What are the changes?
Victorians will now be able to appoint a medical treatment decision maker to act on their behalf in circumstances where the individual no longer has the ability to make decisions themselves. This now replaces the previous enduring power of attorney (medical treatment document). The individual can appoint multiple decision makers if they so desire, though only one person will be able to act on their behalf at any given time; this is put into effect as a “list” system with the decision maker being determined as the first person who can be contacted and is able to act. A medical treatment decision maker must take into account any relevant instructional directive (this will override their decision-making ability), a values directive, or other expressed relevant preferences made by the person.
They will also now be enabled to make an advanced care directive regarding medical treatment that will take effect once they have lost capacity. Two different types of directives will be in place – a binding instructional directive and a non-binding values directive. The binding instructional directive noting exact binding directives relating to medical treatment a person either consents to or refuses. An example of this is ‘I consent to hip replacement surgery under the following circumstance…’. Details relating to a person’s views and values for medical treatment fall under non-binding values directives; an instance of this may be ‘If I cannot communicate and am unable to recognize family and friends, I do not want to receive medication to extend my life’.
When making a valid advanced care directive, there are formal requirements that must be followed. In order to complete these directives, a person will need to attend a health care professional.
Healthcare facilities are required to retain a copy of the directive on a person’s medical record if they are aware of an advanced care directive having been made.
Excluding very limited circumstances, a binding instructional directive must be followed.
For further information, please contact the Morrows Legal team.