Australian Medical POA (including Guardianships & Victorian Advance Health Directive)

Who looks after you, when you can’t? The government, retirement home or doctors? Should they control your body? Do you trust your family more? If so make an Australian Medical POA. See a Sample here.

Wife trapped in a retirement facility?

Our client had a wife. She was trapped in a high-end aged care facility. She had Alzheimer’s Disease. Our client wanted to get her out. The home said he had no right to touch or move a person. Not even a wife. He rang me in tears. I told him to go home and get the Medical Power of Attorney. He got it. Then he took it to the retirement facility. He got his wife out.

Escape a bad hospital

Our client’s wife was in hospital. The doctors were ‘behaving like Gods, not doctors’. Our client presented the Medical POA. And he moved her to another hospital. There was nothing the doctors could do.

What can a Medical & Life Style Power of Attorney do?

The Guardianship POA allows you to appoint loved ones. If you lose mental capacity then they decide your:

• personal lifestyle
• where you live
• medical treatment

But only if you can’t make decisions yourself.

A Medical POA is also called:

• Enduring Power of Guardianship – Western Australia, Tasmania and New South Wales
• Enduring Power of Attorney – Australian Capital Territory and Queensland
• Advance Personal Plan – Northern Territory
• Appointing Medical Treatment Decision Maker – Victoria
• Enduring Guardianship
• Medical Enduring POA
• Advanced Care Directive – South Australia

You are protected by our law firm

1. you and your POA are protected by our law firm’s professional indemnity insurance
2. read the hints, watch the training videos and speak with us as you build the document
3. you get an unlimited number of updates for the rest of your life for the Power of Attorney
4. for the rest of your life you are able to telephone the law firm anytime. This is for help on how to use the POA
5. your attorneys can telephone us for help on how to use the POA
6. your POA is on a monitoring service, if the POA or legislation change we notify you immediately
7. there is a full money back guarantee for every document you build on our website
8. the POA comes with a letter setting out how to sign and use the POA

Free and ongoing advice for your attorneys on how to use the Medical POA

Included in the cost of your Power of Attorney is free advice for your attorneys. Your attorneys are not alone. Firstly, there is information about how to use the POA in our covering letter. The letter comes with the POA. Secondly, our law firm, at any time, helps them and shows them how to use the POA. We are only ever a telephone call away.

Many homemade POAs are incorrect and incorrectly signed. Sadly, it is only after you need to use them does this become apparent. Our POAs carry the law firm professional indemnity insurance and we explain how they need to be signed and used on our law firm’s letterhead.

We give you and your family ongoing support on the POA. Often when a parent loses mental capacity the children telephone us for help and assurance. We, at no further cost, explain how to use the Medical POA and what they need to do.

Further, there are unlimited updates on the POAs so they can be updated as often as you wish.

What decisions can an enduring guardian make?

An enduring guardian makes decisions about:

1. where you live, whether permanently or temporarily
2. who you will live with
3. whether you work
4. consent to medical & dental treatment
5. protecting life or ‘flicking the switch when in a vegetable like state’

Free updates of your POA – for the rest of your life

Not only is there a money back guarantee on all our law firm’s documents that you build online, also you can update your POA for free. If you ever want to update your POA just email us and we send you a voucher. With the voucher, you can change the POA as you want. You can update your POA as often as you wish for free.

Advantages of our law firm preparing your Power of Attorney

When do the Attorneys need to accept?

There is no legal requirement for an attorney to accept your POA within any time frame. An attorney can accept your POA many years later. And if you have appointed more than one attorney they can accept many years apart from each other. They don’t need to accept your POA on the same day. Indeed your attorneys may be living outside of Australia in different countries. However, your POA won’t come into operation for that attorney until that attorney does sign. But the signing can be done when the POA is actually needed.

Does my attorney need to hold one of the original POAs?

