Who will speak for me if I cannot speak for myself?
13 March 2018
Who would make my health decisions if I could not make my own decisions?
If you are too ill to make your own healthcare decisions, your doctor and your healthcare team would ask your Person Responsible to speak for you about these decisions. Person Responsible is a legal term.
NSW law states that the doctor and healthcare team must seek consent for treatments from the Person Responsible if patients are too ill to consent for themselves. The Guardianship Act 1987 (NSW) establishes how the healthcare team should identify your Person Responsible.
Although there are exceptions for some circumstances, usually the Person Responsible is (in order):
- Your Enduring Guardian, a person legally appointed by you with the power to make decisions regarding your medical treatment
If there is no Enduring Guardian who can speak for you about healthcare decisions.
- Your most recent spouse, de facto or same-sex partner with whom you have an ongoing relationship.
If there is no spouse, de facto, or same sex partner who can speak for you about healthcare decisions.
- The person who cares for you on a regular basis and is not paid to do this.
If there is no carer who can speak for you about healthcare decisions,
- A close friend or relative with whom you have an ongoing relationship.
If no person can be identified (or if the person/s identified are not in a position to assist) then the healthcare team would usually turn to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) for advice about the appointment of a Person Responsible for you.
Can I choose the person who would speak for me about my healthcare decisions if I could not speak for myself?
Yes. If you are 18 years or older, and well enough to make decisions, you can choose a person to be your Enduring Guardian. This person could then speak for you about healthcare or lifestyle decisions if you become too unwell to speak for yourself. You can do this by legally (formally) appointing (making) a person as your Enduring Guardian.
By appointing an Enduring Guardian you make it very clear who the person is that would speak for you. Some people may choose to appoint a specific person as their Enduring Guardian particularly if the person who would be identified according to the order of priority under the Guardianship Act, is not the person they would like to be making decisions for them.
To appoint your Enduring Guardian you can speak with a solicitor and complete an appointment form (see “more information” section below).
The decision of appointing an Enduring Guardian can be reversed or changed at a later date, assuming you are competent at that time to make decisions about your healthcare.
What should I talk about with my Person Responsible?
Hospitals are very stressful places and if you are seriously ill it can be hard, and sometimes distressing, for someone else to speak for you. It is important that the person who may be called upon to speak for you has an understanding of the things that are important to you. This might include your personal and cultural beliefs, what you value, and your wishes about treatment and care. This will make it easier for both of you because, with this information, your Person Responsible will have a better understanding of your wishes and preferences and will not be trying to speak for you based on that they think you would want, or based on what they think they would want. By speaking to them about your healthcare in advance, you may reduce the anxiety that they may feel if they are called upon to speak on your behalf.
It is important this person be given the best chance possible to be speaking for you. If you feel it would help you, your healthcare team will be able to offer some suggestions about how to begin and continue this type of conversation.
Why should I discuss who my Person Responsible is with my healthcare team?
By alerting your healthcare team about who you have identified to speak for you about healthcare decisions, you can help to ensure that your wishes will be honoured.
If you have documents that identify your Enduring Guardian it can be helpful to provide copies to your GP and your health care team to keep in your medical and hospital records.
Is identifying who would speak for me if I was too ill to speak for myself, the same thing as 'Advance Care Planning'?
A very important part of advance care planning is identifying who would speak for you if you were too ill to speak for yourself by appointing an enduring guardian. Advance Care Planning is a process that helps you to plan for the future, including for your health care and your living and support arrangements. This process involves thinking about your values, beliefs and wishes and about the medical care you would like to have if you cannot make your own decisions.
As mentioned above, it is important to discuss the things that matter to you about your healthcare with the person you identify to speak for you.
Some people choose also to write down their wishes in a document called an Advance Care Plan or Advance Care Directive. Writing down your wishes can help your healthcare team and your Person Responsible to plan and provide care that is in keeping with your wishes and preferences.
Should I talk with my healthcare team about Advanced Care Planning?
If you are thinking about Advance Care Planning it can be helpful to talk with your healthcare team. They can give you information about your health and your medical problems and talk with you about problems that may arise for you in the future. They can also address questions you may have about your health including things that may be worrying you about the future.
One approach some people find helpful is to make a list of questions to ask their doctor. Some examples of common questions can be found here.
If you already have an Enduring Guardian appointed or an Advance Care Plan or Directive document, we suggest you:
- Bring your documents or copies of them, into hospital with you and give them to the healthcare team caring for you.
- Talk with your family and friends about your preferences for treatment and care and let them know where your documents are kept and who has a copy.
Where can I find more information about appointing an Enduring Guardian or about Advanced Care Planning?
If you need more information, you can speak with -
- Your health care team: your doctor, including your GP or Specialist, nurse or social worker
- Your solicitor.
You can also find information and fact sheets on the website of the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) or on the NSW Government website
Click here for more information and available resources for advance care planning.
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