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.
How to Appoint a Medical Treatment Decision Maker
To appoint a medical treatment decision maker in Victoria:
- make the appointment in writing while you have decision-making capacity;
- sign it in the presence of two adult witnesses, at least one of whom is a registered medical practitioner or a person authorised to witness affidavits, and neither of whom is the person you are appointing; and
- have the person you appoint accept the appointment by signing in the presence of an adult witness. They must be 18 or older, have decision-making capacity and be willing to take on the role.
If you have not appointed anyone, the Medical Treatment Planning and Decisions Act 2016 (Vic) sets out a default hierarchy that health practitioners work down to find the person who decides.
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 name more than one person in the appointment. Only one of them acts at any time: the first person you list who is reasonably available, willing and able to act makes the decision, and if they cannot, the next person on your list does (Medical Treatment Planning and Decisions Act 2016 (Vic) s 28(2)). 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.
Appointment of Medical Treatment Decision Maker: The Form and How to Sign It
The Department of Health publishes an Appointment of medical treatment decision maker form, and most people use it. A long version is for appointing more than two decision makers, and a separate version is for someone who cannot physically sign. The Office of the Public Advocate links to each version. Whichever document you use, it must meet the formal requirements in section 28 of the Act. If you would like us to prepare the appointment, give us the details through our medical treatment decision maker instructions form.
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 on the list is available, a health practitioner may give routine treatment without consent, but significant treatment needs the consent of the Public Advocate.
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 is a personal matter, for an attorney you appoint under an enduring power of attorney or a guardian appointed by VCAT), 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 covers financial matters (managing bank accounts, paying bills, dealing with real estate), personal matters (such as where you live), or both. An enduring power of attorney made today cannot give the attorney power to make medical treatment decisions, because personal matters under the Powers of Attorney Act 2014 (Vic) do not include medical treatment (s 3). Medical decisions need an appointment under the Medical Treatment Planning and Decisions Act 2016 (Vic).
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.
Medical Treatment Decision Makers: Common Questions
Is a medical treatment decision maker the same as a medical power of attorney?
It is the role that replaced it. Since the Medical Treatment Planning and Decisions Act 2016 (Vic) came into operation on 12 March 2018, a new medical enduring power of attorney cannot be made in Victoria. An agent appointed under a medical enduring power of attorney made before then is treated as an appointed medical treatment decision maker (s 102(2)).
Can my enduring power of attorney make medical decisions?
Not under an enduring power of attorney made today. Medical treatment decisions need a separate appointment of a medical treatment decision maker. You can appoint the same person to both roles, using a separate document for each.
Who should have a copy of the appointment?
Each person you appoint, your doctor, and any hospital or aged care service you use. Keep the original somewhere your family can find it.
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, and we can prepare your appointment from the details you give us through our medical treatment decision maker instructions form. Call us on 1800 776 529 to discuss your situation with an experienced solicitor.
Planning ahead? See our wills and estate planning lawyers page for wills, powers of attorney and advance care planning, or call 1800 776 529.
This article is general information only. It is not legal advice about your situation, so obtain advice on your own circumstances before acting.
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