Most of us assume we will always be able to speak for ourselves. Yet a stroke, an accident, dementia or a serious illness can change that quickly. A loss of capacity means you may no longer be able to make, or communicate, important decisions about your health, your living arrangements or your money. Understanding what happens next, and what you can put in place now, is one of the kindest things you can do for yourself and the people you love.
This article explains in plain language what a loss of capacity can mean in Australia, who steps in, and how planning ahead helps your wishes guide the decisions made on your behalf.
What does "capacity" actually mean?
Capacity is not about intelligence or age. In general terms, a person has capacity to make a decision if they can understand the information involved, remember it long enough, weigh up the options and communicate their choice in some way.
A few important points are worth knowing:
- Capacity is decision-specific. Someone may be able to decide what to eat or wear, but not be able to make a complex medical or financial decision.
- It can fluctuate. Infection, medication, delirium or fatigue can affect capacity for a time, and it may return.
- It is presumed. Adults are generally presumed to have capacity unless there is reason to think otherwise.
Assessments of capacity are usually made by health professionals, and the specific legal tests differ between states and territories.
Loss of capacity and medical treatment decisions
When a person can no longer make their own medical treatment decisions, doctors still need consent for most treatment. The question becomes: who gives it, and how do they know what you would want?
If you have completed an Advance Care Directive, it can do two important things. It can record your values and future health care wishes, and it can appoint one or more substitute decision-makers to speak for you. Health professionals will generally look to that document and to the people you have named.
If you have not, the law in your state or territory sets out who can consent. In South Australia, for example, medical treatment decisions usually fall to a "person responsible" under the Consent to Medical Treatment and Palliative Care Act 1995 (SA). This might be a spouse, a relative or a close friend, depending on the circumstances. They may not be the person you would have chosen, and they may have to guess at your wishes.
The role of a substitute decision-maker
A substitute decision-maker is someone you formally appoint to make health, personal or lifestyle decisions for you when you can't. Their role is to make the decision they believe you would make, guided by what you have told them and what you have written down. It is a serious responsibility, and they will find it far easier if you have talked openly beforehand.
Our advance care planning page explains substitute decision-makers and Advance Care Directives in more detail.
What happens to your money and property?
This is where many families are caught out. An Advance Care Directive covers health and personal matters, but it does not cover money. Financial and property decisions usually require a separate document, commonly an Enduring Power of Attorney, which allows someone you trust to manage your financial affairs if you lose capacity.
Without one, your family may find they can't pay bills from your accounts, manage investments or deal with property on your behalf, even if they are your spouse or adult children. A solicitor can explain the options in your state and help you prepare the right documents.
If you would like to understand the difference between these documents and a will, our article on the difference between a will and an Advance Care Directive sets it out clearly.
When there are no documents in place
If someone loses capacity without an Advance Care Directive or an Enduring Power of Attorney, families can still find a way forward, but it is usually slower and more stressful.
In South Australia, an application may need to be made to SACAT (the South Australian Civil and Administrative Tribunal) for a guardian to make personal and health decisions, or an administrator to manage finances. Other states and territories have their own tribunals and processes. These applications take time, involve forms and hearings, and the person appointed may not be the one you would have picked.
We have seen families go through this at an already distressing time. Much of that strain can be avoided with some planning while you are well.
Our guided 90-minute family conversation helps you explore your values, choose your substitute decision-makers and finish with your state or territory Advance Care Directive form completed and ready to be witnessed. Book an Advance Care Planning Consultation
How to plan ahead for a loss of capacity
Planning ahead doesn't need to be overwhelming. A practical starting point looks like this:
- Reflect on what matters to you. Think about your values, the outcomes you would find acceptable, and where you would want to be cared for.
- Talk to the people close to you. Share your wishes with family and anyone you might appoint.
- Choose your substitute decision-makers. Pick people who will honour your wishes, even under pressure.
- Complete your state's Advance Care Directive. Use the official form for where you live and follow its witnessing requirements.
- Arrange financial authority. Speak with a solicitor about an Enduring Power of Attorney.
- Share copies. Give copies to your decision-makers, your GP and anyone else who may need them.
- Review regularly. Revisit your documents after major life or health changes.
If you are not sure how to raise the topic with family, our guide on how to start an advance care planning conversation may help.
A note for families supporting someone now
If a parent or partner is already showing signs of memory loss or confusion, it is worth acting sooner rather than later. A person may still have capacity to make some decisions, including completing an Advance Care Directive, even after a diagnosis. Their doctor and solicitor can advise on this. Gathering important documents and knowing who to call will also ease the pressure if things change. Our estate readiness support can help families get organised.
Where to from here
A loss of capacity is something none of us like to imagine, but planning for it is an act of care. It keeps your voice at the centre of your medical treatment decisions and gives your substitute decision-maker the clarity they need.
Care & Legacy Advisors was founded by Jane Rooke, a Registered Nurse with 20 years in aged care senior management, who has guided hundreds of families through advance care planning. We are based in Adelaide, offer in-person sessions locally (see advance care planning in Adelaide) and provide telehealth consultations nationally. If you prefer to start on your own, the self-guided Advance Care Planning Workbook is a helpful companion to your state's official form. Care & Legacy Advisors are happy to go through the process alongside you.