Statutory Health Attorney QLD: Who Decides If You Have No Advance Directive

What Happens When There's No Plan

If you lose the ability to make your own healthcare decisions — through a stroke, an accident, or progressive dementia — and you haven't completed an Advance Health Directive or appointed a health attorney through an Enduring Power of Attorney, Queensland law doesn't leave you in limbo. It assigns a decision-maker automatically.

That person is your Statutory Health Attorney, and they're determined by a fixed priority list under the Powers of Attorney Act 1998 (Qld). You don't get to choose them. The Act does.

The Priority Order

Queensland's default hierarchy works through the list below. The first person who is eligible, readily available, and culturally appropriate becomes your Statutory Health Attorney:

1. Your spouse or partner — if the relationship is close and continuing
2. A person who cares for you — provided they are not a paid carer, health provider, or service provider for a residential service where you live
3. A close friend or family member — provided they are not a paid carer, health provider, or service provider for a residential service where you live

If nobody in the hierarchy qualifies, is readily available, or is culturally appropriate, the Office of the Public Guardian can act as the Statutory Health Attorney of last resort without a formal QCAT appointment. Disputes about who should decide may require QCAT involvement.

People in the hierarchy must be at least 18, readily available, and culturally appropriate for the adult and must be able to make the relevant decision. A paid carer cannot act as the unpaid-carer category.

Why the Default Hierarchy Can Create Problems

The Statutory Health Attorney system works well when family relationships are simple. One spouse, one set of adult children, everyone on the same page. But most families aren't that straightforward.

Blended families. If you're in a second marriage, your current spouse generally has first priority as Statutory Health Attorney if the relationship is close and continuing — potentially making decisions that your adult children from a previous relationship disagree with. Without an AHD or EPOA, those adult children have no automatic authority to replace that decision-maker, even if they believe they better understand your wishes.

Estranged relatives. Relationship quality matters. A spouse or partner who is separated or estranged may not qualify if the relationship is no longer close and continuing, allowing the next eligible category to be considered.

Family disputes. When two siblings both claim a close and continuing relationship, the hospital needs to determine which one has decision-making authority. This can trigger a formal dispute that escalates to the Queensland Civil and Administrative Tribunal (QCAT) — a process that takes weeks while your medical care hangs in the balance.

No qualifying relatives. If you don't have a spouse, unpaid carer, close friend, or family member who meets the criteria, the Office of the Public Guardian may make your healthcare decisions as the last resort. They don't know your values, your faith, your preferences about end-of-life care, or your feelings about specific medical interventions.

What Your Statutory Health Attorney Can and Can't Do

Your Statutory Health Attorney has the authority to consent to or refuse medical treatment on your behalf, but their decision-making is constrained by the Health Care Principles under the Guardianship and Administration Act 2000. They must:

• Act in your best interests, considering what they know about your views and wishes
• Take the least restrictive approach — intervening only as much as necessary
• Try to support you in making your own decisions to whatever extent you're still able

They cannot override a valid Advance Health Directive. If you've recorded specific treatment instructions in an AHD and a Statutory Health Attorney disagrees, the AHD takes statutory priority. The Statutory Health Attorney can only make decisions for situations the AHD doesn't cover.

They also cannot make decisions about financial matters. Financial decisions require a formal EPOA or a QCAT-appointed administrator — the Statutory Health Attorney framework covers health and personal decisions only.

How to Avoid the Default System Entirely

The Statutory Health Attorney hierarchy exists as a safety net, but it's not a substitute for planning. There are two ways to take control:

Complete an Advance Health Directive (Form 4). Record your specific treatment preferences so the question of who decides becomes less important — your instructions are already on record and take legal priority.

Appoint a health attorney under an EPOA. Choose the person you trust most, regardless of where they fall in the statutory hierarchy. You can appoint a close friend over a spouse, an adult child over a sibling — whoever you believe best understands your values.

Both documents need to be executed while you still have capacity. Once you've lost the ability to make decisions, it's too late to create either one.

Choose Your Own Decision-Maker

Leaving your healthcare decisions to a statutory default is leaving them to chance. Our Queensland Advance Directive & Living Will Kit walks you through appointing the right people under both an AHD and an EPOA, with attorney selection criteria and a family conversation planner to get everyone on the same page before capacity becomes an issue.

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