• Using such information to make the decision; or
• Communicating his or her decision in any manner; or
• Making the decision about his or her medical treatment because he or she is comatose or otherwise
unconscious.
If a person does not have the capacity to make a medical decision, the role will go to a ‘responsible person’,
determined in the following order:
1. A guardian/substitute decision maker appointed to make medical decisions.
2. A person who is legally married to the patient;
3. An adult domestic partner of the patient;
4. An adult related to the patient by blood or marriage;
5. An adult of Aboriginal or Torres Strait Islander descent who is related to the patient according to
Aboriginal kinship rules or Torres Strait Islander kinship rules;
6. An adult friend;
7. An adult charged with the person’s ongoing day-to-day care and well-being (such as a Director of Care
in aged or supported care) who is available and willing to make the decision (does not include chemical
restraint).
8. SACAT.
Capacity Test Generally
Step one: is the person able to make the decision based on the following criteria?
• Can they understand the facts and main choices?
• Can they weigh up the choices and make the decision?
• Can they communicate that decision?
• Is the decision the person wants to make consistent with the way that person has lived their life, their
core values and what they would have decided if they had capacity?
Step two: does the decision make sense? If yes, it should be implemented. If the decision does not make
sense then further action may be necessary, such as talk to other significant people involved in the person’s
life.
Family Checklist for Principal Carers
Need a Will
Family members who are keen to put in place supports for a family member with intellectual disability
upon their death must ensure they have an up to date Will that covers the future arrangements for a family
member with intellectual disability.
What happens if there is no Will?
Having no Will creates uncertainty and possibly leaves a mess for those left behind.
In some situations, the Public Trustee takes control of the money and assets and decides how the money is
spent.
Get a Will
See a lawyer who understands the issues faced by people who want to make sure that there are proper
arrangements for their family member with intellectual disability after they’ve died. The lawyer needs to
be able to work with the family to develop a solution that enhances and protects the future of that family
member.
EBL QUARTERLY NEWSLETTER 9