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)].
Removal of Substitute Decision-Maker by SACAT
In circumstances where a substitute decision-maker:
- is no longer willing to act as a substitute decision-maker under an advance care directive; or
- has been negligent in the exercise of their power; or
- is not, in the opinion of SACAT, fit to continue as a substitute decision-maker, then
SACAT may, of its own motion or on application by an eligible person:
- revoke the appointment of the substitute decision-maker;
- if the person who made the advance care directive has capacity (and consents) - vary the advance care directive as appropriate including appointing another substitute decision-maker; or
- if the person who made the advance care directive does not have capacity, and no other substitute decision-maker was appointed - revoke the advance care directive.
See section 51 of the Advance Care Directives Act 2013 (SA).
A revocation of an advance care directive by SACAT in these circumstances should not occur if there are still provisions in the document that can continue to have effect, in spite of the removal of the substitute decision-maker [Advance Care Directives Act 2013 (SA) s 51(5)].
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