By Rehana Richard
Significant changes to the Power of Attorney Act 2006 (ACT) came into effect on 1 September 2016.
Whether you have an existing Enduring Power of Attorney or are thinking of making an Enduring Power of Attorney, the amendments may have an impact on you.
When creating an Enduring Power of Attorney, a person is able to authorise their chosen attorney or attorneys to make decisions on their behalf in relation to:
- Property and financial matters;
- Personal care matters; and
- Health care matters.
The two major changes to the legislation can be summarised as:
- the introduction of a new prescribed Enduring Power of Attorney form in effect as of 2 September 2016; and
- a fourth power has been inserted into Enduring Powers of Attorney to allow a person (ie. the ‘principal’) to authorise their attorney/s to make decisions in relation to medical research matters involving ethically-approved ‘low-risk research’ and ‘medical research’. Prior to 1 September 2016, attorneys did not have this power in the ACT.
Powers in relation to medical research matters
The policy objective behind the amendments is to enable people with impaired decision-making to receive potentially beneficial treatment that was not otherwise available to them and to assist health researchers to develop innovative treatments.
There are two broad categories of medical research matters: ‘low-risk research’ and ‘medical research’. Low-risk research is essentially research that poses no foreseeable risk of harm to the person. Examples of low-risk research include research comparing the effectiveness of paracetamol and ibuprofen during routine health care or a non-intrusive examination for research purposes.
Medical research is research in relation to the diagnosis, maintenance or treatment of an existing medical condition or to which a person is at significant risk of being exposed and includes experimental medical treatment. For example, an attorney could consent to a person’s participation in a clinical trial involving a drug usually used for a particular medical condition but trialled as a treatment for a different medical condition.
There are a number of safeguards and strict processes incorporated within the legislation to ensure decisions made by an attorney about a principal’s participation in medical research adhere to particular standards and to avoid potential abuse by attorneys.
The safeguards
For starters, a pre-requisite to any decision regarding low-risk research or medical research is that the research must be approved by a human research ethics committee acting in compliance with the National Statement on Ethical Conduct in Human Research (2007). The attorney must also follow the ‘decision-making’ principles set out in the legislation.
For decisions specifically relating to medical research, the research must also satisfy the following:
- an independent doctor must assess the possibility of the principal regaining capacity before the principal may meaningfully participate in the research; and
- the attorney must make an assessment about the potential benefits to the principal and any costs to consenting to the principal’s participation in the research.
If an attorney requires any assistance in complying with the above process, they are able to apply to the ACT Civil & Administrative Tribunal (ACAT) to seek guidance.
If there is any doubt about an attorney’s decision to authorise the principal’s participation in low-risk research or medical research, the law allows an ‘interested person’ (eg. a relative) to apply to the ACAT for a review of the attorney’s decision.
What about Enduring Powers of Attorney made prior to 1 September 2016?
If you have appointed an attorney to make decisions on your behalf in relation to health care matters before the new amendments came into effect- that power now extends to decisions in relation to medical research matters. You do not need to update your existing Enduring Power of Attorney unless you would like to specifically exclude an attorney from consenting to your participation in low-risk research or medical research or if you wish to include particular conditions or limitations on their power to do so.
Enduring Powers of Attorney signed on or after 2 September 2016 should be prepared using the new prescribed form.
Following the changes, lawyers are required to explain the meaning of ‘medical research matters’ to you, obtain your instructions about whether you wish to give that power to your attorney/s and, if so, any conditions and limitations you wish to place on the power.
If you would like advice in relation to an existing Enduring Power of Attorney made prior to 2 September 2016 or you wish to create an Enduring Power of Attorney which specifies your wishes in relation to decisions about medical research matters, please contact a member of our Wills & Estates team on (02) 6212 7600 or via email: estates@ddcslawyers.com.au.
