If you were in a serious accident tomorrow and could not speak for yourself, who would decide whether doctors could proceed with surgery? In Victoria, the answer to that question is determined by the Medical Treatment Planning and Decisions Act 2016 (Vic), and the outcome depends entirely on whether you have planned ahead or left it to chance.
What Is a Medical Treatment Decision Maker?
A medical treatment decision maker is a person who has legal authority to consent to or refuse medical treatment on your behalf when you do not have the capacity to make that decision yourself.
Capacity, under the Act, is decision-specific. A person may have capacity to decide some things and not others, and the loss of capacity can be temporary or permanent. The Act presumes adults have capacity unless there is evidence to the contrary.
Your medical treatment decision maker only steps in when you cannot make a decision yourself. While you have capacity, you remain in full control of your own healthcare.
Instructional Directives and Values Directives
An advance care directive under the Act can contain two types of content, and understanding the difference matters.
Instructional Directive
An instructional directive is a binding legal instruction about specific medical treatment you consent to or refuse. For example, you might record that you refuse resuscitation in particular circumstances, or that you consent to particular treatments even if you are unconscious. Health practitioners must give effect to a valid instructional directive. They are not free to override it.
Values Directive
A values directive records your values, life goals, and beliefs to guide whoever is making decisions for you. It is not a set of specific instructions, but it must be considered by both your medical treatment decision maker and treating health practitioners when making decisions on your behalf. A well-written values directive can be more powerful in practice than a list of instructions, because it guides decision-making in situations you could never specifically anticipate.
You can include both types in a single advance care directive document.
Who Can Be Appointed as Your Medical Treatment Decision Maker?
To be appointed, a person must be 18 years of age or older, have decision-making capacity at the time they accept the appointment, and be willing to take on the role.
You can appoint one primary medical treatment decision maker and one or more alternatives who step in if the primary appointee is unavailable or unwilling to act at the relevant time. There is no requirement that the person be a family member. It can be a trusted friend.
The person you appoint should understand your values and preferences, be able to make difficult decisions under pressure, and be readily contactable when needed.
How to Make a Valid Appointment
To appoint a medical treatment decision maker, you must complete the prescribed form. Professional Edge Lawyers makes this process straightforward. You can find the medical treatment decision maker appointment form on our website.
The formal requirements under the Act are:
The appointment must be in writing. You must sign the document (or direct someone to sign in your presence if you cannot sign yourself). Two adult witnesses must be present when you sign, and at least one witness must be either a registered medical practitioner or a person authorised to witness affidavits (such as a solicitor, justice of the peace, or police officer of sergeant rank or above). Neither witness can be the person you are appointing as your decision maker. The person you appoint must accept the appointment by signing in the presence of an adult witness.
You must have decision-making capacity when you make the appointment. This is not something that can be arranged after capacity has been lost.
The Default Hierarchy: If You Have Not Appointed Anyone
If you lose capacity and have not made an appointment, the Medical Treatment Planning and Decisions Act 2016 (Vic) sets out a default hierarchy. Health practitioners work down this list to find the first person who is willing and able to act and who has a close and continuing relationship with you:
- An appointed medical treatment decision maker (your own appointment)
- A guardian appointed by VCAT with authority to make medical treatment decisions
- Your spouse or domestic partner
- Your primary carer
- Your oldest adult child
- Your oldest parent
- Your oldest adult sibling
If no one is available from this list, the matter is referred to the Office of the Public Advocate, who can make the decision or seek a VCAT order.
Grandparents, aunts, uncles, and other extended family are not on this list. If your closest relationships are with people outside your immediate family, relying on the default hierarchy may produce a result that does not reflect your wishes.
What Your Decision Maker Can and Cannot Do
What They Can Do
Your medical treatment decision maker can consent to or refuse any form of medical treatment on your behalf, including palliative care. When making a decision, they must act in accordance with what they reasonably believe you would have wanted, not what they personally prefer. The Act sets out a clear process: they must first consider any values directive, then any other preferences you have expressed, then your broader values and life goals.
What They Cannot Do
Your medical treatment decision maker cannot make decisions about your finances or property (that requires a separate financial power of attorney), make decisions about where you live (that falls under personal guardianship), override a valid instructional directive in your advance care directive, consent to voluntary assisted dying (explicitly excluded from the Act), or consent to certain special medical procedures (such as sterilisation) without VCAT authorisation.
Medical Treatment Decision Makers and Advance Care Directives
A medical treatment decision maker and an advance care directive work together, not in competition. If you have an advance care directive containing an instructional directive, your medical treatment decision maker must give effect to it. They cannot override your documented instructions.
Where there is no instructional directive, or where the directive does not address the specific situation, your medical treatment decision maker steps in and uses your values directive (if you have one) to guide their decision.
This is why having both is more powerful than either alone. The advance care directive sets the framework; the medical treatment decision maker handles situations the directive did not anticipate.
Medical Treatment vs Power of Attorney: A Common Confusion
Many Victorians confuse the roles of a medical treatment decision maker and an attorney appointed under the Powers of Attorney Act 2014 (Vic).
An enduring power of attorney governs financial and property decisions: managing bank accounts, paying bills, dealing with real estate. An attorney under this document has no authority over medical decisions unless the document specifically grants it.
A medical treatment decision maker appointment governs healthcare decisions only. These are distinct roles, and distinct documents are required for each.
You can appoint the same person to both roles if you wish, but you must complete the correct documentation for each. Many Victorians discover this distinction too late, when a family member assumes they can make medical decisions simply because they hold a financial power of attorney. They cannot.
When to Review Your Appointment
An appointment does not expire, but circumstances change. You should review your appointment when you separate from or divorce a partner who was appointed, your appointed person dies, loses capacity, or indicates they no longer wish to act, your values or preferences about medical treatment change significantly, you enter aged care (where the appointment may be called upon in the near future), or a significant health diagnosis makes the issue more immediate.
Revoking a prior appointment requires a written revocation signed with the same witnessing formalities as the original appointment. Your previous appointee must be notified.
Why It Matters: Three Scenarios
Sudden accident. A 45-year-old is involved in a car accident and is unconscious. They have no appointment. Their adult children disagree about whether surgery should proceed. Without a clear hierarchy and an appointed person, hospital staff must work through the default list and may need to involve the Office of the Public Advocate while the patient waits.
Planned aged care admission. An 80-year-old is moving into residential aged care. The facility asks whether an advance care directive and medical treatment decision maker are in place. Without these documents, treatment decisions during a health crisis will fall to whoever happens to be available under the default hierarchy, which may not reflect what the resident would have wanted.
Progressive illness. A person is diagnosed with early dementia. While they still have capacity, they have the opportunity to appoint the person they trust most and record their values in an advance care directive. Once capacity is lost, that opportunity is gone.
Talk to Professional Edge Lawyers
Appointing a medical treatment decision maker is one of the most practical steps you can take to protect your autonomy over your own healthcare. At Professional Edge Lawyers in Frankston, we help Victorians complete their advance care planning documents correctly, including the medical treatment decision maker appointment form available on our website. Call us on 1800 776 529 to discuss your situation with an experienced solicitor.
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