704) for a no-obligation private chat about your situation. --- ![author pic drew browne](https://sapience.com.au/images/author-pic/contact-drew-browne-advisor-sapience-financial.jpg)**Drew Browne** is a specialty Financial Risk Advisor working with Small Business Owners & their Families, Dual Income Professional Couples, and diverse families. He's an award-winning writer, speaker, financial adviser and business strategy mentor. His business Sapience Financial Group is committed to using business solutions for good in the community. In 2015 he was certified as a B Corp., and in 2017 was recognised in the inaugural Australian National Businesses of Tomorrow Awards. Today he advises Small Business Owners and their families, on how to protect themselves, from their businesses. He writes for successful Small Business Owners and Industry publications. You can read his Modern Small Business Leadership Blog [here](https://sapience.com.au/index.php?Itemid=1267). You can connect with him on [LinkedIn](https://www.linkedin.com/in/drewbrowne/). Any information provided is general advice only and we have not considered your personal circumstances. Before making any decision on the basis of this advice you should consider if the advice is appropriate for you based on your particular circumstance. ![Written by Human Not made by AI sapience financial ](https://sapience.com.au/images/icons/not-made-by-AI-sapience-financial-black.png) ## Schema ```json { "@context": "https://schema.org", "@graph": [ { "@type": "BlogPosting", "@id": "https://sapience.com.au/blog/who-is-your-person-responsible#blogposting", "mainEntityOfPage": { "@type": "WebPage", "@id": "https://sapience.com.au/blog/who-is-your-person-responsible" }, "headline": "Who is Your Person Responsible? Navigating Emergency Medical Decisions", "description": "Understand the hierarchy of substituted medical decision-making in NSW. 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