Medical Treatment Decision Makers in Victoria

Before 2018, medical decisions in Victoria were dealt with under a patchwork of legislation. The current Act consolidates the regime. A key consequence is that medical treatment decisions are no longer made by an attorney appointed under a general enduring power of attorney. The Act requires a specific appointment of a medical treatment decision maker. This is one of the most commonly missed pieces of estate planning: clients often have a comprehensive enduring power of attorney but no medical treatment decision maker appointment, which leaves the statutory hierarchy to take over by default.

The appointment is made by signing the prescribed form. The person making the appointment must have decision-making capacity for medical treatment matters at the time, and the document must be signed in the presence of two adult witnesses, one of whom must be authorised to witness affidavits. The witnesses certify, among other things, that the person appears to have capacity and is signing freely.

Only one decision maker can act at a time, but successive appointees can be named to take over if the primary appointee dies, becomes unavailable or loses capacity. Choosing a person who is geographically available, willing to engage with clinicians, and able to make difficult decisions under pressure matters far more than choosing the person who would most expect to be appointed.

The Act provides for two kinds of advance care directive. A values directive records the person's values and preferences about medical treatment to guide future decisions but is not directly binding. An instructional directive gives specific instructions consenting to, or refusing, specified medical treatment in specified circumstances. An instructional directive is legally binding on treating clinicians where the specified circumstances apply.

Instructional directives are the legally strongest way to refuse particular treatments — for example, refusing cardiopulmonary resuscitation, mechanical ventilation or artificial nutrition in defined end-of-life scenarios. They are also the most useful way to ensure that consistent religious or cultural preferences are followed. Drafting them well requires care: too narrow and the directive does not apply when needed; too broad and clinicians cannot determine whether the circumstances are met.

When a patient lacks decision-making capacity for the particular treatment, treating clinicians must look first to any applicable instructional directive. If there is none, the appointed medical treatment decision maker decides, guided by any values directive and by what the patient would have wanted. If there is no appointed decision maker, the Act sets out a hierarchy: typically partner, primary carer, adult child, parent, sibling.

For decisions involving significant treatment, clinicians are required to give the decision maker specific information and time to consider. Decisions about withholding or withdrawing life-sustaining treatment carry particular weight and should ideally be guided either by an instructional directive or by careful prior conversation with the decision maker.

Disputes between family members, between family and clinicians, or between successive statutory decision makers can be referred to the Public Advocate for facilitation and, if necessary, to VCAT for determination. The Public Advocate also has investigatory powers under the Act. The smoother course is almost always to have a properly executed appointment and clear advance care directive in place, ideally accompanied by a conversation with the appointed decision maker about expectations.

Appointing a medical treatment decision maker is the third leg of a complete personal-side estate plan, alongside the will and the enduring power of attorney. The three documents can and should be prepared together. Done properly, they ensure that the right person can speak with banks about the family finances, the right person can speak with clinicians about treatment, and the right people inherit when the time comes. Done in isolation, gaps appear — and the gaps tend to surface at the worst possible moment.