What is a Medical Power of Attorney?

Why Might You Consider a Medical Treatment Decision Maker?

Life has its ups and downs. And whilst people choose to stay optimistic and try not to think about the bad stuff- sometimes it's better to prepare for the worst. This is never more relevant than when it comes to medical treatment decisions, and assigning someone authority to take care of these decisions if you lose capacity.

Whether through illness, injury, physical disability or temporary anaesthesia from surgery- there are countless, unexpected scenarios where you might need someone to act in your best interest. Incapacitation can occur in the blink of an eye, and if something like that happens, you want to know that a trusted family member or friend has the legal capacity to guide treatment decisions.

As the ongoing implications of the COVID19 pandemic become clear and life begins to return to normal, focusing on our own health and wellbeing has never been more relevant. Below, we explain why appointing a Medical Power of Attorney is an essential part of planning for the future.

What is a Medical Power of Attorney?

A Medical Power of Attorney is the legal way to protect yourself if you become incapacitated. This legal document appoints people you trust to make medical, personal and lifestyle decisions on your behalf, in case you are ever unable to make these types of decisions for yourself.

In Victoria, your medical Attorney is appointed in a document called an Appointment of Medical Treatment Decision Makers, and your nominated decision makers can only make decisions in relation to medical treatment.

In other states and territories, the relevant document is called an Enduring Power of Guardianship. For states and territories that use an Enduring Power of Guardianship, this document authorises your Attorney(s) to make decisions in relation to your personal affairs, as well as medical.

What types of Decisions can a Medical Attorney make?

An Attorney appointed by an Enduring Power of Guardianship is responsible for making decisions relating to your health and lifestyle if you are no longer mentally capable to do so yourself.. The types of decisions an Attorney can make vary from state to state, but typically include the following:

• Where you live;

• Where you work and/or receive an education;

• Whether you receive support in an aged care facility or a specific hospital;

• What personal services, such as attendant care, domestic support, or recreational services you have access to;

• Decisions around healthcare and medical treatment (including but not limited to surgery and ongoing treatments);

• Dental services;

• Mental health services (in some states and territories); and/or

• Resuscitation or euthanasia.

Your Medical Attorney can only refuse you treatment if they believe the treatment would cause you distress, or they reasonably believe the treatment to be unnecessary. Despite being your medical treatment decision maker, they cannot however refuse you emergency treatments or palliative care. Similarly, they do not have legal authority to consent to you participating in medical research, donating an organ for transplant or receiving an abortion without your consent.

For Victoria, a person appointed by an Appointment of Medical Treatment Decision Maker document can only make decisions relating to your healthcare and medical treatment. If you wish for your Attorney to be able to make decisions relating to your personal affairs and lifestyle (the first four dot points above), then you should prepare a Personal Power of Attorney as well.

But I'm young and healthy, why does this matter?

The COVID-19 pandemic has made many of us think about our own mortality for the very first time. But death isn't the only thing we're having to think about. We're also in a position where we have to decide whether or not we want to get vaccinated. Many of us protect our assets with an enduring power of attorney- however neglect to do the same for our health by appointing these same powers on these decisions.

The following case study details the risks of not appointing a Medical Power of Attorney and what that could mean for vaccine decisions. Having a medical treatment decision maker is important for everyone, as it ensures that your wishes are protected under unexpected emergencies.

Who decides whether I should receive the COVID-19 vaccine if I am unable to decide?

The relevant state or territory Tribunal may appoint an independent government guardian, often known as a ‘Public Guardian' or ‘Public Advocate', even if family members are willing and able to act, especially if there is conflict within the family.

This happened in a recent New South Wales Tribunal decision (LZN [2021] NSWCATGD 12) which involved a family dispute between two daughters over whether their mother should receive the COVID-19 vaccine. The mother did not have a Medical Power of Attorney and this meant that the Tribunal had the power to decide who should make the decision.

Although there were three daughters, the Tribunal appointed a Public Guardian. The Public Guardian was given a wide range of powers to make decisions for the mother, including the power to make decisions on the mother's behalf, and override the mother's objections to medical treatment.

This case demonstrates that if you do not have a Medical Power of Attorney, you risk losing the power to choose who should make decisions about your health and lifestyle. Instead, that power will be given to a Court or Tribunal that may appoint someone you do not know or who is unfamiliar with your health and lifestyle, to make those decisions on your behalf.

