April 6

Powers of attorney made before 1 September 2015

The Powers of Attorney Act 2014 commenced on 1 September 2015. Are the previous Powers of Attorney valid and how can the Principal revoke them?

Enduring powers of attorney (financial) and enduring powers of guardianship properly made before this date are valid.

Revocation of enduring power of attorney (financial)

A person who made an enduring power of attorney (financial) or enduring power of guardianship before 2015 can revoke the power by:

  • telling the attorney that their power is withdrawn and destroying the enduring power of attorney document and any copies or
  • completing a ‘Revocation of enduring power of attorney (financial)’ form and giving copies to the attorney(s).

It is also necessary to notify any relevant people or organisations who have a copy or knowledge of the power of attorney, of its revocation.

The Victorian Civil and Administrative Tribunal (VCAT) can revoke the appointment of an attorney if satisfied that it is in the best interests of the person who made the appointment to do so, and that person no longer has the capacity to revoke it.

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.

July 3

Changes to the Power of Attorney Act 2014

A Powers of Attorney Amendment Bill 2016 has been introduced to parliament. The Bill proposes to make various changes to the principal Act, the most welcome of which is to clarify that multiple alternative attorneys can be appointed for one principal attorney or supportive attorney.

Other notable changes include:

  • removing the option to make a power of attorney for both financial and personal matters
  • specifying that a later power will revoke an earlier power unless the later power specifies otherwise
  • where an attorney appointed as part of a majority power is no longer acting as an attorney and the remaining attorneys cannot act by majority then they must act jointly.

The Act, if passed, will come into operation on a day to be proclaimed or on 1 May 2017.

August 17

Powers of Attorney – New legislation

The Powers of Attorney Act 2014 (the Act) will commence on 1 September 2015. The purposes of the Act are to:

  1. clarify and consolidate Victoria’s enduring powers of attorney laws
  2. create the role of supportive attorney
  3. improve the protections against abuse of enduring powers of attorney.

Powers of Attorney made under existing legislation will remain valid under the new Act. The Act does not affect enduring powers of attorney (medical treatment), which will continue to be regulated separately under the Medical Treatment Act 1988.

The Act includes only minor amendments to general powers of attorney, which will be called general non-enduring powers of attorney.

The Act consolidates the current enduring power of attorney (financial) and power of guardianship into one enduring power of attorney. The enduring power of attorney will allow people to arrange management of financial and personal matters.

Improved protection

The Act improves protections against abuse of enduring powers of attorney, as follows:

  • Decision-making capacity: The Act introduces a new definition of decision-making capacity and provides guidance about how it should be assessed to protect a person’s right to make their own decisions where possible.  The Act makes a clear statement that a person is presumed to have decision-making capacity unless there is evidence to the contrary.
  • Principles to guide decision-making: Decision-makers acting for a person who lacks decision-making capacity must do so in a way that is least restrictive of that person’s ability to decide. They must ensure the person is given practicable and appropriate support to enable them to participate in decisions affecting them as far as possible. The Act requires an attorney to: give effect to the principal’s wishes; encourage the principal to participate in decision-making; and promote the principal’s social and personal wellbeing.
  • More stringent execution requirements: The Act introduces more stringent requirements for the making and revoking of enduring powers of attorney.
  • Duties of enduring attorneys: The Act clearly sets out duties of enduring attorneys, including to act honestly, diligently and in good faith, and to exercise reasonable skill and care.
  • Prohibition on conflict transactions: The Act introduces new provisions prohibiting conflict of interest transactions, unless authorised or ratified by the principal or VCAT.
  • Gifts: The Act regulates an enduring attorney’s ability to give gifts from the principal’s property.
  • VCAT powers: The Act provides VCAT with additional powers, including the power to order compensation for any loss caused by the enduring attorney in contravening the Act and to provide advice to multiple attorneys on resolution of disputes.
  • Creating new indictable offences: The Act creates new offences for dishonestly obtaining or using an enduring power of attorney, which are punishable by up to five years’ imprisonment.

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