'It's The Law' - Medical Treatment Decision Makers & Advanced Care Directives

Medical Treatment Decision Makers & Advanced Care Directives

We have recently noticed an increase in the demand for wills and powers of attorney at O’Brien & Smith Lawyers. This is likely due to concerns over COVID-19. It is understandable that Wimmera residents went to ensure that they have the necessary documents in place should they become incapacitated by the virus. Whilst, wills and powers of attorney are essential documents there are two other types of document which I consider to be of considerable importance in preparing for COVID-19, these are the appointment of medical treatment decision maker and the advanced care directive.

Appointment of Medical Treatment Decision Maker

An appointment of medical treatment decision maker document does as the name suggests; it appoints a person to make decisions concerning your medical treatment once you no longer have decision making capacity. The decisions the decision maker may need to make include decisions around surgical procedures and the use of life support machines. Accordingly, this is an incredibly important role that should be given considerable thought.

You can appoint more than one person as your medical treatment decision maker. However, unlike powers of attorney you cannot have more than one person acting at one time. The individuals need to be listed in order. For example, if you have a partner and two adult children you may wish to appoint your partner as your first medical treatment decision maker, your eldest child as your second medical treatment decision maker and your youngest child as your third medical treatment decision maker.

An appointment of medical treatment decision maker document must be witnessed by an authorised witness (such as a lawyer) and another adult witness. Neither witness can be an appointed medical treatment decision maker for you.

This document is sometimes executed without an advanced care directive where the appointor has a high level of trust with that person. However, even in this circumstance I recommend also completing an advanced care directive.

Advanced Care Directive

An advance care directive can set out your binding instructions as well as your preferences and values in relation to your medical treatment of in the event you no longer have decision-making capacity for that medical decision.

The advanced care directive will normally have two sections, your values directive (where you detail your preferences and values) and your instructional directive (where you detail which medical treatment you consent to and which medical treatment you refuse) .

Whilst the values directive is not legally binding, it can provide great assistance to your medical treatment decision maker in deciding what to do when making difficult decisions. You can record what outcome following treatment would be acceptable or unacceptable (for example, loss of independence, or not being able to communicate). You can also include what is important to you in nearing death and where you would like to be cared for if you could not longer reside in your own home.

Unlike a will, powers of attorney or medical treatment decision maker, an advanced care directive must be witnessed by a medical practitioner rather than a lawyer. Further, it is usually best to complete the document with the assistance of your doctor. This form can be downloaded from Health Victoria’s website at https://www2.health.vic.gov.au/ or obtained from your solicitor.

If neither document is in place and treatment is required

The Medical Treatment Planning and Decision Act 2016 (Vic) sets out the steps for health practitioners in Victoria when a patient is unable to consent to medical treatment. If you do not have decision-making capacity and do not have an instructional directive in an advance care directive nor appointed a medical treatment decision maker, the Victorian Public Advocate has authority to consent to, or refuse, significant treatment on your behalf under section 63 of the Act.  However, the consent of the Public Advocate is not required for emergency treatment .

Accordingly, you should put in place both a medical treatment decision maker and an advanced care directive to ensure your wishes are followed in relation to your medical care.

Patrick Smith is the Principal of O’Brien & Smith Lawyers.

This article is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. Neither Patrick nor O’Brien & Smith Lawyers accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your lawyer.