Advance Personal Planning

Contributed by MoniqueHurley and PhilippaMartin and current to 1 May 2016

The Advance Personal Planning Act 2013 (NT) (APP Act) enables people to make plans about how decisions are to be made for them if they have impaired decision-making capacity. The document containing the person's plan is known as an 'advance personal plan'.

Advance personal plans under the APP Act replace the comparable ‘enduring power of attorney’, which was previously made under the Power of Attorney Act 1980 (NT). From 17 March 2014, a person can no longer make an enduring power of attorney, however, an enduring power of attorney executed before 17 March 2014 remains in effect.

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.

If a person with impaired decision-making capacity does not have an advance personal plan, decisions about their personal and/or financial matters may be addressed under adult guardianship.

Advance personal plans

An adult may make an advance personal plan (APP) which:

• makes consent decisions about future health care action for the adult (advance consent decisions);
• sets out the adult's views, wishes and beliefs as the basis on which the adult wants anyone to act if they make decisions for the adult (advance care statements); and/or
• appoint one or more persons as decision makers for that adult if their decision-making capacity becomes impaired (decision makers).

An adult must have planning capacity when they make an APP, which means they:

• have decision-making capacity for making an APP; and
• do not have an adult guardian.

An APP must be in writing and, at a minimun, outline the following details about the adult:

• the adult's full name;
• the adult's date of birth; and
• the adult's residential address.

If the adult is appointing any decision maker(s), the APP must, at a minimum, outline the following details about the decision maker(s):

• the decision maker's full name;
• the decision maker's residential address;
• the decision maker's phone number (if any); and
• the decision maker's email address (if any).

An adult must sign their APP in the presence of an authorised witness. If the adult is unable to sign, they may direct a person to sign the APP in the presence of both the adult and the authorised witness. Authorised witnesses include Justices of the Peace, Commissioners for Oaths, police officers, legal practitioners, health professionals, accountants, chief executive officers of local government authorities, social workers, and Principals of schools in the Northern Territory.

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).

APPs may be registered with the Office of the Public Trustee. If the APP appoints a decision maker who has authority to make decisions about real property, the plan must be registered with the Land Titles Office.

Decision makers

An adult may appoint any of the following as their decision maker:

• another adult (including an individual who is under 18 years of age to become a decision maker when that individual reaches 18 years of age);
• a licensed trustee company;
• the Public Trustee; or
• the Public Guardian.

An adult may appoint their decision maker(s) for matters relating to the adults:

• care or welfare (including health care, accommodation, relationships with other people); or
• property or 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 APP might appoint their partner to make decisions while they are alive and have capacity and then appoint their adult child.

A decision maker(s) does not have the authority to make decisions for a matter under the APP unless the adult has impaired decision-making capacity for that matter. This means the adult is experiencing an impairment in the following:

• understanding and retaining information relevant to the decision;
• weighing information relevant to the decision in order to make the decision;
• communicating the decision in some way; or
• understanding the effect of the decision.

Decision makers must follow the decision-making principles in the APP Act, which requires the decision maker to:

• give effect to any advance care statement made by the person;
• if the adult has not made an advance care statement about the matter, the decision maker must exercise authority in the way they believe on reasonable grounds the person would do in the circumstances (taking into accout their personal knowledge of the person and the adult's current and previously stated decisions, views, wishes and objections about the matter);
• if the decision maker forms a belief on reasonable grounds regarding what the adult would do in the circumstances, they must exercise authority in that way, even if doing so may not be in the person's best interests (however, this does not requiring giving the adult addictive substances, without therapeutic benefit, that the person would use if the adult had legal capacity - for example, cigarettes);
• if the decision maker is unable to form a belief on reasonable grounds regarding what the person would do in the circumstances, the decision maker must exercise authority in the way they believe on reasonable grounds is in the best interests of the person.

