By Morgan Collens

Planning for the future is crucial, especially when it comes to making decisions about your health and finances in the event of incapacity. Two key tools that help ensure your wishes are respected are Powers of Attorney and Advance Care Directives.

Powers of Attorney

An enduring power of attorney is a legal document that allows you to designate someone to make decisions on your behalf regarding personal matters (such as your living arrangements) and/or financial matters (such as managing bills). This designated person is referred to as your attorney. The “enduring” nature of this power means it remains in effect if you become unable to make decisions yourself.

  • You have the option to limit the scope of the attorney’s authority to specific areas, and you can decide when their powers take effect.
  • It’s important to note that your attorney cannot make medical treatment decisions for you unless they are also your designated medical treatment decision-maker.
  • To create an enduring power of attorney, you must be at least 18 years old and capable of making informed decisions.
  • Please remember, you can only create an enduring power of attorney for yourself, not for anyone else.

If you don’t appoint someone and are unable to make a decision when necessary, the Victorian Civil and Administrative Tribunal (VCAT) can assign a decision-maker for you, such as the Public Advocate or a trustee company.

Advance Care Directives

Creating an advance care directive is a way to plan for your future care in case you become unable to make decisions about your medical treatment.

An advance care directive is a legal document that allows you to:

    • Record your values and preferences for medical treatment (known as a values directive)
    • Make legally binding statements to health practitioners, specifying your consent to, or refusal of, certain future medical treatments (known as an instructional directive).

Caution: Only complete an instructional directive if you are certain about the medical treatments you want or don’t want in the future, as health practitioners are required to follow your instructions.

  • An advance care directive is only used when you are no longer able to consent to or refuse medical treatment.
  • Except in emergencies, health practitioners must obtain your consent before providing treatment.
  • If you lose the ability to make medical treatment decisions, your health practitioner is required to make reasonable efforts to determine whether you have an advance care directive with relevant instructions. If such a directive exists, they will follow the instructions it contains.
  • If you lack the capacity to make a medical treatment decision and have not created a relevant instructional directive, your health practitioner will consult your appointed medical treatment decision maker to make decisions on your behalf.
  • The Medical Treatment Planning and Decisions Act outlines who qualifies as your medical treatment decision maker.

Your medical treatment decision maker is expected to make decisions based on what they reasonably believe you would choose. To do this, they must consider factors such as:

    • Your values directive (if applicable)
    • Any other values or preferences you have expressed.

Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.