March 7

New Medical Powers of Attorney from 12 March 2018

The Medical Treatment Planning and Decisions Act 2016 provides a framework for making decisions about medical treatment when people do not have capacity to make their own decisions.

The Act is part of a broader shift towards empowering and supporting people to make their own treatment decisions.

The Act does not authorise physician assisted dying and this is a separate issue to advance care planning.

All medical powers of attorney validly executed before 12 March 2018 (under the Medical Treatment Act 1988 ) continue to be valid and applicable and they do not need to be redone .

The existing Enduring Powers of Attorney Financial and Personal are not affected by these changes.

Decision-making capacity

An adult is presumed to have decision-making capacity. To have decision-making capacity a person must be able to do all of the following –

  • understand the information relevant to the decision and the effect of the decision
  • retain that information to the extent necessary to make the decision
  • use or weigh that information as part of the process of making the decision
  • communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gestures or other means.

Advance care directive

A person may only create an advance care directive if they have decision-making capacity in relation to each statement in their advance care directive.

An advance care directive must be witnessed by two adults, one of whom is a medical practitioner.

There are two forms of statement a person may include in their advance care directive:

  • an instructional directive
  • a values directive.

Instructional directive

In an instructional directive a person may either consent to or refuse a particular medical treatment.

If the person subsequently does not have the capacity to make a decision about that treatment, the instructional directive will apply as though the person has consented to or refused the treatment.

Any statement not explicitly identified as an instructional directive, through the use of these words, will be considered a values directive.

Values directive

In a values directive a person may make more general statements about their preferences and values and what matters to them.

If the person has not included a relevant instructional directive, then the health practitioner will need to obtain consent from a medical treatment decision maker to provide treatment.

The medical treatment decision maker must consider the values directive.

Medical treatment decision makers

If medical treatment is clinically indicated and a person does not have decision-making capacity, a health practitioner must obtain consent through an instructional directive, or if there is none, obtain consent from a medical treatment decision maker.

An adult may appoint a medical treatment decision maker when they have decision-making capacity to do so.

If an adult does not have decision-making capacity, the medical treatment decision maker will be the first person who is willing and available in the list below (NB: there can only be one medical treatment decision maker at a time):

  • an appointed medical treatment decision maker
  • a guardian appointed by the Victorian Civil and Administrative Tribunal (VCAT)
  • the first of the following with a close and continuing relationship with the person:
    • the spouse or domestic partner
    • the primary carer of the person
    • the oldest adult child of the person
    • the oldest parent of the person
    • the oldest adult sibling of the person.

If a child does not have decision-making capacity, their medical treatment decision maker will be a parent, guardian or other person with parental responsibility.

Making medical treatment decisions

If medical treatment is required in an emergency to prevent death, serious damage or significant pain or distress, it may be provided without consent to a person lacking decision-making capacity. But not in contravention of an instructional directive of which the health practitioner is already aware.

When providing medical treatment to a person without decision-making capacity (other than in an emergency), a health practitioner must make reasonable efforts in the circumstances to locate an advance care directive and a medical treatment decision maker. This requirement will vary depending on the urgency of the treatment and what is known about the person.

If there is a relevant instructional directive, a health practitioner must comply with it just as if the person has consented to, or refused, the treatment. A health practitioner does not have to provide a treatment if it is not clinically indicated just because a person has consented to that treatment in advance. If there is no relevant instructional directive, the decision must be made by the medical treatment decision maker.

The Act requires a medical treatment decision maker to make the decision they reasonably believe the person would have made. The Act includes a process for determining the decision the person would have made. It says that the medical treatment decision maker must:

  • first consider any valid and relevant values directive
  • next consider any other relevant preferences that the person has expressed and the circumstances in which the preferences were expressed
  • if the medical treatment decision maker is unable to identify any relevant preferences, they must consider the person’s values, whether these are expressed by way of a values directive or otherwise, or inferred from the person’s life.

In making a decision, the medical treatment decision maker must also consider the likely effects and consequences of the medical treatment, including:

  • its likely effectiveness
  • whether these are consistent with the person’s preferences and values.

The medical treatment decision maker must also consider alternative treatment options, including not providing treatment.

If the person’s preferences and values cannot be ascertained, the medical treatment decision maker must make a decision that promotes the person’s personal and social well-being, having regard to the need to respect the person’s individuality.

