Does durable power of attorney cover medical decisions

Estate Planning

Financial Power of Attorney: How It Works

A durable financial power of attorney can avoid financial disaster in the event you become incapacitated. You can also use a POA to allow someone to transact business for you if you are out of town or otherwise unavailable.

1. What is a medical enduring power of attorney

A medical enduring power of attorney is a legal document that authorises another person to make decisions about your medical care and treatment on your behalf.

The person making the medical enduring power of attorney  is called the appointor, and the person who accepts the appointment is the agent.

The medical enduring power of attorney takes effect if and when you become incapacitated. The incapacity can be temporary, for example, due to a loss of consciousness after a car accident, or permanent, for example, due to dementia. However, it does not take effect if your decision-making capacity has been reduced only briefly or mildly.

2. What power does it give?

Your agent holds the same powers (rights) to accept, request or refuse treatment that you had previously.

Your agent is obliged to make the same decisions they believe you would have made. Take the time to make sure your proposed guardian is aware of your personal views and desires, so they can take account of them when making decisions on your behalf.

Your agent can refuse almost any medical treatment, be it a surgical procedure, blood transfusion, medication, cancer treatment, being put on life-support equipment or being given life-sustaining treatment.

However, they cannot

• refuse emergency, life-saving treatment
• refuse palliative care. Palliative care is the provision of medical treatment for relieving pain, suffering and discomfort, and the reasonable provision of food and water. Tube feeding into the stomach has been deemed a medical treatment rather than palliative care, so it can be refused
• allow you to be sterilised, have a pregnancy termination, or participate in medical research and organ transplants. Without your specific consent, permission for any of these procedures must be sought from the Victorian Civil and Administrative Tribunal.

If your agent refuses treatment, they may be asked to sign a refusal of treatment certificate, which doctors are obliged to obey. The doctor may ask that your agent sign the certificate so they have legal protection.

The refusal of treatment certificate must be signed by your agent, a doctor and a witness. The witness must not be involved in your health care, and must not have been a signing witness to the medical enduring power of attorney form. Before signing the refusal of treatment certificate, your agent must have been fully informed about the nature of your condition, the nature of the proposed treatment, and the consequences of refusing treatment.

Your agent can withdraw a refusal of treatment request by informing the medical staff verbally or by any other means of communication.

3. What are the legal formalities?

For a medcial enduring power of attorney to be valid, both the appointor and the agent must be at least 18 years of age have sufficient mental capacity to fully understand the nature and meaning of the medical enduring power of attorney document.

The medical enduring power of attorney must be signed in the presence of two witnesses. Neither witness can be the agent or the alternative agent. One witness must be authorised by law to witness the signing of statutory declarations (see glossary).

4. Who can I appoint?

You can appoint as your agent anyone that you think will make the right decisions for you. Medical decisions are very important, so make sure the person you choose understands your wishes and agrees to follow them, particularly in regard to the provision of life-support equipment and life-sustaining treatment.

You can appoint an alternative agent to be a back-up person should your agent die, become incapacitated or be incompetent. However, the alternative agent cannot make medical decisions for you jointly with the first agent, because you can have only one agent acting at a time.

5. Can I change my agent?

You can revoke (cancel) your agent by completing a new medical enduring power of attorney form, and stating that you are revoking (cancelling) all previous powers of medical attorney. The form must be signed and witnessed in the same way as the original document.

Destroy the revoked document, along with any copies, and inform the previous agent of your decision. Ask any person holding a copy to return it and destroy that too.

If you want to formalise the revocation, complete a revocation of medical enduring power of attorney form. Give your previous agent a copy of the form.

You can revoke a medical enduring power of attorney appointment only if you are mentally capable. If you are not mentally capable, only the Victorian Civil and Administrative Tribunal can revoke your agent’s powers.

6. When does it cease?

A medical enduring power of attorney is revoked (cancelled) when

• you die
• your attorney dies or becomes legally incapacitated and there is no alternative agent.

7. What if I become mentally incapacitated and don’t have an agent?

Other people can act on your behalf. If a guardian has been appointed by the Guardianship List of the Victorian Civil and Administrative Tribunal, they will be the first person to be asked to make medical decisions on your behalf. If a guardian has not been appointed, your next of kin will usually be asked to make any medical decisions.

8. From whom can we obtain advice?

The Victorian Civil and Administrative Tribunal (VCAT) is responsible for advising guardians, attorneys and agents, and providing direction and opinion about their role and the scope and powers of their appointment.

VCAT operates a 24-hour emergency service, and anyone concerned about your welfare can seek advice and help. If your concerns lead to the power of attorney (medical treatment) being revoked, they can appoint another person to make medical decisions on your behalf.

The Office of the Public Advocate provides information and advice about all guardianship and power of attorney matters.

9. From where can I obtain a form?

You can obtain paper copies of the medical enduring power of attorney form and the revocation form from larger newsagencies, law stationers, lawyers and the Office of the Public Advocate. Alternatively, you can download a form using this link. www.publicadvocate.vic.gov.au

Next Section: Glossary