What Is Substitute Decision-Making in Aged Care?
Substitute decision-making refers to the process by which a person authorised under law makes decisions on behalf of someone who does not have the cognitive capacity to make those decisions independently. In aged care, this most commonly arises when a consumer has been assessed as lacking decision-making capacity due to dementia, acquired brain injury, or another condition affecting cognition.
The substitute decision-maker does not replace the consumer's voice. Their role is to make decisions the consumer would have made, based on what is known about the consumer's values, preferences, and wishes. This is sometimes called the substituted judgment standard, and it differs from the best interests standard, which asks what a reasonable person in the consumer's position would want. Australian law generally favours substituted judgment where possible.
Why This Framework Matters for Aged Care Compliance
Under the strengthened Aged Care Quality Standards, providers must demonstrate that care decisions are made with proper consent. When a consumer lacks capacity, the provider cannot simply proceed without formal authority. Acting on the instructions of a family member who has no legal appointment, or failing to identify that a consumer lacks capacity, creates serious compliance risk and may constitute a breach of consumer rights.
The Aged Care Quality and Safety Commission expects providers to have documented processes for identifying decision-making capacity, appointing or recognising substitute decision-makers, and recording all decisions made on a consumer's behalf. These records are reviewed during accreditation audits and during any investigation into a consumer complaint or reportable incident.
Types of Substitute Decision-Makers
The categories of substitute decision-maker vary between Australian states and territories, but the following roles are common across most jurisdictions.
Enduring Power of Attorney
An enduring power of attorney (EPOA) is a legal document in which a person nominates another to make financial and, in some states, personal and health decisions on their behalf if they lose capacity. The document must have been made while the person still had capacity, and it must be in the form required by the relevant state or territory legislation. In aged care, EPOAs are among the most common forms of legal authority a provider will encounter.
Enduring Guardian
An enduring guardian is appointed to make lifestyle, medical, and care decisions on behalf of a person who lacks capacity. Not all states use the same terminology: in Queensland this role is covered under the EPOA framework for personal matters, while other states have separate enduring guardian appointments. Providers should verify the applicable legislation for each state they operate in.
Tribunal-Appointed Guardians
When no enduring appointment has been made, a state or territory tribunal (such as VCAT in Victoria, NCAT in New South Wales, or QCAT in Queensland) can appoint a guardian or administrator. Public Guardian and Trustee offices may also step into these roles where there is no suitable person available. Tribunal orders define the scope of the guardian's authority, and providers must act within those boundaries.
Statutory Decision-Makers
In some states, legislation creates a hierarchy of default decision-makers for health decisions when no formal appointment exists. This hierarchy typically runs from spouse or partner, through adult children, to parents and siblings. However, this hierarchy applies only in specific circumstances defined by legislation, and providers should not assume it applies universally without checking the relevant state rules.
Decision-Making Capacity Assessment
Before invoking substitute decision-making arrangements, a provider must have a reasonable basis for concluding that the consumer lacks capacity for the specific decision at hand. Capacity is decision-specific and time-specific: a consumer may have capacity to choose what to eat for breakfast but not to consent to a complex medical procedure. A fluctuating capacity condition means that assessments may need to be repeated as circumstances change.
Capacity assessments in aged care are generally conducted by registered nurses, allied health professionals, or medical practitioners, depending on the complexity of the decision. The Advance Care Planning Policy Template from Governa outlines how to document capacity considerations within the advance care planning process, which is often where these issues first surface.
Medication Consent and Substitute Decision-Making
Medication consent is one of the most common areas where substitute decision-making rules apply in aged care. A consumer who lacks capacity to consent to their medication regime requires that a legally authorised person provide that consent on their behalf. This is not a matter of convenience or assumed family authority: it is a legal requirement.
Providers should review their Consent for Medication Policy to ensure it specifically addresses the steps required when the consumer cannot provide consent, including how to identify and document the authority of the substitute decision-maker and how to record decisions made. Medication decisions made without proper authority can constitute chemical restraint if they affect the consumer's behaviour or level of consciousness without valid consent.
Documenting Substitute Decision-Making
Documentation is the provider's primary evidence that consent was properly obtained. For each significant decision made by a substitute decision-maker, records should capture: the name and role of the substitute decision-maker, the legal basis for their authority (document type and date), the nature of the decision, the information provided to the substitute decision-maker, and the decision reached.
The resource on Aged Care Consent Documentation covers these requirements in detail and provides practical guidance on how to structure consent records across different care settings. Poor documentation is one of the most common findings in Commission audits related to consent.
Consumer Rights and Advocacy
Even where a substitute decision-maker holds legal authority, the consumer's rights do not disappear. Providers must still involve the consumer in discussions about their care to the extent their capacity allows, and must treat the consumer with dignity and respect regardless of who holds formal decision-making authority.
Where a consumer or their substitute decision-maker disagrees with a provider's care decisions, or where there are concerns that a substitute decision-maker is not acting in the consumer's interests, providers should facilitate access to advocacy. The Advocacy and Access Policy provides a framework for documenting this process and ensuring consumers know their options. The Consumer Rights, Dignity and Choice Policy sets the broader context for upholding consumer rights throughout the substitute decision-making process.
Privacy and Information Sharing
Substitute decision-makers are entitled to receive the information they need to make informed decisions on behalf of the consumer. However, this does not mean unlimited access to all consumer records. Providers should have clear protocols for what information is shared, in what form, and with what purpose. The OAIC Privacy Guidance for Aged Care is a relevant reference for understanding how privacy obligations interact with information sharing in care settings.
Building Policy That Covers All Scenarios
Substitute decision-making is complex because it sits at the intersection of state and territory law, Commonwealth aged care regulation, and individual consumer circumstances. A provider operating in multiple states must understand how the rules differ across jurisdictions. The Governa Policy Guides offer structured guidance on building policy frameworks that are robust enough to handle this complexity without overwhelming frontline staff with legal jargon.
