You can nominate someone you trust to make decisions about your healthcare on your behalf in the event that you suffer an injury or medical condition that affects your ability to make those decisions yourself. To legally empower someone to do that, you give the person 'medical enduring power of attorney'.
Power of attorney
A power of attorney is a legal document which appoints a trusted person (or people) to make decisions on your behalf. In Victoria, a person given power of attorney is called an agent. Anyone over 18 years old and of sound mind, can appoint an agent.
In a medical context, the agreement is specifically about making medical decisions when you are unable to make those decisions yourself, for example, if you are unconscious after an injury. The legal name for the agreement is medical enduring power of attorney.
Reasons to have a medical power of attorney
If you have a medical condition that affects your ability to retain new information and make decisions, giving someone medical power of attorney is a good course of action.
Some examples of conditions that may put you in this position include:
- acquired brain injury
- cognitive (thinking) impairment
- inability to communicate (for example, after suffering a severe stroke)
Other situations where you may choose to give someone medical power of attorney include:
- if you do not want life support at a certain point in an illness or after an accident
- if you are worried you may be injured performing a certain activity, such as playing a high-contact sport.
What medical power of attorney means
When you ask someone to be your medical power of attorney, you make them your agent and give them the power to make all the decisions about your healthcare and medical treatment when you are unable to. However, they cannot make financial or property decisions for you. That is a different type of power of attorney.
Your agent is legally bound to act in your best interests, choose the options you would choose if you were able to, and to avoid situations where they have a conflict of interest, for example, if your agent is your partner and a decision needs to be made about termination of pregnancy.
There are certain medical decisions that an agent cannot agree to, including:
- those that may lead to infertility
- termination of pregnancy
- removal of tissue for transplant.
The circumstances might be different if your capacity to make decisions yourself is only temporary.
How to give someone medical power of attorney
You can arrange your medical power of attorney with your selected person at any time, but their role as your agent only begins if and when you lose the ability to make your own medical decisions. You do not have to lose capacity permanently. For example, if you are injured or ill temporarily, your agent can make medical treatment decisions for you until you recover.
To give someone medical power of attorney, fill in a medical enduring power of attorney form, sign it and have it witnessed by two people. One of the two witnesses needs to be a qualified person, such as a Justice of the Peace. For more information, including a full list of people who can witness this form, visit the website of the Office of the Public . Also make sure that the person who you want to appoint as your agent is not a witness.
Make sure you keep the original form somewhere safe and tell two or three trusted people where it is. You should also give certified copies to your agent and to your doctor. Have your agent’s contact details with you at all times in case of emergency, and tell your close family members and friends who your agent is.
Communicate your views with your agent
It is important to talk to your agent about your views on and wishes for any medical treatment you may need and make sure they are clear about your choices. This could include surgery, types of medication and life support systems. It can be useful to write down your thoughts, using an advance care plan for example, so your agent and the rest of your family and friends are clear about your wishes.
How to change your agent
If you need to change your agent for any reason, fill in a new form nominating a different person. The form with the most recent date will be the binding one. Remember to tell your doctor, close family members and friends that you have done this.
You are not legally obliged to tell your previous agent that you have decided not to give them medical power of attorney any more, but it is a good idea to let them know to avoid confusion when you require an agent. You may also destroy the old form and any copies.
Your role as medical power of attorney agent
If someone wishes to give you medical enduring power of attorney, you are being put in a position of trust. Your first act should be to discuss with the person assigning you as their agent their opinions on particular medical issues, especially things like the use of life support machines and surgical procedures. You may want to write down their wishes to avoid confusion later on, especially if some time has passed since you were assigned it.
Once your role as agent begins (when the person is unable to make their own decisions), it is your responsibility to do your best to make the same decisions the person would make if they were able to. You need to make sure you are always available to consult with any doctors and others in the person’s medical team.
You cannot delegate your authority to anyone else.
Where to get help
- Your doctor
- Victoria Legal Aid
This page has been produced in consultation with and approved by:
Department of Health and Human Services -DHSP&P - Health Service Programs - Continuing Care
Content on this website is provided for education and information purposes only. Information about a therapy, service, product or treatment does not imply endorsement and is not intended to replace advice from your doctor or other registered health professional. Content has been prepared for Victorian residents and wider Australian audiences, and was accurate at the time of publication. Readers should note that, over time, currency and completeness of the information may change. All users are urged to always seek advice from a registered health care professional for diagnosis and answers to their medical questions.