Each state and territory has its own Power of Attorney (POA) and enduring guardian rules and requirements. Generally we expect that the legal systems work well enough to deal with documents prepared in different states of Australia, however there could be problems with POAs as the requirements for witnessing and signing documents differ in each state. In recent times there has been much debate in Victoria about what has become known as assisted dying legislation so it is worth taking a look at what this really means.

Currently Victoria recognises a medical POA in preference to a general personal POA – Victoria is in fact the only state that recognises specific medical POAs. Where no medical POA exists your next of kin steps into your shoes to assist with medical decisions if we can’t make the decisions ourselves.

In Victoria it is currently also possible to prepare advanced health care directives specifying your beliefs, life preferences…etc.

CHANGES from 12 March 2018

From this point Victorians will have a greater say in their medical treatment after they have lost the capacity to make decisions. The new laws specify when a person has lost decision making capacity and when a medical treatment decision making person is able to make decisions on our behalf. From 12 March 2018, no new medical enduring POA’s will be valid but existing medical POAs continue to be valid as long as they were prepared and executed properly.

It is important to note that the new rules are not meant to promote assisted dying. From 12 March the new rules specify that;

If no decision maker has been named to make health decisions for us – our defacto partner or spouse as the case may be, steps into our shoes for this purposes if none exist then it’s the next of kin. I have to say having a person making health decisions for us if the relationship is “on the rocks” is a scary thought. As to is the situation of relying on the next of kin when there is family money “up for grabs”, while blended families may include people with different views on the best way forward.

Having a legal document in place would appear to be a prudent choice.

Advanced care directives will take the place of medical POAs being legal documents that can include legally binding instructions as to future medical treatment we may want to consent to or refuse to have. It is possible to include a Values directive indicating our values/preferences for future medical treatment.

The new rules provide Medical decision makers with the power to make decisions, but they MUST consider;

  • What decision they believe the person would make themselves in the given set of circumstances, while considering;
  • If there is a valid advance care directive and what it states;
  • Next – if no directive, then any wishes left by person such as a statement of wishes;
  • Next – if the above do not exist, finally the terms of any enduring medical POA.

If you have an existing medical POA or would like an idea as to what is involved in putting an advanced care directive in place we can discuss your options and provide a quote as part of a stand-alone statement of wishes or a more comprehensive estate plan. Contact Paris Financial on 03 8393 1000.

Steve Wildes, Partner, Paris Financial

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