Powers of Attorney

A Power of Attorney is a legal document by which you appoint another person or persons to make decisions for you.

The laws in relation to Powers of Attorney are forever evolving and each state and territory has different legislation that governs this area and in some circumstances, it is appropriate to have both Victorian documentation and for example NSW documentation.

It is important to consider the need for Power of Attorney documentation. If you lose capacity and have not made a Power of Attorney, an application to VCAT has to be made to have one or more persons appointed to make decisions on your behalf.

This means that the person/s responsible for making your decisions are not chosen by you and there are no guarantees that VCAT will appoint who you would want.

You can only make an Enduring Power of Attorney for yourself, and only if you are aged 18 years or older and have decision-making capacity to do so.

In Victoria, the Powers of Attorneys that currently exist are as follows:

1. Enduring Power of Attorney (Financial & Guardianship)
2. Enduring Medical Power of Attorney;
3. General Power of Attorney; and
4. Corporate Power of Attorney.

It is vital that you seek legal advice to ensure that your Power of Attorney documentation is prepared in accordance with the current legislation as each document must specify:

• What powers to give;
• When the power starts; and
• Who to appoint.

Who is a Medical Treatment Decision Maker

A Medical Treatment Decision Maker is someone you nominate to make decisions about your healthcare on your behalf, in the event that you suffer an injury or medical condition that affects your ability to make those decisions yourself. To legally empower someone to do that, you appoint the person to be your ‘medical treatment decision maker’.

Appointing a Medical Treatment Decision Maker

Appointing a Medical Treatment Decision Maker gives a trusted person (or people) the power to make decisions on your behalf. Anyone over 18 years old and of sound mind can appoint a medical treatment decision maker.

In a medical context, the agreement is specifically about making medical decisions when you are unable to make those decisions yourself, for example, if you are unconscious after an injury.

Reasons to have a Medical Treatment Decision Maker

If you have a medical condition that affects your ability to retain new information and make decisions, appointing someone to be your Medical Treatment Decision Maker is a good course of action.

Some examples of conditions that may put you in this position include:

• acquired brain injury
• cognitive (thinking) impairment
• unconsciousness
• inability to communicate (for example, after suffering a severe stroke)
  dementia.

Other situations where you may choose to appoint a Medical Treatment Decision Maker include:

• if you do not want life support at a certain point during an illness or after an accident
• if you are worried you may be injured performing a certain activity, such as playing a high-contact sport.

What Medical Treatment Decision Maker means

When you ask someone to be your Medical Treatment Decision Maker, you give them the power to make all the decisions about your healthcare and medical treatment when you are unable to. However, they cannot make financial or property decisions for you. That requires a different type of legal appointment by completing an Enduring Power of Attorney.

Your Medical Treatment Decision Maker is legally bound to act in a way that promotes your personal and social wellbeing. This means that they must consider your medical preferences, values and beliefs in order to make the decision they believe you would have made were you able to.

How to appoint a Medical Treatment Decision Maker

You can appoint a Medical Treatment Decision Maker at any time so long as you are over 18 and of sound mind, but their role only begins if and when you lose the ability to make your own medical decisions. You do not have to lose capacity permanently. For example, if you are injured or ill temporarily, your Medical Treatment Decision Maker can make treatment decisions for you until you recover.

To appoint a Medical Treatment Decision Maker you must fill in the appointment form, sign it and have it witnessed by two people. One of the two witnesses needs to be a qualified person, such as a Justice of the Peace. Also make sure that the person who you want to appoint as your medical treatment decision maker is not a witness.

To accept the appointment, your Medical Treatment Decision Maker will also have to sign the form in front of your witnesses.

Make sure you keep the original form somewhere safe and tell two or three trusted people where it is. You should also give copies to your Medical Treatment Decision Maker, your doctor and your local hospital. Have your Medical Treatment Decision Maker’s contact details with you at all times in case of emergency, and tell your close family members and friends who your Medical Treatment Decision Maker is.

Communicate your views with your Medical Treatment Decision Maker

It is important to talk to your Medical Treatment Decision Maker about your views on and wishes for any medical treatment you may need and make sure they are clear about your choices. This could include surgery, types of medication and life support systems. It can be useful to write down your thoughts, using an advance care directive for example, so your Medical Treatment Decision Maker and the rest of your family and friends are clear about your wishes.

You can also record your wishes in writing for future care and related matters by completing an Advance Care Directive with your Medical Practitioner.