Enduring Powers of Attorney (Financial) and Future Medical Treatment Preferences

Enduring Powers of Attorney (financial)

This is an important estate planning tool. Basically, this document authorizes an attorney to make financial and legal decisions on your behalf if you lose capacity; for example, operating a bank account, signing a legal document such as entering into an aged care facility, paying bills.

The appointed attorney can make the same financial and legal decisions that an individual would make for themselves when competent.

“Enduring” means the power continues when an individual is unable to make decisions because they lose capacity.

In the event you have not appointed an attorney, an application must be made to VCAT for an order that an administrator be appointed. This can take weeks. At an often difficult and emotional time in your family’s life, this is the last thing you would want to be doing. All the associated stress and trouble could have been avoided if a financial power of attorney been in place.

Clearly, the choice of attorney is an important consideration. The attorney should be someone who you trust to manage your affairs and look after your best interests.

There are formal requirements that need to meet when executing the document.

Future Medical Treatment Preferences

On 12 March this year, the Medical Treatment Planning and Decision Act 2016 (Vic) (“the Act”) came into force.

The 2 major components of the Act allow for:

  • the appointment of a medical treatment decision maker; and
  • the establishment of a more formal framework for Advance Care Directives.

It is important to note that Medical Powers of Attorney made before 12 March 2018 remain in force.

Medical Treatment Decision Makers

A person may appoint a medical treatment decision maker to make decisions about their medical treatment if they lose decision making capability.

In the event a person has not appointed a medical treatment decision maker, there is a hierarchy of persons who can act as the medical treatment decision maker.

Briefly, this hierarchy is:

  1. a guardian appointed by VCAT to make a medical decision; if none then
  2. an adult (starting with the spouse, primary career, adult children etc.) who has a close and continuing relationship and is ready, willing and able.

There are formal requirements to be met when appointing a medical decision-maker such as the requirement that the appointment must be witnessed by 2 people, one of whom must be a registered medical practitioner or a person authorised to take affidavits and the witnesses must certify the appointor appears to have decision-making capacity.

Advanced Care Directives

Under the Act a person can make an advance care directive for future medical treatment. This directive may include either or both:

  • an instructional directive with legally binding instructions allowing a person to consent to or refuse a particular medical treatment for a medical condition. A health practitioner must follow this directive;
  • a value directive which is a statement about a person’s preferences and values as the basis on which medical treatment decisions are to be made on their behalf. A health practitioner must consider this directive when offering or deciding not to offer medical treatment.

Once again there are formal requirements that need to be met when making an advanced care directive. One important requirement is that one of the witnesses must be a registered medical practitioner.

The Act is designed to ensure that a person’s values and preferences on medical treatment will be followed when decision making capacity for medical treatment is lost.

Lanyon Partners Legal can assist and guide you through all aspects of your estate planning including advising you on the above tools.