No medical treatment decision maker

If there is not an instructional directive or a medical treatment decision maker, a health practitioner must obtain consent from the Public Advocate if the proposed medical treatment is significant.

If the medical treatment is routine, the health practitioner may proceed without consent, but must note this on the person’s clinical record.

February 6

Do you have a will? Do you know where it is?

Many Australians are risking their wealth, considering somewhere between 25 and 40 per cent of people die intestate, without a Will in place.

Part of that statistic is influenced also by a loss of documents. So not only is it important to have proper, strong, appropriate documents that fit your plan in place … but you should also know where they are and ensure others know where they are, especially your executor(s). There is no public registry of the Wills nor can you Google it.

Those estate planning documents should also include things like enduring powers of attorney – financial, personal (used to be called guardianship) and medical – documents relating to superannuation and the family trust, as well as a health directive which is the statement laying out your wishes to the next of kin and the health professionals in regards to some terminal illnesses and /or conditions you may be suffering from now or in the future.

The importance of knowing where the documents are cannot be overstated. For example, family discretionary trusts are the single most utilised investment vehicle in Australia today for a multiple of reasons, not the least of which include asset preservation, that is, against claims and also for tax flexibility.

However, often people say that they lost the trust deed. That’s a disaster. So, it is extremely important to know where they are , are the documents in place, do they accurately express that which was intended to be created?Again, as with Wills, there is no public registry of these trust deeds . If you lose them you cannot recover/replace them unlike certificates of title, for example, which can be replaced by a new title issued by Land Titles Office

December 5

Capacity to make decision

Concerns about capacity of a person to enter into legal transactions is not new, nor is the acceptance that capacity is issue-specific and that incapacity is not static and can change. The Law Institute of Victoria (LIV) will be launching its “ Revised Capacity Guidelines” as a guidance for lawyers to assess the client’s capacity to give proper instructions or to participate in a court or similar process. Below are some of the important points as recently published by the LIV president that will be argued and taken into account in addressing this important issue.

Currently, the law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation.

Taking an overview of the many different situations in which courts have been called on to consider questions of capacity – the validity and fairness of transactions, fitness to plead, testamentary capacity, litigation guardians, guardianship and administration statutes, and consent to medical treatment are examples – demonstrates the test of capacity is specific to the issues for which capacity is required. It is hardly surprising, given the complexity of human cognitive and intellectual function, that capacity is related to the nature and complexity of the transaction or decision or the ongoing continuum of transactions that are in issue.

Questions about capacity arise in many areas – much beyond, the elderly, the very young – in the making of powers of attorney or wills and in criminal cases.

Capacity is fluid and can fluctuate in a year, a week or even in the same day. Some welcome legislative guidance can be found in the Powers of Attorney Act 2014 (Vic), such as section 5 of that Act, which requires a person assessing capacity to do so at a time and in an environment most conducive to promoting a person’s capacity.

A person’s capacity may be affected by a number of factors, including: taking certain medications, mental illness, an intellectual disability or an age-related cognitive disability, such as Alzheimer’s, grief, depression, reversible medical conditions or hearing or visual impairments. However, one or more of these factors doesn’t mean that person lacks decision making capacity. Some people may be more capable of making decisions at different times of the day or with practicable and appropriate supports in place.

Clients may have capacity for some decisions, but not for others; capacity is always decision-specific.

November 8

Electronic Conveyancing

We are proud and very excited to confirm that Elizabeth Palumbo from Kelly and Chapman’s Property Department has now conducted the firm’s first electronic conveyancing settlement using the “PEXA” platform.

pexa PEXA represents a leap forward in conveyancing offering our business greater efficiency and our clients’ greater piece of mind that settlements will occur on a “real time basis” and without any unforeseen delays or issues immediately giving vendors access to their sale funds and purchaser’s being transferred onto Title immediately. The way forward in Victoria will be electronic conveyancing and soon, Paper Titles will be a thing of the past

Most certificates of title in Victoria are still in paper form. Land Victoria are in the process of facilitating a bulk conversion of approximately 1.6 million paper certificates of title into electronic form (eCT) meaning that many CTs in Victoria will now be eCTs. Feel free to contact our office with any questions you may have moving forward in this exciting venture.