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Can a Health Professional be your Attorney under your Enduring Power of Attorney?

People can form close relationships with their doctors and other health professionals, especially after years of trusted advice. This can, on occasion, lead to someone requesting that their doctor or other health professional act as their Attorney under an Enduring Power of Attorney (‘EPOA’). However, it is important to note that even if a doctor or health professional agrees to this arrangement, they may not be considered a valid Attorney and may therefore not be able to act on a person’s behalf.

Power of Attorney Act

The Powers of Attorney Act 1998 (Qld) (‘the Act’) prohibits a person’s health provider from acting as an attorney for them. A health provider is defined as a person who provides health care in the practice of a profession or the ordinary course of business (the specific example of a dentist is offered in the Act).

Health care is further elaborated on as the care or treatment of, or a service or a procedure for, the person making the EPOA (‘the Principal’) in order to diagnose, maintain, or treat their physical or mental condition, which is carried out by, or under the direction or supervision of, a health provider. This definition includes the withholding or withdrawal of a life-sustaining measure for the Principal, if the commencement or continuation of the measure would be inconsistent with good medical practice. There is no clear definition for ‘health provider’, although the QCAT case of MDC [2014] QCAT 338 classified a practice manager of a GP medical centre as a ‘health provider’ for the purposes of the Act and thus ineligible to act as an Attorney under an Enduring Power of Attorney. This suggests that the net for who is considered to provide health care is quite wide.

However, it is important to note that the Act states that health care does not include first aid, a non-intrusive examination for diagnostic purposes, the administration of a non-prescription, ordinarily self-administered pharmaceutical drug for the drug’s recommended purpose and at the recommended dosage or psycho-surgery.

Other legislation

There is some limited guidance in other legislation regarding who is classified as a ‘health provider’. For example, the Health Ombudsman Act 2013 (Qld) provides that a health service provider is an individual who provides a service that maintains, improves, restores or manages people’s health and well-being, as well as any service prescribed under a regulation to be a health service (per sections 7-8). The Health Ombudsman Act also refers to the Health Practitioner Regulation National Law (Queensland) 2009 for further definitions of health services.

The Health Practitioner Regulation National Law (Queensland) in section 5 states that health service includes services that are provided by registered health practitioners (defined as individuals who practice a health profession). The list of professions defined as ‘health professions’ is very wide and includes Aboriginal and Torres Strait Islander health practice, Chinese medicine, chiropractic, dental (including the profession of a dentist, dental therapist, dental hygienist, dental prosthetist and oral health therapist), medical, medical radiation practice, midwifery, nursing, occupational therapy, optometry, osteopathy, para-medicine, pharmacy, physiotherapy, podiatry and psychology.

Interestingly, a dentist (the only listed example in the Act of a health provider that is specifically barred from acting as an attorney) is considered a registered health practitioner and therefore health service provider as well. As such, it may be reasonable to assume that the above list of professions may also be restricted from acting as a patient’s Attorney.

Ethical concerns

It is also important to note that a health professional may also be subject to a code of conduct prescribed by their regulating body, which may have rules that could potentially bar them from acting as an attorney under an EPOA for a patient. Accepting such an appointment may open a health professional up to disciplinary proceedings, especially if a person’s EPOA is later disputed.

Conclusion

If you have are considering appointing a health professional as your attorney under your EPOA, or if you are interested in putting in place an EPOA, the experienced team at Bell Legal Group can discuss your wishes with you and advise and assist you in putting in place an appropriate EPOA.

For further information and assistance on any estate planning or estate administration matter, please contact a member of our experienced Wills, Trusts and Estate Planning Team at Bell Legal Group on (07) 5597 3366 or email law@belllegal.com.au.

This publication was prepared by Josephine Vernon, solicitor. It is for information only and is not legal advice.