What If Family Disagrees With Healthcare Wishes in the ACT?
When Families and Documents Collide
You have signed a Health Direction refusing life-sustaining treatment. Your appointed attorney under your EPoA understands your wishes. But when the crisis arrives, your adult children disagree — one insists on continuing treatment, another wants to honour what you wrote. The treating doctor is caught in the middle.
This scenario is more common in Canberra than most families expect, and the ACT's tripartite planning framework handles it differently from other Australian states.
What the Law Actually Says
Under the Medical Treatment (Health Directions) Act 2006, a written Health Direction is legally binding on the treating clinician if they reasonably believe it complies with the Act and has not been revoked or changed. If you have documented a refusal of specific treatments — CPR, mechanical ventilation, artificial nutrition — and you now lack capacity, the doctor must follow your written refusal. A family member's verbal objection does not override a statutory Health Direction.
However, the Health Direction only covers treatment refusals. It cannot instruct a doctor to provide specific treatments. And if the direction is ambiguous — if it refuses "life support" without specifying which interventions that includes — the treating team has discretion to interpret its scope.
This is where family disputes typically ignite. The Health Direction says one thing; a family member insists the patient "didn't really mean that" or "would have changed their mind." Subject to the Act's requirements, the clinician's obligation is to follow the written document, not the family member's interpretation of what the patient would have wanted.
The Role of the EPoA Attorney
If you have appointed an attorney for healthcare decisions under the Powers of Attorney Act 2006, that attorney is the legally recognised substitute decision-maker once you lose capacity. Family members who are not named as attorneys have no formal standing to make healthcare decisions — regardless of how close the relationship.
When an attorney and a family member disagree, the attorney's decision prevails over the family member's objection (provided it falls within the scope of the EPoA and is subject to any applicable Health Direction and section 19 of the Medical Treatment (Health Directions) Act 2006). But if a family member believes the attorney is not acting in the principal's best interests, or is making decisions inconsistent with the principal's known wishes, they can apply to the ACT Civil and Administrative Tribunal (ACAT) for a review.
ACAT can revoke an EPoA, replace the attorney, or appoint a guardian. These applications carry no filing fee in the Guardianship stream, which removes a financial barrier but also means disputes can escalate quickly.
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What Happens Without an EPoA
If you lose capacity without an EPoA in place, the Guardianship and Management of Property Act 1991 activates a default hierarchy. A treating health professional can appoint a "Health Attorney" from a ranked list: spouse or domestic partner first, then an unpaid carer, then the closest available relative.
But a Health Attorney has a critical legal limitation that most families do not know about: they cannot authorise the withdrawal or withholding of life-sustaining treatment. If the Health Attorney tries to refuse treatment on the patient's behalf and the clinical team disagrees — or if multiple eligible family members at the same rank in the hierarchy disagree with each other — the matter must be referred to the Public Trustee and Guardian.
This referral may lead to an ACAT guardianship application and can delay decisions. During that process, treatment may continue while the legal decision-making issue is resolved — exactly the outcome many people sign Health Directions to avoid.
How Disputes Reach ACAT
Any "interested person" can apply to ACAT for a guardianship or management order. In practice, this means a family member, a treating clinician, the Public Advocate, or the PTG. ACAT will consider:
- The principal's known wishes (as documented in any Health Direction, Statement of Choices, or prior conversations)
- The principal's current best interests
- Whether the existing arrangements (the EPoA, the Health Attorney hierarchy) are working or have broken down
ACAT hearings in the Guardianship stream are less formal than court proceedings, but they are still adversarial in nature. Family members can give evidence, and the Tribunal can appoint an independent guardian if it determines that neither the existing attorney nor the family can act in the principal's interests.
Prevention Is the Only Reliable Strategy
The ACT framework is designed so that a well-executed set of documents — a specific Health Direction, a clear Statement of Choices, and an EPoA with the right attorney — prevents family disputes from having legal traction. The documents are the law; the family's disagreement is their emotional response to the law.
To minimise the risk of a dispute:
- Name your attorney carefully. Choose someone who will follow your wishes even under family pressure — not necessarily the person who is closest to you emotionally.
- Be specific in your Health Direction. "I refuse life-sustaining treatment" is less useful than listing the exact interventions you refuse.
- Complete a Statement of Choices to record the values behind your decisions. When a family member challenges the Health Direction, the Statement of Choices provides context that supports the document's intent.
- Have the conversation now, not later. Tell your family what you have documented and why. Surprise is the leading cause of disputes at the bedside.
The ACT Advance Directive & Living Will Kit includes an attorney selection scorecard and a values conversation worksheet to help you work through these decisions before a crisis forces them.
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