Substitute Decision Maker and Person Responsible Hierarchy in NSW

What Is a Person Responsible in NSW

When a patient in NSW loses decision-making capacity and has not appointed an enduring guardian, hospitals cannot simply ask the nearest family member for consent. The Guardianship Act 1987 establishes a strict statutory hierarchy — called the "person responsible" — that determines who has legal authority to consent to medical and dental treatment on the patient's behalf.

The person responsible is not a role anyone applies for or is formally appointed to. It is a default position that activates automatically when the patient lacks capacity and a treatment decision needs to be made. The treating clinician identifies the person responsible by working down the hierarchy until they find someone who is available, willing, and not disqualified.

The Hierarchy

The person responsible hierarchy under section 33A of the Guardianship Act 1987 ranks decision-makers in this order:

1. A guardian or enduring guardian with authority to consent to medical and dental treatment. If you appointed an enduring guardian with healthcare functions, they sit at the top of the hierarchy and override everyone else.

2. Your spouse or de facto partner — including same-sex partners — provided there is a close and continuing relationship. The key qualifier is "close and continuing." A legally married spouse who has been separated for years and has no ongoing contact may not meet this threshold.

3. An unpaid carer who regularly provides or arranges domestic support for you. This means a family member or friend who helps with daily living tasks — not a paid support worker or aged care employee.

4. A close relative or friend who maintains frequent personal contact and a genuine interest in your welfare. This category is broad, but "frequent personal contact" is the test. A sibling who lives overseas and calls once a year does not automatically qualify.

The first person in the hierarchy who is reasonably available and willing to act becomes the person responsible. Clinicians must make reasonable efforts to identify and contact the highest-ranked person. For minor procedures, the treating practitioner may proceed without consent if treatment is necessary to promote the patient's health and wellbeing and the patient is not objecting.

What the Person Responsible Can and Cannot Do

The person responsible can consent to medical and dental treatment that the treating practitioner has proposed. They must consider any existing advance care directive the patient has made, and their consent must reflect what the patient would have wanted based on their known values and wishes.

There are hard limits. The person responsible cannot consent to "special medical treatment" — a category defined under the Guardianship Act that includes procedures like sterilisation and experimental procedures. These require consent from the Guardianship Division of NCAT. The person responsible also cannot consent to treatment if the patient is actively objecting to that treatment (even if the patient lacks formal capacity, active objection triggers a requirement to go to NCAT for authorisation).

Where Disputes Arise

The hierarchy works smoothly when one clear person sits at the top and agrees with the clinical team's recommendation. It breaks down in several predictable ways:

Multiple people at the same level disagree. If the patient has three adult children and no spouse, all three are at the same level of the hierarchy. If they disagree about a treatment decision — one wants full intervention, another wants palliative care — the treating team cannot pick a side. They must apply to NCAT for a determination, which typically takes weeks to months for an interim order and six to twelve months in a complex, contested case.

The highest-ranked person is not acting in the patient's interests. If clinicians or family members suspect that the person responsible is making decisions that harm the patient (for example, refusing treatment to hasten inheritance), they can apply to NCAT to have a guardian appointed to override the person responsible.

No one in the hierarchy is available. If the patient has no spouse, no unpaid carer, and no close relative or friend who maintains frequent contact, the treating team must apply to NCAT for a guardianship order for major medical or dental treatment. In the interim, for minor procedures, clinicians can provide treatment without consent if it is necessary to promote the patient's health and wellbeing and the patient is not objecting.

How to Avoid the Person Responsible Hierarchy Entirely

The hierarchy is a fallback. It only applies when you have not appointed an enduring guardian. If you execute an appointment of enduring guardian naming a specific person to make your healthcare decisions, that person sits at the top of the hierarchy and eliminates any ambiguity about who has authority.

Pairing the enduring guardian appointment with a common-law advance care directive — which records your specific treatment preferences — gives clinicians direct instructions for the scenarios you anticipated, and a named decision-maker for everything else. The NSW Advance Directive & Living Will Kit covers both documents with a step-by-step guide to NSW-specific requirements.

See more New South Wales guides →