Changes to medical powers of attorney

From 12 March 2018, the new Victorian Medical Treatment Planning and Decisions Act 2016 will become effective. The new laws will replace the previous laws dealing with medical treatment decisions and allow people to:

• make binding directives regarding their future medical treatment
• permit medical treatment to be administered that reflects that person’s individual preferences and values
• appoint a medical treatment decision maker to make medical treatment decisions when a person has lost decision making capacity

Current Victorian powers of attorney and advanced care plans

In Victoria there are currently two enduring powers of attorney:

• an enduring power of attorney – medical treatment which allows an attorney to give and withhold consent to medical treatment decisions.
• an enduring power of attorney that allows an attorney to make decisions regarding financial, legal matters and personal matters. From 12 March 2018, attorneys under this document will not be able to make personal decisions relating to health care.

All enduring powers of attorney – medical treatment documents executed before 12 March 2018 will remain valid and effective and do not need to be changed as a result of the new laws.

You can also make an advanced care plan where a person can outline their preferences and values for medical treatment, however, this is currently not a binding document.

What are the changes?

From 12 March 2018, Victorians will be able to:

• Appoint a medical treatment decision maker who will make medical treatment decisions when they no longer have decision making capacity (this replaces the existing enduring power of attorney – medical treatment document).

More than one decision maker can be appointed, however only one person can act at any given time.  This 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.

When acting, a medical treatment decision maker must first consider any relevant instructional directive (which will override their decision making ability) or a values directive, and also consider any other expressed relevant preference made by the person.

• Make an advanced care directive regarding medical treatment to take effect once they have lost capacity.  There will be two different types of directives:
  • a binding instructional directive which will provide specific binding directives about medical treatment a person consents to or refuses, for example, ‘I consent to a bypass operation under the following circumstance…’
  • a non binding values directive which will describe a person’s views and values for medical treatment, for example, ‘If I am unable to recognise my family and friends and cannot communicate, I do not want receive medication to prolong my life’

There are a number of formal requirements that must be met in order to make a valid advanced care directive, and a person will need to attend a health care professional to complete these directives.

If a healthcare facility is aware of an advanced care directive having been made by a person, they are obliged to keep a copy of the directive on a person’s medical record.

A binding instructional directive must be followed except in very limited circumstances.

• A person can also appoint one support person to assist them to make decisions while they have decision making capacity.  This person does not have power to make decisions, however, can have access to a person’s medical file and can assist in making, communicating and giving effect to a person’s medical treatment.

How can Hall & Wilcox help?

These changes give more options and can provide more certainty, regarding medical treatment decisions. Given these changes, and the significant changes to financial powers of attorney and appointments of enduring guardians in 2015, clients who have older powers of attorney may want to consider putting in place new powers of attorney. This may also provide a good starting point for a broader review of succession planning arrangements.

This link contains a summary of the changes that you can pass on to your clients.