Guardians and Substitute Decision Makers
Whether in conjunction with an advanced care directive or not, a person may also appoint somebody (for example a guardian or a ‘substitute decision maker’) that they wish to make decisions on their behalf during any time of incapcity. The person appointed needs to be over 18 years old, of sound mind, the appointment needs to be made in writing (in an approved form), and will need to be witnessed. Note, while the appointed person will be able to make decisions for the incapacitated person, there may be limits upon when they may refuse treatment, and requirements for when they do.
If a person is incapacitated and unable to make decisions for him/herself, and they have not appointed somebody on their behalf, a substitute decision maker may be recognised at law (for example a spouse or relative), or appointed by the Court (for example, a Court appointed guardian). That person will be able to consent to, or refuse treatment, on the patient’s behalf as per the above (and discussed in the section on consent and incapacity).
The Court may also intervene for example, if a substitute decision maker does not appear to be acting in the best interests of the patient, or there is disagreement with health practitioners about what those best interests are.