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Changes to the Medical Power of Attorney Legislation

Michael Gorton AM

Is your estate plan complete? New laws provide for comprehensive appointment of medical treatment decision makers

Are you, your clients or a family member considering Enduring Powers of Attorney? The laws have changed for medical treatment decision making, there are now more options available for the appointment of medical decision makers.

On Monday 12 March 2018 the new Victorian Medical Treatment Planning and Decisions Act 2016 became effective, replacing the previous Victorian legislation dealing with medical treatment decisions and the appointment of medical attorneys.

Medical Decision Maker 

Under the previous legislation, individuals could execute an ‘enduring power of attorney – medical treatment’ which authorises a medical attorney to give and withhold consent to medical treatment decisions if the donor was not capable of making those decisions themselves. The donor could appoint one attorney, and one alternate attorney to act if the first-appointed attorney was unable or unavailable to act.Victorians can now appoint a ‘medical treatment decision maker’ who will make medical treatment decisions when the donor no longer has decision-making capacity. 

Whilst only one person can act at any given time, the new Act allows for more than one decision maker to be appointed – in effect, the multiple appointments will work as a list, with the first person on the list who can be contacted and is able to act being the decision maker. If the first person on the list cannot be contacted or cannot act, then the next available person on the list will be the decision maker.

Advanced Care Directive 

Under the new Act, Victorians can also make an advanced care directive regarding their medical treatment, which will take effect once they are no longer capable of making such decisions themselves. There are two different types of directives available:

  • a Binding Instructional Directive which provides specific binding directives about medical treatment that a person consents to or refuses. This form of directive must be followed by decision makers or medical professionals except in very limited circumstances; and
  • a Non-Binding Values Directive which describes a person’s views and values for medical treatment.

  • A number of formal requirements apply to the execution of a valid advanced care directive, which must be prepared and completed with the assistance of a health care professional.The new rules also affect healthcare facilities, who are obliged to keep a copy of an advanced care directive on a person’s medical record if they are aware that such a directive has been made by the person. There are also serious consequences for medical professionals who fail to act in accordance with Binding Instructional Directives.

    Medical Decision Support Person 

    The new legislation also makes provision for Victorians to appoint one support person to assist them to make decisions while they have decision making capacity. This support person can gain access to the supported person’s medical file, can assist in making, communicating and giving effect to a person’s medical treatment, but they do not have the power to actually make the medical decisions on behalf of the supported person.

    Existing Medical Powers of Attorney 

    The appointment of a medical decision maker from 12 March 2018 onwards must be made in the new form, however it should be noted that all medical enduring powers of attorney executed prior to 12 March 2018 will remain valid and effective and do not need to be updated or re-signed as a result of the new laws.

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