In determining what is in the best interests of the person, the decision maker must:

• take into account all relevant considerations; and
• assess those considerations by giving each of them the weight the decision maker believes on reasonable grounds is appropriate in the circumstances.

The decision maker must exercise authority in a way that:

• is least restrictive of the adult's freedom of decision and action as is practicable; and
• provides the person with as much support as is practicable to make the person's own health care decisions.

Health care decisions

DO NOT USE - UPDATE IN PROGRESS - PLEASE NOTE, SUPERSEDED BY THE HEALTH CARE DECISION MAKING ACT 2023

A decision maker may have authority to make decisions to commence, continue, cease, or refuse health care for an adult. A decision maker's authority for health care decisions may be subject to the Health Care Decision Making Act 2023 (NT) (HCDMA).

Decision makers with authority fo health care decisions under an APP must be mindful of the HCDMA when making decisions relating to an adult's health care. This is because both the APP Act and the HCDMA (the Acts) apply to health care decisions, and the HCDMA prevails if the Acts are inconsistent.

The HCDMA provides a hierarchy of potential decision makers for the health care of an adult with impaired decision making capacity. Generally, a person with authority appointed by an advance personal plan or interstate equivalent ranks first as a potential health care decision maker for an adult with impaired decision making authority.

Health care is a broadly defined to mean any kind of health care. This includes:

• services provided by medical practitioners or other AHPRA registered health practitioners (for example, treatment requiring a doctor or dentist to do or supervise);
• hospitals services;
• mental health services;
• pharmaceutical services (for example, giving prescribed medications);
• ambulance services;
• community health services; and
• pathology services (for example, undertaking blood tests).

A decision maker cannot make or consent to ‘restricted health care’ decisions under the APP Act. Only NTCAT can make these decisions.

Conversely, a decision maker who is also a health care decision maker appointed under the HCDMA may consent to some restricted health care decisions if certain circumstances apply (see below).

Restricted health care

Restricted health care includes:

• actions that result in sterilisation;
• termination of a pregnancy;
• removal of tissue that won’t grow back for transplanting to another person;
• medical research or experimental health care for a condition that an adult either has or is of significant risk of being exposed;
• medical research or experimental health care intended to gain knowledge about a condition the adult has or had;
• health care that is not accepted as evidence-based or best practice by a substantial number of health care providers specialising in the relevant area of health care;
• electroconvulsive therapy; and
• any treatment that involves punishment (of any kind) to influence behaviour.

Generally, a decision maker has no authority, and cannot consent to, restricted health care for an adult. Despite this, a decision maker who is also a health care decision maker appointed under the HCDMA may, in some cases, consent to:

• sterilisation or the termination of pregnancy if the reason for the procedure is to treat an illness, injury or other organic malfunction and serious or irreversible damage to the adult's health is likely unless the procedure is performed; and
• clinical trials or the collection of information that is approved by a Human Research Ethics Committee registered with the National Health and Medical Research Council (NHMRC) and conducted in accordance with any NHMRC human research guidelines.

See section 30 of the Health Care Decision Making Act 2023 (NT) for ‘restricted health care', section 4 of the Transplantation and Anatomy Act 1979 (NT) for ‘non-regenerative tissue’, and the National Health and Medical Research Council website for the National Statement on Ethical Conduct in Human Research.

A health care decision maker should always seek legal advice before making any decision in relation to restricted health care.

Advance consent decisions and advance care statements

An adult may include the following in their APP:

• advance consent decisions, which outlines health care action to which they will and will not consent (for example, a direction not to resuscitate); and
• advance care statements, which provides guidance to any person making decisions for the adult (for example, a desire to pass away at home, rather than a hospice).

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.

Northern Territory Civil and Administrative Tribunal

The Northern Territory Civil and Administrative Tribunal (NTCAT) has jurisdiction to deal with matters under the APP Act. Proceedings are conducted in private and not open to the public, unless the NTCAT orders otherwise.