ACT Health Attorney: What It Means and Why It's a Vulnerability

A "Health Attorney" in the ACT is not someone you choose. It is a person identified by doctors using a statutory hierarchy when a patient loses capacity and has no enduring power of attorney or guardian in place. Understanding how this fallback works — and what it cannot do — is the strongest argument for getting an EPoA done while you still can.

How a Health Attorney Gets Appointed

Under the Guardianship and Management of Property Act 1991, when a patient lacks decision-making capacity and needs consent for medical treatment, the treating clinician identifies a Health Attorney from a fixed hierarchy:

1. Spouse or domestic partner (including de facto and same-sex partners)
2. Unpaid carer who has been providing regular care
3. Close friend or relative who has maintained a close personal relationship

The clinician works down the list until they find someone willing and available to make the treatment decision. There is no formal appointment ceremony — the doctor identifies the person, confirms the relationship, and proceeds.

The Critical Limitation

Here is what free government resources rarely make clear: a statutory Health Attorney has no legal authority to refuse or withdraw life-sustaining treatment. They can consent to procedures, agree to medications, and make decisions about day-to-day care. But they cannot direct doctors to turn off a ventilator, stop dialysis, or withhold CPR.

If the Health Attorney attempts to refuse life-sustaining treatment, or if there is a dispute among equally ranked family members about what the patient would have wanted, the treating clinician must refer the matter to the Public Trustee and Guardian. From there, the case typically goes to ACAT for a formal guardianship order — a process that can delay decisions while the patient remains on treatment they may not have wanted.

Why This Gap Matters

Consider a common scenario: a parent with dementia is admitted to Canberra Hospital after a stroke. There is no EPoA, no Health Direction. The treating team identifies the eldest child as the statutory Health Attorney. The child knows the parent always said they never wanted to be "kept alive by machines," but when the child asks doctors to withdraw mechanical ventilation, the clinical team explains they cannot accept that instruction from a Health Attorney.

The family now faces an ACAT application for guardianship — while their parent is on life support in a hospital bed. ACAT charges no filing fee for guardianship applications, but the process requires evidence, medical reports, and potentially a hearing. Meanwhile, the parent receives treatment they explicitly did not want, and the family absorbs the emotional weight of that reality.

The Six-Month Notification Rule

There is another provision that catches families off guard. If treatment under a Health Attorney's consent continues for more than six months, the treating health professional must formally notify the Public Advocate. This is a safeguard against prolonged substitute consent without independent oversight, but families are rarely told about it in advance.

How to Avoid the Health Attorney Fallback

The fix is straightforward: execute an Enduring Power of Attorney for healthcare while the principal still has capacity. An EPoA attorney can make decisions within the powers granted and may refuse or withdraw treatment — including life-sustaining treatment — if the EPoA expressly authorises it and the statutory conditions are met. Combined with a Health Direction that specifies binding treatment refusals, this addresses the gap.

The ACT Advance Directive & Living Will Kit covers the Health Attorney vulnerability in detail, with a comparison table showing exactly where the statutory fallback fails and how the EPoA fills each gap. It also includes an attorney selection scorecard to help you choose the right person before a crisis forces the decision.

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