If you appoint a medical POA yourself, you can ensure this person's views align with your own. In this way, you safeguard your future health decisions against the legally binding appointment of a Public Guardian.

When would my Attorney act for me under a Medical Power of Attorney?

Under a Medical Power of Attorney, your Attorney only starts making decisions for you when you no longer have the capacity to make medical decisions for yourself. The below examples show just how important a Medical Power of Attorney can be to protect your best interests and prevent potential family disputes.

• Tom was injured in a motor vehicle accident. When Siobhan rushed to be at Tom's side during surgery, the doctor in charge asked Siobhan to prove that she was Tom's next of kin. If Siobhan had been appointed as Tom's Attorney, she would have been able to make Tom's medical decisions without having to first prove her relationship with Tom. This ensures a smoother process, whereby important medical treatments are not delayed.

• Lee is divorced and has two adult children. Recently, Lee suffered a stroke which caused paralysis and left him unable to speak. Lee's son believes he should be moved to a nursing home. Lee's daughter believes he should live with her. However, since Lee appointed his sister Xi as his Attorney, Xi had the power to decide where Lee should live. This prevented a potential family dispute at a time when Lee was going through severe illness.

• Joseph has been married to Jerry for 30 years with three adult children. Joseph's mother Claire had been in an accident many years ago and was placed on mechanical ventilation for a number of months before she passed away. After watching his mother's struggles Joseph decided if he was in a similar situation he would not want to be resuscitated or kept alive in such a condition. He was able to leave detailed instructions rejecting the use of ventilation machines or resuscitation to prolong his life in a Medical Power of Attorney document. This ensures that someone with legal powers can guide a doctor on treatment decisions Joseph would have requested if he could.

• Eve was recently diagnosed with early stages of dementia. Eve believes her husband Adam is in the best position to make personal and medical decisions for Eve when she loses the capacity to do so. As a result, Eve immediately appoints Adam as her Attorney, whilst she retains the capacity to sign an Enduring Power of Guardianship. However, Eve also appreciates that Adam might die before her. Eve and Adam do not have any children, so Eve appoints her nephew David to be her backup Attorney. This is an example of thinking ahead, to ensure there will always be someone a medical treatment decision maker present, to make the right decisions for you.

What happens if no one has enduring power for medical treatment?

1. You will lose the power to legally decide who can make decisions for you when you are unable to. The exception to this is that in most states, spouses or de-facto couples are automatically recognised as the medical treatment decision maker in the event of incapacity. Depending on your individual circumstances, you may be fine with this or would like to appoint someone else.

2. Decisions are made that go against your wishes. Medical professionals have the best intentions, yet they might not fully understand your wishes. These types of instructions can be included in your medical Power of Attorney. Without it, your loved ones may not know your preferences and can't communicate these preferences to medical professionals.

3. There may be family disputes about your health and lifestyle decisions that result in legal proceedings. Having a Medical Power of Attorney means that you can prevent disputes arising between family members over who should make decisions on your behalf. In choosing who you want to act on your behalf, decisions can be made quicker without family debate.

4. A Court or Tribunal will have the power to appoint a Public Guardian. If the Court or Tribunal does not find anyone suitable to manage your affairs, a Public Guardian may be appointed to make decisions for you. This means your family can lose control over the medical decisions made for you.

FAQS

Who can make a Medical Power of Attorney?

Anyone over the age of 18 can act as your medical treatment decision maker in the role of Medical Power of Attorney, so long as they have decision-making capacity. Having decision-making capacity means that you are able to make decisions for yourself and understand the implications of signing the Power of Attorney document.

Who should you appoint as your Medical Power of Attorney?

A medical treatment decision maker must be at least 18 years old. They must have decision-making capacity and need to sign a consent form saying they agree to be appointed as your Attorney. Your Attorney could be your spouse or de facto partner, a sibling, close friend or other trusted family member.

Can you revoke your Medical Power of Attorney?

Yes, you can revoke the appointment provided you have decision-making capacity to do so the cancellation must be in writing using the form required by the relevant regulations or legislation in your state.

How long does a Medical Power of Attorney last?

The person appointed as Medical Power of Attorney will remain in place until you die or if you revoke the decision. In some states and territories, marriage and divorce may also void your Power of Attorney, depending on who you have appointed.

It will also become void if all your appointed Attorney dies or become incapacitated themselves. The Court or Tribunal in your state may also revoke the appointment if necessary.

After your death, your affairs are managed by following the terms of your Will.