Major Changes To Powers Of Attorney Laws

By Farah Nathar, Lawyer, MST Lawyers

The laws relating to medical treatment decision-making are about to change significantly with the commencement of the Medical Treatment Planning and Decisions Act 2016 (the Act).

The Act aims to consolidate and streamline existing laws so that all aspects of current and future medical treatment decision-making for people lacking the capacity to make decisions will be dealt with exclusively under the new Act.

The key features of the Act are as follows:

Advance Care Directives

From 12 March 2018, a person will be able to give binding instructions and express their preferences regarding future medical treatment in an Advance Care Directive document.  There are two types of directives that can be given in the document:

  1. Instructional Directives: Binding statements about future medical treatment that a person consents to or refuses;
  2. Values Directives: Statements that express a person’s preferences and values which must be taken into account by any person making decisions on their behalf.

Appointment Of A Medical Treatment Decision Maker

Under the new Act, a person can grant authority to one or more individuals to make decisions about medical treatment on their behalf, if they lose capacity. Only one person has the power to make decisions at any one time, with the first listed person on the document holding priority power.

The equivalent document under the current regime is known as the Enduring Power of Attorney (Medical Treatment) pursuant to the Medical Treatment Act 1988. These documents will continue to remain operative, with validly appointed Attorneys to be taken to be medical treatment decisions-makers under the new Act.

In addition, the Act allows for the appointment of support persons who may have various roles, such as to assist the person in making their own decisions.

Implications For Medical Treatment Decision Makers

The Act imposes obligations on all health practitioners (including paramedics) and medical treatment decision-makers to make medical treatment decisions in accordance with the Act. The Act sets out a process to be followed when making decisions, with various penalties and implications that can be imposed for non-compliance.

What This Means For You

While the Act does not invalidate previously appointed Enduring Powers of Attorney, now might be a good time to review your advanced care planning, to ensure that your wishes are carried out should you require medical treatment and lack the capacity to make decisions. MST Lawyers can provide guidance in navigating the new Laws as well as assist in putting in place an appropriate advance care plan. 

If you have any questions about your Will or any Estate Planning matter, contact our Wills & Estates team by email or by telephone +61 3 8540 0200.