Advance Personal Planning

14 Sep 2016 - 16:44 | Version 3 |

Contributed by MoniqueHurley and PhilippaMartin and current to 1 May 2016

The Advance Personal Planning Act 2013 (NT) (APP Act) enables people to appoint alternative decision makers for care, welfare and financial decisions if they lose decision-making capacity. The person must have the capacity to appoint someone (planning capacity) at the time they make the appointment.

The APP Act replaces the Power of Attorney Act 2014 as the legislation that enables adults to appoint decision makers to manage their finances. All new decision makers appointed in relation to financial and property matters must be appointed under the APP Act. Powers of attorney created under the Power of Attorney Act remain in effect.

Information about the APP Act and making advance personal plans is available at https://nt.gov.au/law/rights/advance-personal-plan

If you are considering making an Advance Personal Plan you should consider all the options carefully. It is a good idea to discuss your wishes with your family and especially those people you might want to appoint as a decision maker. It is also a good idea to discuss the plan with an independent person such as a lawyer.

Advance personal plans

The person who is the subject of the decisions is referred to in the APP Act as the adult.

Section 8 of the APP Act allows adults to make an advanced personal plan (APP) covering any or all of the following:
  • make consent decisions about future health care action for the adult;
  • set out the adult's views, wishes and beliefs as guidelines for the decision maker (advance care statement); or
  • appoint one or more persons as decision makers for that adult if he or she loses decision-making capacity.
An APP must be in writing and be signed by the person and witnessed by an authorised witness. The Advance Personal Planning Regulations set out the minimum requirements for an advance personal plan. These are the full name date of birth and residential address of the adult and the full name, residential address and any phone number or email address of the decision maker(s). A form which can be used to prepare an APP is on the NT government website https://nt.gov.au/law/rights/advance-personal-plan

Advance Personal Plans can be registered with the Office of the Public Trustee. If the plan appoints a decision maker who has the power to see or buy property, the plan must be lodged at the Land Titles Office.

Powers of alternative decision makers

Section 16 of the APP Act allows an adult to appoint alternative decision makers in the areas of
  • care and welfare (including health care, accommodation, relationships with other people)
  • property and financial affairs (including banking and investment decisions, the taking out of insurance and legal matters).
If the APP does not specify the matters over which the decision maker has authority, the decision maker will have the power to make decisions about all matters.

The adult can also specify the circumstances in which the decision maker's authority will be effective - at all times, in stated circumstances or at all times except in stated circumstances. For example an adult might appoint their partner to make decisions while they are alive and have capacity and then appoint their adult child.

Decision makers must be adults but do not have to be individuals. The Public Trustee, the Public Guardian and trustee companies can be appointed. Decision makers must follow the decision-making principles in s22 of the APP Act. The principles require decision makers to consult the adult where possible, consider the decision they would have made by following any guidelines in the APP, take into account any other known views of the adult and above all make decisions in the adult's best interests.

Decision makers do not have the authority to make decisions unless the adult has impaired decision-making capacity. Section 6 of the APP Act defines decision-making capacity and impaired decision-making capacity. Decision-making capacity is defined in relation to a particular matter (e.g. health care or finances) and requires a person to be able to
  • understand and retain information about the matter and
  • weigh that information in order to make decisions and
  • communicate that decision.

Local Court

Any disputes in relation to the validity, status or powers set out in an Advance Personal Plan can be heard and determined by the Local Court. The procedure for taking court action with respect to issues arising under the APP Act is set out in Division 5 of the APP Act.

Adults may list the kinds of health care they will consent or will not consent to in an APP. These are called consent decisions and can be made in relation to health care to be provided in a particular instance, a course of health care to be provided over a period of time or generally about all health care action. It can be made to apply in particular circumstances or in all circumstances. Examples of advance consent decisions are decisions about transplants, blood transfusions and life support. Advance care statements may be specific consent decisions or may be statements of general principle which will guide decision makers. An example of an advance care statement is "In all decisions about my health care I want my religious beliefs as a Catholic to be taken into account".

Where a decision maker has been appointed in relation to health care action, the APP Act sets out the requirements which must be followed before they can make a decision consenting to treatment - an informed consent decision (s43 of the APP Act). The decision maker must be willing to make the decision, be reasonably available, understand and act in accordance with the decision-making principles, have all the information necessary to make the decision and have the ability to make the decision voluntarily and without undue influence from any other person.

If there is no alternative decision maker who has been appointed or who is willing to make the informed consent decision, the Local Court has the authority to consent to health care action on behalf of the adult.

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