Ms Wang's father lives in Melbourne and, after a recent stroke, cannot clearly express his wishes. When the doctor asked whether the family consented to an operation, Ms Wang and her brother in Shanghai disagreed. The hospital told them that the enduring power of attorney their father had signed only covered financial and personal matters and could not be used for medical decisions. This is not unusual in Victoria.
The direct answer: in Victoria, when a person loses decision-making capacity, medical decisions are governed by the Medical Treatment Planning and Decisions Act 2016 (Vic). The most reliable arrangement is to sign an advance care directive and formally appoint a medical treatment decision maker while you still have capacity.
Key points
- In Victoria, an enduring power of attorney does not cover medical treatment decisions; these need to be arranged separately.
- An advance care directive can contain a binding instructional directive and a values directive that must be taken into account.
- An advance care directive needs two adult witnesses, at least one of whom is a registered medical practitioner.
- Appointing a medical treatment decision maker needs two adult witnesses, one of whom must be an authorised witness (such as a JP), and the appointee must sign an acceptance.
- If no one is appointed, the law decides which relative makes decisions in a fixed order, which may not be the person you would have chosen.
What is an advance care directive?
An advance care directive is a written document in which, while you have capacity, you set out in advance the medical treatment you would or would not want if you later lose capacity. It can contain two parts:
- Instructional directive: a clear consent to, or refusal of, specific treatment, including life-sustaining treatment. It is legally binding on health practitioners, with the same effect as if you made the decision yourself at the time.
- Values directive: a statement of what matters to you, which outcomes you would or would not find acceptable, and your preferences about end-of-life care. It does not directly bind doctors, but the medical treatment decision maker and doctors must take it into account.
An instructional directive should be specific and clear; otherwise doctors may find it hard to decide whether it applies to the situation in front of them. The law also allows a practitioner, in limited circumstances (for example, where circumstances have changed so much that the directive no longer reflects the person's preferences and values), not to follow an instructional directive. It is therefore best to discuss your health with your GP before writing one.
Signing and witnessing requirements
When an adult signs an advance care directive, two adult witnesses must be present, at least one of whom is a registered medical practitioner. The witnesses must certify that the person appeared to have decision-making capacity, understood the nature and effect of the document, and signed voluntarily. There is no compulsory form, but the Victorian health department provides an official form, and using it usually reduces the risk of disputes.
For older people whose first language is Chinese, take particular care that the document reflects what they genuinely understand. If interpreting is needed, use a qualified interpreter and keep a record, so that no one can later question whether the person understood what they signed.
Appointing a medical treatment decision maker
A medical treatment decision maker is the person who consents to or refuses treatment on your behalf if you lose capacity. The appointment must be witnessed by two adults, one of whom must be an authorised witness who can witness affidavits (such as a justice of the peace); the appointee cannot be a witness. The appointee must also sign an acceptance in front of an adult witness. You can appoint more than one person in order of priority, so the next person steps in if the first cannot be contacted.
A medical treatment decision maker must make the decision they reasonably believe you would have made, taking into account your values directive, wishes you expressed previously and your overall wellbeing, rather than their own preferences. You can also appoint a support person to help you communicate and give effect to your medical decisions, but a support person has no power to make decisions for you.
What happens if no one is appointed?
Without a valid appointment, the law selects the first person who is reasonably available, willing and able to decide, in this order: an appointed medical treatment decision maker; then a guardian appointed by the Victorian Civil and Administrative Tribunal (VCAT) with power to make medical decisions; then the first of the following people who has a close and continuing relationship with the person: spouse or domestic partner, primary carer, adult child, parent, adult sibling. Where several people fall in the same category, generally the eldest decides.
This matters a great deal for cross-border families. For example, an eldest son who has lived in China or Malaysia for many years may not meet the close and continuing relationship requirement, and in a blended family a new spouse usually ranks ahead of the children. If family members disagree, they may need to seek help from the Office of the Public Advocate or even apply to VCAT, which takes time and can damage relationships.
Practical checklist
- Check existing documents: is there an enduring power of attorney, and is there also an appointment of a medical treatment decision maker?
- Talk with your family and GP about your values and treatment limits before deciding whether to write an instructional directive.
- Choose a decision maker who lives in Australia, can get to the hospital quickly and will respect your wishes, and consider an alternate.
- Arrange the correct witnesses: a registered medical practitioner for the advance care directive and an authorised witness for the appointment.
- Give copies to your decision maker, your GP and the hospital you usually attend, and consider uploading them to My Health Record.
- Review the documents after changes in health or family circumstances, such as remarriage or moving back overseas.
Frequently asked questions
I have already signed an enduring power of attorney. Do I still need to appoint a medical treatment decision maker?
Yes. In Victoria an enduring power of attorney deals with financial and personal matters and does not include medical treatment decisions. Medical decisions need to be arranged through an appointment of a medical treatment decision maker or an advance care directive.
Can my medical treatment decision maker live overseas?
The law does not prohibit it, but in practice medical decisions often have to be made quickly. If your appointee lives overseas, it is sensible to also appoint an alternate who lives in Australia.
Can I write my advance care directive in Chinese?
The official form is in English. If the person only understands Chinese, they should understand the content with the help of a qualified interpreter, and a record of the interpreting should be kept. It is best to get legal advice on the exact approach before signing.
What if I change my mind later?
As long as you still have decision-making capacity, you can revoke or re-sign your advance care directive and appointment at any time. Once new documents are signed, tell everyone who holds an old copy.
Is a medical authority signed in China or Hong Kong valid in Victoria?
Do not assume it is. Victorian hospitals generally apply Victorian law, and overseas documents may not be accepted. People who live in Victoria long term, or may receive treatment here, should sign a separate set of documents that meets Victorian requirements.
Chua Tan Associates has practised in Melbourne since 1990, providing wills, powers of attorney, probate and estate administration services in Mandarin, Cantonese and English. Justin Chua is a STEP Affiliate and a nationally accredited mediator, and the firm has a notary public who can notarise documents for use overseas. For help, call 03 9602 3988 or contact us online. We can meet at our Melbourne CBD office or by video.
This article is general information only and is not legal advice.
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