The information on this page relates specifically to advance care planning laws in Queensland. Find out how to create your plan in Queensland.
Law and policy in Australia and Queensland
All states and territories have legislation and/or policy which outlines how a person with decision-making capacity can record their future preferences for care and appoint a substitute decision-maker. These laws also describe the process for medical treatment decision making for people without decision-making capacity.
In Queensland this is the Powers of Attorney Act 1998.
Only statutory advance care directives are legally binding in Queensland.
A substitute decision-maker can make medical treatment decisions on behalf of a non-competent person. In Queensland, the substitute decision-maker can be:
- chosen and appointed by the individual as an attorney (either in an Enduring Power of Attorney process or in an Advance Health Directive)
- a guardian appointed by the Queensland Civil and Administrative Tribunal (QCAT)
- a person with a close and continuing relationship with the individual (i.e. statutory health attorney) who is 18 years or older, chosen in the following order:
- spouse or domestic partner
- a primary carer (unpaid)
- a close relative or close friend
An appointment by QCAT overrides all other appointments.
Appointing an attorney
An attorney appointment should be made using one of the recommended Enduring Power of Attorney forms or in an Advance Health Directive. It must be written in English, contain details of the appointer and person(s) being appointed. The person(s) being appointed must sign that they accept the appointment.
Document signing must be witnessed by a justice of the peace, commissioner for declarations, lawyer or notary public. The witness cannot be a person who is being appointed or has signed on behalf of the person appointing, must not be related to the appointer or person being appointed, and must not be the appointer’s paid carer or current healthcare provider.
More than one person can be appointed, they can be appointed to act jointly, severally, successively, or as a majority. The person(s) being appointed must be at least 18 years old and must not be the appointer’s paid carer or current healthcare provider.
The appointed attorney(s) can consent to, refuse or withdraw treatment on behalf of the person. They must act in accordance with any lawful limitations or conditions contained in the form. They must make the decision they believe the person would make (i.e. substituted judgement).
Advance Health Directives
Only people with decision-making capacity can complete an Advance Health Directive. An Advance Health Directive should be on the recommended Advance Health Directive form or similar. It may contain:
- instructional directives - a person can provide specific directions about treatment that they would consent to, refuse and/or withdraw
- values directives - a person can describe their more general views regarding their values and preferences for care
An Advance Health Directive must be written in English, include the person’s full name, date of birth, address, and be signed.
The Advance Health Directive must be signed by the person and witnessed by two adults; one of whom is a registered medical practitioner. The second witness must be 21 years of age or older and must be a justice of the peace, a commissioner for declarations, a lawyer or a notary public. Neither witness can be a person appointed as an attorney in the Advance Health Directive, a relative of the appointer or the attorney, a beneficiary under the appointer’s Will, or the appointer’s paid carer or current healthcare provider.
Witnesses must certify that the person completing the directive or making the appointment has decision-making capacity, and that they acted freely and voluntarily.
The role of advance care directives when making medical treatment decisions
Advance care directives in Queensland include Advance Health Directives and the Enduring Power of Attorney documents.
Any person with decision-making capacity is able to make their own decisions, including decisions related to life-saving treatment. All adults are presumed to have capacity unless there is evidence to suggest otherwise.
Consent must be obtained before any treatment is provided, withheld or withdrawn. If a person does not have decision-making capacity, all reasonable efforts must be made to locate an advance care directive and identify an attorney. The only exception to this is when emergency treatment is required and an advance care directive or attorney is not available.
If there is an instructional directive refusing medical treatment, a health practitioner cannot provide treatment. An attorney cannot override a valid instructional directive.
If there is a values directive (e.g. Statement of Choices) and the person has not completed an advance care directive, the attorney is required to provide informed consent before treatment is provided. The attorney and the health practitioner should consider information in the values directive, but it is the attorney who is required to make the decision.
If an advance care directive or attorney cannot be located, the Queensland Office of the Public Guardian can provide guidance on the process for proceeding.
Changes and revocation
An advance care directive ends when a new advance care directive is completed, a person with capacity revokes their advance care directive, or it expires (if an expiry date is included), or the person who made the directive dies.
An attorney appointment ends if a person with capacity revokes the appointment of their attorney, if all people appointed are unable to act, if the person who made the appointment dies, if the person who made the appointment gets married or divorced, if there are inconsistent documents, or if the attorney becomes the person’s paid carer or healthcare provider.
The person(s) appointed as attorney can also resign from their appointment.
Under certain circumstances the Queensland Civil and Administrative Tribunal (QCAT) can cancel an advance care directive or attorney appointment.
Advance care planning in the context of mental health
For people with mental illness who maintain decision-making capacity, advance care planning occurs in the same way as for everyone else. An advance care directive can include preferences relating to mental health treatment. They receive treatments under the same laws unless treated under the Mental Health Act 2016 when an Advance Health Directive for Mental Health and appointment of a Nominated Support Person will be relevant.
Advance care directives for people less than 18 years old
Children can do advance care planning and document their preferences, however, there is no advance care directive legislation pertaining to a person less than 18 years of age and they are not legally binding. A person less than 18 years old cannot appoint an attorney.
Applicability in other states and territories
In general, a valid Queensland advance care directive will apply in other states and territories in Australia, although there may be some limitations and additional requirements. It may be recognised under common law.
Similarly, an appointment of an attorney will usually apply, but there is variation in the laws within Australia. It is recommended that a person obtain specific advice from the Office of the Public Advocate or equivalent in the relevant state or territory.
If a person is permanently moving state or territory, it is recommended that they update their documentation using the recommended form(s) for their new location.
Advance care directives from other states and territories
In general, a valid advance care directive from another jurisdiction will be recognised in Queensland if the provisions could have been validly included in an Advance Health Directive.
Queensland only has statutory advance care directives. Common law advance care directives from other states and territories are not recognised in Queensland.