The COVID-19 vaccine rollout has commenced in Australia and while there is some debate as to whether people will get vaccinated we thought it important to consider what your obligations are if you are the decision maker for a person with reduced or diminished capacity?
If you are an attorney or a guardian for a person with reduced or diminished capacity (the principal), and you are appointed as the person to make health care decisions on behalf of that person you should be considering whether that person will receive the COVID-19 vaccine and your obligations carefully.
What is a health care decision?
A health matter is described by the Powers of Attorney Act 1998 (Qld) (the Act) as a matter relating to health care, that is the care, treatment or a procedure for, the principal to:
- to diagnose, maintain, or treat the principal’s physical or mental condition; and
- carried out by, or under the direction or supervision of, a health provider.
Whether you are appointed as an attorney under an Enduring Power of Attorney (or interstate equivalent) or are appointed as a guardian under a guardianship order via the Queensland Civil & Administrative Tribunal (QCAT) (or interstate equivalent) you will need to determine the health care decision appropriate for the principal. This is not a one size fits all decision.
In making your decision you must act in accordance with the Act and any other relevant legislation and any known preferences and directives of the principal.
To determine any known preferences you will need to review any directions and wishes as set out in an Advance Health Directive, Statement of Choices or similar.
These documents may contain instructions that override your personal preference so be careful when reviewing these documents that you interpret these documents correctly. You will also need to promote and act in the best interest of the principal’s medical, personal and social wellbeing. Again, this may be contrary to your own personal preference.
Accordingly, in making your decision you should take into consideration:
- information given by the principal’s health provider against the background of the principal’s medical condition and prognosis;
- the nature and degree of any significant risks associated with the proposed health care;
- whether the proposed health care can be postponed because a better health care option may become available within a reasonable time;
- the consequences for the adult if the proposed health care is not carried out; and
- the benefits versus the detriment of the proposed health care.
In the event that you are uncertain of the best way forward you can seek guidance around the interpretation of documents from a solicitor, a health provider for the principal, or if necessary the court system to assist you in making a decision that is in the principal’s best interest.
In summary, when deciding whether or not you should arrange for the principal to receive the COVID-19 vaccine, you should consider a broad range of information that will guide you in making the appropriate decision specific to the principal.
If you want any further information about making decisions for a person with reduced or diminished capacity or wish to discuss putting documents in place to provide this information to your own future decision makers should you lose capacity please do not hesitate to contact our Wills, Estates, Planning + Structuring team.
This article was written by Sheelagh Gray, Head of Section, and Ben Gouldson, Director. For further information please contact Ben Gouldson, Director.
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