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Introduction

An Enduring Power of Attorney (Medical Treatment) is a legal document where you (the donor) appoint someone (the agent) to make medical treatment decisions for you - like agreeing to medication or surgery. Enduring means it continues (endures) when you are unable to make these types of decisions for yourself.

How does it work? You complete, sign and have witnessed an Enduring Power of Attorney (Medical Treatment) form - giving power of attorney to someone you choose. The power begins when you are unable to make decisions. Your agent's decisions have the same legal force as if you had made them yourself.

Why would I give someone this power? We recommend everyone consider having an Enduring Power of Attorney (Medical Treatment). It is one of the ways you can have control over who will make decisions on your behalf if you are ever unable to do so yourself.

What type of decisions can an agent make? An agent can agree to or refuse medical treatment. They can only refuse medical treatment if: the treatment would cause you unreasonable distress, or, the agent reasonably believes that you would consider the treatment unwarranted.

An agent's decision takes precedence over those of an enduring guardian you may have appointed who has healthcare powers. An Enduring Power of Attorney (Medical Treatment) cannot be used to make financial, legal or guardianship decisions.

For further information about these powers see the BJT Legal fact sheet, Enduring Power of Attorney (Financial)

Are there medical decisions that my agent cannot agree to? An agent cannot agree (consent) to the following medical procedures: those likely to lead to infertility, your involvement in medical research, termination of a pregnancy or removal of tissue for transplant.

Before any of these procedures can be carried out, the agent must apply to the Guardianship List of the Victorian Civil and Administrative Tribunal (the Tribunal) for a decision.

Note: The agent cannot refuse medical treatment to alleviate pain or suffering when a person is dying (palliative care).

Who can appoint an agent? You can appoint an agent if you are over 18 years of age and have the capacity to make the appointment.

What is capacity? To have capacity is to know what you are doing, to understand the consequences of your actions and to make choices based on your knowledge and understanding. The test for capacity to make an Enduring Power of Attorney (Medical Treatment) is that you understand: the powers of the agent, that the power will operate if you lose the ability to make medical treatment decisions, that you can revoke these powers whilst you have capacity and once you lose capacity you will not be able to supervise the use of the powers

If you do not have sufficient capacity, the 'person responsible' (usually your next of kin being your closest family member) or a guardian appointed by the Guardianship List can consent to medical treatment decisions for you.

Choosing your agent An agent must be over 18 years of age and have the capacity to be your agent. You can appoint any person you choose, as long as they agree to take on the role. They should be someone that you trust to respect and carry out your wishes. You can also choose to appoint a second person (an alternate agent). They can only make decisions on your behalf when the agent is unable to.

Responsibilities of the agent. The agent must: act in your best interests, and wherever possible, make the same decision that you would have made avoid situations where there is a conflict of interest.

To help the agent understand your views about possible medical procedures (e.g. the use of a life support system), we suggest you discuss this with them and write down your wishes. When the donor dies, the Enduring Power of Attorney (Medical Treatment) ends.

How do I make an Enduring Power of Attorney (Medical Treatment)? BJT Legal can assist you in preparing and explaining to you what is required. Witnesses to the signing of the form have to be assured that you, as donor, know what you are doing (have capacity) in making the power of attorney. There are restrictions upon who can be a witness. If there is any question about your capacity, an independent medical assessment should be obtained.

What if I change my mind? You can cancel (revoke) the appointment at any time as long as you understand the nature and effect of revoking the power. You can revoke the power by telling the agent that their power is withdrawn or by destroying the enduring power of attorney document and any copies. We recommend that you also complete a Revocation of Enduring Power of Attorney form and give a copy to your agent. If you appoint a new agent, any earlier appointment is automatically revoked, but you should still notify the first agent that their power has been revoked.

Safeguards You do not have to register or send the form anywhere. You should keep the original form in a safe place. BJT Legal are pleased to store such documents free of charge.

If an agent is not acting in your best interests, you should seek advice from our expert accredited specialist staff.

Andrew Byrne Specialist in Wills and Estates

BJT Legal, 38 Lydiard Street South, BALLARAT 3350 Telephone (03) 5333 8888 or Email: abyrne@bjt.com.au.

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