Estate Planning is a very significant and important strategy for all Australians, particularly for those involved in business who may also have the added complexity of multiple tax structures such as Companies, Trusts and Self-Managed Super Funds (SMSFs).
An often overlooked element of the Estate Planning process is the importance of medical decisions being able to be made for individuals who lose their decision-making or legal capacity. This may be due to either a temporary or permanent condition arising through illness, accident, old age etc.
In this document we will expand on this subject and briefly discuss two important documents, (i) a Medical Treatment Decision Maker and (ii) an Advance Care Directive which form part of an individual’s ‘Advance Care Plan’.
Whilst this topic can be quite confronting, it can also be a very empowering for individuals and their families. When it comes to medical treatment, certainty and control is something that most individuals aspire to. These two documents ultimately aim to provide peace of mind for all concerned.
In terms of format, documents can vary significantly, particularly from State to State. Importantly our comments are of a general nature and we recommend that you consult with an Estate Planning specialist to ensure the full implications are considered.
Medical Treatment Decision Maker (MTDM)
Prior to 12 March 2018, a Medical Power of Attorney was the legal instrument used to give effect to health related decisions on behalf of an individual. From this date, a person now appoints a Medical Treatment Decision Maker (MTDM). Importantly a Medical Power of Attorney document established prior to this date, is still valid, however it is more limited in scope.
A MTDM can make a medical decision about surgical treatment, treatment for mental illness, prescription medication, palliative care and medical research procedures.
Decisions made by the MTDM must also be made in accordance with what the person who appointed them would have made, if they had legal capacity.
This highlights the need to discuss your preferences and values with the person/s you appoint as your MTDM. This process is made easier if you also complete an Advance Care Directive, discussed below.
While more than one medical treatment decision maker can be appointed, only one medical treatment decision maker can make decisions at any one time.
Advance Care Directive
Under the new laws, provision also exists for the creation of a new legal document known as an Advanced Care Directive, which may include either or both a:
- Values Directive
- Instructional Directive
In a Values Directive, general statements can be recorded about priorities and personal preferences for medical treatment to help guide future health care decisions, including:
- Spiritual, religious or cultural requirements
- unacceptable outcomes for medical treatment after illness or injury
- end of life care
Importantly, values directives are not binding on your medical treatment decision maker.
However, with an Instructional Directive, an individual can legally bind their decision maker(s) to refuse, or apply very specific medical treatments via their Advance Care Directive. This can be done by specifying under what circumstances, certain medical treatments should / should not be implemented. For example an instructional directive may include a direction as to the use of artificial respiration and feeding, surgical procedures, blood transfusions and renal dialysis.
If an individual chooses to make both an instructional and values directive, the instructional directive will provide the medical professional as to the individuals consent or refusal to specific treatment while the values directive will provide guidance as to their personal preferences.
Who does it apply to?
The Medical Treatment Planning and Decisions Act 2016, which established both the MTDM and ACD applies to all ‘registered health practitioners’ i.e. those regulated by the Australian Health Practitioners Regulation Authority (AHPRA) – as well as ambulance officers and non-emergency patient transport staff. A registered health practitioner includes, but not limited to individuals working in the following fields: medical, nursing, dental, physiotherapy, pharmacy.
Talk to your Doctor and review regularly
One requirement for a valid Advance Care Directive is for it to be witnessed by a registered medical practitioner. Talking to your doctor and treating team will assist you to understand the implications of your decisions, particularly should you wish to include instructional preferences. It’s also important for your Advance Car Directive to be reviewed regularly as advances in medical treatment may mean that your original instructional preferences may no longer reflect your wishes.
- The Australian Guide to Wills & Estate Planning, Andrew Simpson, John Wiley & Sons Australia Ltd, 2019.
- Office of the Public Advocate (OPA)
- Better Health Victoria https://www.betterhealth.vic.gov.au/health/servicesandsupport/advance-care-plans
- Department of Health & Human Serviceshttps://www2.health.vic.gov.au/hospitals-and-health-services/patient-care/end-of-life-care/advance-care-planning/acp-forms