Enduring power of attorney (medical)

Alert: Medical Treatment Planning and Decisions Act

The MTPD Act will commence on 12 March 2018. This Act repeals the Medical Treatment Act 1988 (Vic) (“MT Act”). However, refusal of treatment certificates and appointment of medical enduring powers of attorney will remain valid. The reforms in this Act introduce two types of advance care directives:

instructional directives;

values directives.

For information about the new law, see https://dhhs.vic.gov.au and www.publicadvocate.vic.gov.au.

Overview

An enduring power of attorney (medical) is a written document by which you (the “appointor”) appoint another person (the “agent”) to be your medical attorney under section 5A(2) of the MT Act. This gives the agent the authority to make decisions about medical treatment on your behalf if you are unable to do so. You can also appoint an alternate agent, if your appointed agent is unavailable, dies or is incapacitated.

The document must take the form shown in schedule 2 of the MT Act. It must have two witnesses (you, your agent or alternate agent cannot be witnesses). One witness must be authorised to witness the signing of statutory declarations. When a person executes an Enduring Power of Attorney (Medical Treatment), any earlier Power of Attorney (Medical Treatment) given by that person ends (s 5A(2)(a)).

An enduring power of attorney (medical) only takes effect if you become incompetent to make decisions (s 5A(2)(b)). Your alternate agent only becomes your agent if your appointed agent is dead, incompetent or cannot be contacted (s 5A(2)(c)).Before an alternate agent can make any decisions, they must sign a statutory declaration giving details about the appointed agent’s unavailability, and the efforts made to find them (s 5AA).

Authority

The document gives your agent power to make any medical decisions that you can make, while you are competent to do so. This includes the right to refuse any medical treatment whatsoever, except for “palliative care” (which includes the provision of reasonable medical procedures for the relief of pain, suffering and discomfort, and the reasonable provision of food and water). In the case of Gardner; re BWV [2003] VSC 173, feeding a person through a tube into their stomach was found to be medical treatment, and not palliative care.

Refusal of treatment

For an agent to refuse treatment on your behalf, they must sign a Refusal of Treatment Certificate, which must take a particular form (sch 3 MT Act). An agent may refuse treatment on two grounds, either:

the medical treatment would cause you unreasonable distress, or

the agent believes on reasonable grounds that you, if competent, and after giving serious consideration to your health and wellbeing, would consider the medical treatment unwarranted.

In the certificate your agent acknowledges that they have been properly informed of and understand your health condition to make this decision to refuse treatment. This is verified by a registered medical practitioner and another person.