22.10.18

Meghan is an Australian legal practitioner in her 9th year of practice. Her practice specialises in doctor, dentist, medical practice and other health professional clients. Her practice assists clients with everything from wills and estates in their personal lives to purchasing, running or establishing a medical practice. Meghan is happy to be contacted on (03) 9583 6533 to discuss any aspect of advance care planning.

CONSIDER THE FOLLOWING SITUATION:

Tom is a healthy person in his 40s. He did not prepare any advance care planning documents but he had hinted to his family members that if he was ever in a terrible medical state, that he Shockdid not want to be his family’s burden and would instead want to pass away easily for him and his family. This was treated as a joke amongst his family members as they believed Tom had a long way to go. Tom had a car accident a month later and his doctors advised his family that he would be in a vegetative state for the rest of his life. The doctor consults Tom’s family for a decision: To let him go or to continue using machines and tubes to keep him alive? If Tom had an advance care plan in place, this decision would not have to be considered by his family as his wishes would be clearly known.

Intro

When things happens suddenly, your family or friends caring for you will be put in a spot where difficult decisions may need to be made for you without knowing what your wishes are. By effectively preparing an advance care plan, your thoughts and wishes about medical treatment and decisions are recorded and therefore, respected at times where you are not able to communicate them.

Documentation

The following documents should be included in any comprehensive advance care plan in Victoria:

1. Statement of Choices
A Statement of Choices is designed to inform your power of attorney and doctors of your medical treatment wishes. It is not legally binding, unlike an Enduring Power of Attorney (Medical). In making this Statement of Choices, it is strongly recommended that your wishes be discussed with the power of attorney, family and doctor. If you become incapable of making decisions, the Statement of Choices will assist your power of attorney and doctors in making decisions that are in your best interests.

2. Enduring Power of Attorney – Medical
You can appoint a person or persons, jointly, on your behalf to make medical decisions about your medical treatment (such as agreeing to or refusing surgery), in circumstances where you are legally incapable to do so. This type of power does not come into effect until you are legally incapable of making these types of decisions for yourself.

Choosing a Power of Attorney

When choosing a Power of attorney for your medical treatment you should appoint someone who you can trust can act according to your interests and not their own is likely to be able to take on the role when needed is happy to take on the role is able to take on the role will listen to what you want and respect your preferences even after you have lost legal capacity Amendment or Cancellation of an Enduring Power of Attorney – Medical

You can revoke a power of attorney for medical treatment any time when you have legal capacity by:

A. Telling the power of attorney that their power is withdrawn

B. Destroying the document and any copies

C. Putting it in writing or filling in a revocation form

D. It is revoked automatically upon:

  • Your death
  • A power of attorney becoming bankrupt, losing capacity or dying
  • A power of attorney’s resignation
  • Alternation or revocation of the power by a Court or VCAT
  • Appointment of a new power of attorney
  • The time period for which the power of attorney is in place expiring.

Generally, your power of attorney will decide whether you have lost capacity. They may be assisted by your doctor or health care service.

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3. Refusal of Treatment Certificate (“RTC”)

If you have a current medical condition, you may give legally binding directions about medical treatment that you do NOT want by completing a RTC. A RTC enables you to refuse some or all current and future treatments for your current condition, except palliative care (relief of pain and suffering). Doctors must comply with it when treating you. Please note that a RTC does not apply to new medical conditions that may arise later. If you become unable to make your own decisions and you have a power of attorney (medical) in place, then this person may also complete a RTC on your behalf.

Ideally, all documents should be considered and put in place (except for an RTC, if not required) for any effective and comprehensive advance care planning.

Before Making an Advanced Care Plan

You should consider what sort of medical treatment you want to receive when you become ill, at all stages. For example, consider the following:

  • If treatment could prolong your life, what level of quality of life would be acceptable to you?
  • How important is it to you to be able to communicate with family and friends if you become ill?
  • How will you know what technology is available for use now, and in the future, in certain conditions?

We recommend that you discuss these questions with your doctor who is aware of your medical history prior to putting in place any advance care plan in order that they can explain medical terminology and provide advice to you on these issues.

McMasters’ Solicitors