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.
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.
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.
The Guardianship POA allows you to appoint loved ones. If you lose mental capacity then they decide your:
But only if you can’t make decisions yourself.
Included in the cost of your Power of Attorney is free advice for your attorneys. Your attorneys are not alone:
Many lifestyle Powers of Attorney built on governments websites do not work. Sadly, it is only after you need to use them does this become apparent. We explain how each States’ Medical POA is signed and used on our law firm’s letterhead. We give ongoing advice until your death.
Legal Consolidated is responsible for lifestyle Power of Attorney. Often when a parent loses mental capacity the children telephone us for help and assurance. For free, we explain how to use the Medical POA and what they need to do.
Further, there are unlimited updates on the POAs. Updated your Medical Power of Attorney as often as you wish.
An enduring guardian makes decisions about:
Obviously, if you are of sound mind then you make these decisions yourself. The Medical Treatment Decision Maker only starts doing the job when you are of unsound mind.
You can update your Medical POA for free. You can update your lifesytle POA as often as you wish for free.
There is no legal requirement for a guardian or Medical Treatment Decision Maker to accept your POA within any time frame. A Guardian accepts your POA many years later. And if you appoint more than one attorney they accept many years apart from each other.
Your Medical Treatment Decision Makers do not need to accept your POA on the same day. Indeed your guardians may be living outside of Australia in different countries. However, your POA will not come into operation for that attorney until that attorney does sign. But the signing can be done when the POA is actually needed.
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:
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 build two Medical POAs. Build the first Medical POA for one state. Build the second Medical POA, as a second document, for the other state. (You carry over the answers from the first document into the second document. This saves you having to answer the questions again.)
Can the guardian turn off life support?
Confusingly, the State 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 gibberish. They confuse the doctor, the lawyer and mum and dads alike.
It is rarely discussed publicly. But many palliative doctors are prepared to dial up the morphine. And the patient dies that night. But this is only after speaking with the guardian.
Dialling up the morphine is problematic.
Also problematic is using the Medical POA to stop medical treatment. The law is untested in Australia. What if the guardians agree with the doctor? This is to turn off life support. When is this legal?
The brave State of Victoria is the first to impose law. This is on people dieing with Medical Treatment Decision Maker. Victoria 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 Medical Treatment Act 2016 started on 12 March 2018 – replacing the Medical Treatment Act 1988 (Vic) (previous Act). It regulates medical treatment decision-making. This includes consent to or refusal of the start 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. This is 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:
The Medical Treatment Act 2016 also regulates supported decision-making. It enables 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 lifestyle POA.
Every State and Territory has some type of Enduring Power of Guardianship. It appoints someone else (attorney) to make decisions on your behalf.
Each State and Territory has a type of Advance Care Directive. This is where you write down what you want if you are, for example, a vegetable. Or you are Jehovah’s Witnesses and do not want blood transfusions.
Your Advance Care Directive states your wishes. This is direct to your medical treatment provider. This is if you are unable to express those wishes for medical treatment.
The names of advance care directives vary between states and territories. To add to the confusion, the scope of medical preferences also varies:
All this sounds wonderful. But giving directions directly to doctors does not work. It is dangerous. In fact, I have never used this word before, but a medical directive is stupid.
Let me tell you why.
Your wife sits down with her doctor and lawyer. Over the next 5 days, she works out all the diseases and problems she may have. For example:
If I have my third stroke and cannot eat but I can use the toilet I want this to happen…
A few years later she has the third stroke. She cannot eat but she can use the toilet.
You pull out the medical directive that she wrote. You turn to page 327. You read out to the medical specialist what your wife wants.
The medical specialist looks at you with a whimsical stare and states
I have no idea what you mean by the word ‘stroke’. But in any event rather than dial-up the morphine, tonight, why not just give her this tablet. She can go home tomorrow to cook your supper. Medical science has changed dramatically in the last two years.
Did not your wife trust you to carry out her wishes as your attorney. Do not damage the Power of Guardianship. Avoid the care directives.
A: We do not mind letters of wishes. They do not have the force of law. But they can be helpful if your spouse or children have forgotten what you want. For example, this is fine:
‘I want to live. So use all available medical treatments. Only withdraw any life-sustaining treatment if, on consultation with appropriate medical professionals, such treatment is deemed futile or non-beneficial.’
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
National: 1800 141 612
Email: [email protected]