From 12 March 2018, new legislation will come into force for individuals wishing to appoint medical decision makers in Victoria. The Medical Treatment Planning and Decisions Act 2016 (Vic) will replace the previous Medical Treatment Act 1988 (Vic) and the ‘Advanced Care Directive’ will replace the current practice of appointing Medical Power of Attorneys.

It is important to note that a Medical Power of Attorney executed prior to 12 March 2018 will continue to be valid and will not require updating.

Whilst Medical Powers of Attorney were only recently overhauled in 2015; they currently provide little flexibility to incorporate personal preferences, beliefs and values as relates to medical treatment. Consequently, this further update to the legislation seeks to achieve an even more simplified, patient-centred care scheme that is consistent with contemporary views and provides greater autonomy in medical treatment should a person become incapacitated. Individuals (‘principals’) will be able to create an ‘Advanced Care Directive’ (‘ACD’) which may contain all or some of the following components:

• Appointment of a medical treatment decision maker – the appointment of another person to make medical decisions in line with the principal’s preferences and values as outlined in their ACD;

• Instructional directive – outlines whether the principal consents or refuses a particular medical treatment;

• Values directive – more general statements about the principal’s preferences and values;

• Appointment of a support person – the appointment of a person to collect and interpret information and communicate the decisions of the principal.

If a person loses decision making capability and requires significant medical treatment, health practitioners can refer directly to the instructional directive located in the ACD and execute any relevant orders contained in that document. However, should no instructional directive be included, the health practitioner must consult the appointed medical treatment decision maker for instructions on how to proceed with treatment.

Barry, whilst fit and healthy, seeks resolution and order in his personal and medical affairs. For Barry to feel comfortable that his medical wishes will be adhered to should he become incapacitated, he decides to execute an Advanced Care Directive.

In his ACD, Barry appoints his wife, Beatrice, as his medical treatment decision maker. Should Barry lose the capacity to make medical decisions, Beatrice will have the power to act and make medical decisions on his behalf.

After many decades of marriage, Barry is in no doubt that Beatrice knows him well enough to be able to make medical decisions in his best interest and therefore decides he does not need to appoint a separate support person.

Barry does, however, provide instructions for organ donation and medical research in an instructional directive, along with directives concerning resuscitation and refusal of certain medical treatments.

Barry also has certain beliefs and values regarding medical treatment (for religious or other reasons) and specifies these in a values directive.

An Advanced Care Directive will provide individuals with greater autonomy and certainty over their medical treatment when they are unable to make the decisions themselves, and for the appointed decision makers, an ACD will provide greater clarity in what could otherwise be a stressful and emotional situation. From March, ACDs are executed in place of what is currently known as a Medical Power of Attorney and along with an Enduring Power of Attorney, can be incorporated easily into one’s comprehensive and holistic personal, medical and wealth plans.

For more information on our approach to Estate Planning or any other enquiries please contact us on (03) 9655 5000.