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NSW Edition | COVID-19 vaccine– who decides if you get vaccinated when you don’t have capacity to decide yourself?

Ilana Kacev

With the rollout of the COVID-19 vaccination program now underway in Australia, there has been much debate amongst people as to whether or not they intend to get vaccinated.  But what happens if you don’t have capacity to make that decision, and instead it has to be made on your behalf? Who can decide for you?

In NSW, the answer is:

  1. an enduring guardian appointed under an Appointment of Enduring Guardian (AEG);
  2. a doctor, under an Advanced Care Directive (ACD) or in an emergency; or
  3. a guardian appointed by the NSW Civil and Administrative Tribunal.

The role of a guardian under an AEG

An enduring guardian is a person you appoint to make healthcare, lifestyle and medical and dental decisions on your behalf in the event you become unable to make those decisions for yourself. The guardian can be anyone you trust, such as a spouse, family member or friend.

Your guardian must act in accordance with your known preferences and values when making any such decisions for you and must also promote your personal and social wellbeing in the process.


If you have an ACD

An ACD (also known as a living will) sets out your values and preferences with respect to medical treatment in the event that you do not have capacity to make those decisions for yourself. Should you have both an ACD and an AEG, a medical practitioner is required to consider the directives in the ACD before taking instructions from a guardian. If clearly set out, wishes expressed in an ACD override the wishes of your family and friends when it comes to your medical treatment.

“Medical treatment” means, amongst other things:

“Medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by or under the supervision of a medical practitioner”.

Administration of a vaccine would clearly fall under “prophylactic care carried out by or under the supervision of a medical practitioner”.


If you don’t have an AEG or an ACD

In these circumstances, a medical practitioner can still administer medical treatment in cases of emergency. However, if you lose capacity without appointing a guardian or having an ACD in place, and the vaccination is not deemed to be emergency medical treatment, your family and/or friends will have to apply to the NSW Civil and Administrative Tribunal so that a guardian can be appointed to then make the decision for you. This can be a long and costly exercise and until a guardian is appointed, non-urgent decisions about your medical care cannot be made.

In the event of a dispute between family members or friends about who should be appointed as your guardian, NSW Trustee & Guardian (a public trustee) can be appointed instead.


Summary:

When deciding whether or not you wish to have the COVID-19 vaccine, you should consider:

  1. preparing an Appointment of Enduring Guardian and making known to your chosen guardian what your values and preferences are; and
  2. updating, or having an ACD prepared. 

How we can help

For any queries arising out of this alert, or for assistance with your estate planning needs, please contact Jana Sosner at jsosner@rk.com.au or Clare Hesbrook at chesbrook@rk.com.au or by phone on 02 8987 0000 for further advice.

To read our recent alert discussing whether employers can require workers to have COVID-19 vaccinations, click here.

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