After you build your POA, you print off two copies. You sign both copies. Both copies are originals. There is no legal requirement to hand over one of your original POAs to any of your attorneys. You may, however, wish to do so. At the very least:

1. You should speak to your potential attorneys to make sure they are happy to take on the onerous job of holding the attorney position.
2. Let them know where the POA is kept “at my home in my grey filing cabinet and when it is needed you can get the POA and accept it then”.
3. You may wish to email them a soft copy and the covering letter that we provide so they can understand how it can be used in the future (it can be signed or unsigned, it is just a soft copy). If they need a hand, later on, they can telephone us for advice.

Do I need a Medical POA in every State I live in?

Because Australia is a federation of States each State has its own Medical POA. For example, an NSW Medical POA only works while you are in New South Wales. If you live in two States then you need to build the first Medical POA. And then build the second as a second document. (You can carry over the answers from the first document into the second document. This saves you having to answer the questions again.)

Can the Directive/Guardianship power be used to flick the switch if I am a vegetable?

Does the guardian have authority to turn off life support (see for example in one State the Advocate Office says “make treatment decisions on your behalf to any medical, surgical or dental treatment or other health care (including palliative care and life-sustaining measures such as assisted ventilation and cardio-pulmonary resuscitation)”?

Most States have similar mumbo jumbo statements that confuse, doctor, lawyers and mum and dads alike.

Although it is rarely discussed publically, most palliative doctors are prepared, after speaking with the person holding the medical POA to dial up the morphine (grey market euthanasia service for the terminally ill) to such a level that the patient quietly passes away that night. This is especially the case when the pain killers no longer work – or have never worked – and death is an inevitable outcome for the patient anyway. Where they are still able to talk, such terminally ill end up begging for death. To prolong the unimaginable pain is usually too much for the doctor and the spouse and children.

Dialling up the morphine is problematic. But more problematic is using the Medical POA to stop medical treatment. The law is untested in this area in Australia. Even with the guardian/attorney agreeing with the doctor to ‘turn off’ or not continue with life support, it may be illegal to do so.

The brave State of Victoria was the first to try and impose some law on this. It was the first to allow euthanasia. Victoria’s laws relating to withholding and withdrawing life-sustaining treatment and guardianship are contained in three statutes:

• the Guardianship and Administration Act 1986 (Vic) (‘the Guardianship Act’);
• the Medical Treatment Planning and Decisions Act 2016 (Vic) (‘the Medical Treatment Act 2016’); and
• the Powers of Attorney Act 2014 (Vic) (‘the Powers of Attorney Act’).

The Medical Treatment Act 2016 started on 12 March 2018 – replacing the Medical Treatment Act 1988 (Vic) (‘the previous Act’). It regulates medical treatment decision-making, including consent to or refusal of the commencement or continuation of medical treatment. Some legal documents and substitute decision-making arrangements made under the previous Act continue to apply – where this is the case there is no need to build new Advanced Health Directive. But you can do so by press “Build” above.

In the Medical Treatment Act 2016, medical treatment refers to the following treatments given by a health professional to diagnose a physical or mental condition, prevent disease, restore or replace bodily function resulting from disease or injury, or improve comfort and quality of life:

• treatment with physical or surgical therapy
• treatment for mental illness
• treatment with prescription pharmaceuticals, or approved Medicinal cannabis (under the access to Medicinal Cannabis Act 2016)
• dental treatment; and
• palliative care.

It does not include a medical research procedure.

The Medical Treatment Act 2016 also regulates supported decision-making by enabling a ‘support person’ to be appointed to support the person to make medical treatment decisions, and represent the person’s interests regarding treatment. Supported decision-making is discussed further below.

The Guardianship Act deals with substitute decision-making for people with impaired capacity. The Powers of Attorney Act governs powers of attorney and enduring powers of attorney and, following the commencement of the Medical Treatment Act 2016, it will not relate to medical treatment decisions. However, an Enduring Power of Attorney made under previous legislation immediately before 12 March 2018 will continue to apply.

So the law is still uncertain. The best course of action is to make your Medical POA for the State or Territory you live in. And speak openly with your spouse, children and loved ones that hold that Medical POA.

For legal advice telephone us. We can help you answer the questions.

Adjunct Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
Australia wide law firm
National law firm

Mobile: 0477 796 959
Direct: 08 6389 0400
National: 1800 141 612
Email: brett@legalconsolidated.com