Enduring Power Of Attorney & Medical Decision Makers | Victoria
Planning for the Future
Illness or injury can make it difficult to manage your affairs or make decisions about medical treatment. Planning ahead lets you choose who may make certain decisions for you and record what matters most to you.
In Victoria, three documents can play different roles: an enduring power of attorney, an appointment of a medical treatment decision maker, and an advance care directive.
What is an enduring power of attorney?
An enduring power of attorney lets you appoint one or more trusted people, called attorneys, to make decisions about your financial matters, personal matters, or both. Financial matters can include paying bills and dealing with property. Personal matters can include decisions about services and where you live.
You must be at least 18 and have decision-making capacity to make the appointment. The authority you give can be limited to particular matters or made subject to conditions and instructions. An attorney under an enduring power of attorney cannot make medical treatment decisions for you unless they are also your medical treatment decision maker.
When does an attorney's authority begin?
You can specify when an attorney's power starts. It might start immediately, when you lose decision-making capacity for the relevant matter, or at another time or in circumstances stated in the document. You may set different starting points for financial and personal matters.
An enduring power of attorney continues if you later lose capacity. While you have the capacity to do so, you can revoke it or make a new appointment. A later appointment, a decision by the Victorian Civil and Administrative Tribunal (VCAT), or your death may also end the power.
If the authority starts while you still have capacity, you remain able to make your own decisions. Your attorney should act at your direction when assisting you.
Choosing an attorney and understanding their duties
Choose someone you trust who understands your wishes and is willing and able to carry out the role. An attorney must act honestly, diligently and in good faith, exercise reasonable skill and care, keep accurate records, and manage conflicts of interest in accordance with the law.
If you cannot make a particular decision, your attorney must give appropriate effect to your wishes, take reasonable steps to involve you in the decision and promote your personal and social wellbeing. The attorney's role is to exercise the authority you gave them, within its limits.
You can appoint more than one attorney. They may be authorised to act jointly, jointly and severally, severally, or by majority. The practical effect is different in each case, so consider how the arrangement will work if someone is unavailable or the attorneys disagree.
Appointing a medical treatment decision maker
A separate appointment allows you to choose who will make medical treatment decisions if you cannot make a particular decision yourself. Your medical treatment decision maker must make the decision they reasonably believe you would have made, taking account of your relevant values and preferences.
You can appoint more than one person in order of preference, but only one person acts as medical treatment decision maker for a particular decision. If no appointment applies, Victorian law sets out who may act, including a relevant VCAT-appointed guardian or, in the prescribed order, certain family members or a primary carer.
Valid appointments made before 12 March 2018 under earlier medical enduring power of attorney and related arrangements continue to be recognised. If you have an older document, it is sensible to have it reviewed alongside any new appointments.
What is an advance care directive?
An advance care directive records your wishes for future medical treatment if you lose capacity to make the relevant decision. It can contain:
an instructional directive, which states whether you consent to or refuse particular medical treatment; and/or
a values directive, which records the values and preferences that should guide future treatment decisions.
When a valid instructional directive applies to a particular treatment decision, the health practitioner must follow it. If there is no relevant instructional directive and you cannot make the decision, your medical treatment decision maker makes it, first considering any valid and relevant values directive and then other relevant preferences and values.
Putting your plans in place
These documents work together but serve different purposes. Discuss your wishes with the people you appoint, make sure they know where your documents are kept, and review your arrangements when your circumstances change. Each document has formal signing and witnessing requirements.
Baird & McGregor can help you prepare documents that reflect your circumstances and explain the responsibilities involved. Contact our team to discuss planning for the future.