A person giving an advance care directive may appoint one or more adults to be substitute decision-makers in respect of the advance care directive [Advance Care Directives Act 2013 (SA) s 21(1)].
Who cannot be a substitute decision-maker
Certain persons cannot be appointed or act as substitute decision-makers [s 21(2)]:
- a person who is not competent
- a health practitioner who is responsible (whether solely or with others) for the health care of the person giving the advance care directive
- a paid carer of the person giving the advance care directive.
Acceptance of appointment
A substitute decision-maker must certify, by completing and signing the relevant part of the advance care directive form, that he or she accepts the appointment as a substitute decision-maker, and has read and understands the guidelines for substitute decision-makers (available at: www.advancecaredirectives.sa.gov.au) [s 21(3), Advance Care Directives Regulations 2014 (SA) reg 8].
A substitute decision-maker must accept their appointment before the advance care directive is signed by the person appointing them, that is, before the advance care directive is witnessed [reg 8(1)].
Powers of a substitute decision-maker
A substitute decision-maker appointed under an advance care directive may make any decision that the person who gave the advance care directive could have lawfully made in relation to [s 23]:
- health care
- residential and accommodation arrangements
- personal affairs.
The advance care directive may limit the matters a substitute decision-maker can make decisions about.
An advance care directive cannot be used to allow a substitute decision-maker to perform functions that the person who gave the advance care directive has as a trustee or personal representative of another [s 23(3)].
An advance care directive does not authorise a substitute decision-maker to refuse the administration of drugs to relieve pain or distress, or the natural provision of food and liquids by mouth [s 23(4)].
Although a substitute decision-maker has a responsibility to protect a person's interests, he or she does not have the obligation to care for the daily needs of that person. The decisions of a substitute decision-maker extend to all personal decisions (unless limited by the advance care directive); however, the substitute decision-maker has no authority to interfere with civil liberties, for example, intercepting mail or preventing a person from marrying.
Renouncing an appointment
A substitute decision-maker may renounce their appointment by giving written notice to the person who appointed them [s 27(1)].
The permission of SACAT is needed if a substitute decision-maker is the only person appointed under an advance care directive, and they wish to renounce their appointment during a period in which the person who gave the advance care directive is not competent, [s 27(3)].
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