Act Under a Power of Attorney for Medical Decisions

Being an Attorney is a profound legal responsibility that requires diligence and compassion. When sudden illness or the cognitive decline of your parent, grandparent or any loved one forces you to step from the role of a caring relative into the legal role of an Attorney, you will carry the weight of making deeply personal and life-altering health decisions for them, often with significant uncertainty. In this situation, the appointed Attorney under an Enduring Power of Attorney (EPOA) steps into the shoes of the principal (the person they are assisting) to make medical and personal decisions in their best interests – usually in consultation with medical and other professionals.

We outline the key considerations you’ll need to make if you are appointed as the Attorney for personal and health matters under an EPOA.

The Critical Trigger: Impaired Capacity

The most important thing in Queensland law is knowing precisely when your power begins. Your authority to make health decisions can only be activated when the person you are assisting (the Principal) has impaired capacity to make that specific decision. This is different for financial powers which can start immediately or at some other time before the Principal loses capacity.

So, to address the question, “How to act under the Power of Attorney?” the process is not merely administrative – it is clinical.

Capacity Is Assumed: The law presumes the person retains capacity until it is proven otherwise. You cannot simply step in because you disagree with their choices.
The Medical Assessment: In most cases, the attending doctor or medical professional will determine that the Principal lacks the capacity to understand the information, weigh the options, and communicate a decision regarding their health care. It is this medical opinion that legally triggers your ability to act.
Acceptance Is Essential: Before you can make any decisions, you must have previously signed the Enduring Power of Attorney (or Advance Health Directive if that is the document which appoints you as attorney for personal and health matters) accepting the role. If you haven’t, you must do so before the power is formally activated.

The Scope: What Does Your Authority Cover?

Once activated, what does a Power of Attorney for personal and health matters cover? Your powers are broad but strictly limited to non-financial matters. Your role as the health attorney gives you the authority to make critical choices about:

Health Care Decisions: Consenting to or refusing most medical treatments, procedures, and services, including medication, surgery, and palliative care.
Lifestyle Matters: Deciding where and with whom the Principal lives, and what support services they require (e.g., in-home care or placement in residential aged care).
Legal Matters: Dealing with certain legal issues that are not related to their financial or property affairs.

Your job is not to act as a substitute financial manager (that’s the role of the financial Attorney), but to protect the Principal’s physical and personal well-being.

Your Duties: Acting in Their Best Interests

This is the ethical and legal core of the Power of Attorney for personal and health matters framework in Queensland. You are bound by a set of General Principles and Health Care Principles that must guide every decision you make. You must not simply do what is easiest for you or what you think is best.

Your primary duties include:

Respecting Wishes: You must take into account the Principal’s views and preferences as expressed while they have capacity. Did they talk about refusing life support? Did they express a wish to stay home? You are bound by these wishes, provided they are legal and ethical.
Encouraging Participation: You must support the Principal’s participation in decision-making to the greatest extent possible, even if their capacity is limited.
Acting Honestly: Your decision must be honest, diligent, and primarily benefit the Principal’s rights, interests, and opportunities. You must not enter into a “conflict transaction” where your interests clash with the Principal’s.

The Alternatives and the Override

What happens if there is no valid Power of Attorney for personal and health matters in place? Or who can override a Power of Attorney for personal and health matters once it is active?

When No Document Exists: The Statutory Health Attorney

If a person loses capacity and has not made a valid Enduring Power of Attorney or Advance Health Directive, the law automatically appoints a Statutory Health Attorney. This may be the answer to “How do you get Power of Attorney for personal and health matters over someone in an emergency without existing paperwork?”

The law sets out a strict hierarchy of who can act:

Spouse or De Facto Partner (if the relationship is close and continuing).
The Primary Carer (if over 18 and not a paid carer).
A close friend or relative (over 18).
The Public Guardian.

Overriding the Attorney

No attorney’s power is absolute. The two main entities that can intervene or override a decision are:

The Queensland Civil and Administrative Tribunal (QCAT): QCAT can hear applications to review the Attorney’s decisions, investigate suspected abuse, or even remove an Attorney who is not complying with their duties.
The Public Guardian: This office monitors the Attorney’s actions and can investigate complaints of abuse, neglect, or exploitation. They have the authority to mediate disputes between Co-Attorneys or step in if an Attorney makes decisions contrary to the required legal principles.

Our Final Tip

If you have been appointed as an Attorney for personal and health matters, it’s a sign of profound trust. Understanding the legal framework is essential to honouring that trust. The law regarding Power of Attorney in Queensland is detailed, but it is fundamentally designed to protect the rights of the person who has lost capacity.

If you need to take over this role or prepare your own documents to protect your family, reach out to us. We’re Bradley & Bray, specialising in Wills and Estate Planning, and we’re here to give you the clear, compassionate guidance you need.

Get in touch with us to schedule a consultation. We’re here to guide you through your legal duties and obligations during this challenging time.

Disclaimer: This article is general in nature and does not constitute legal advice. If you require legal advice in relation to your personal circumstances, you must formally engage our firm or another firm to provide legal advice in relation to your matter. Bradley & Bray lawyers take no responsibility for any use of the information provided in this article.