Medical enduring power of attorney
A medical enduring power of attorney is a legal document where an individual appoints another person (the ‘medical agent’) with the power to make decisions about medical treatment on their behalf.
Please note that for clarity, OPA uses the term 'medical enduring power of attorney' here for the enduring power of attorney (medical treatment).
Registered doctors and dentists (practitioners) cannot treat a patient without valid agreement (consent) from the patient to undertake the treatment, unless it is an emergency or the treatment is minor. A person who is 18 years or older can consent to treatment if they understand the general nature and effect of the treatment and can make an informed decision. If a person lacks this capacity to understand, another person must make decisions on their behalf.
The law in Victoria specifies a hierarchy of people who can consent to medical treatment on behalf of someone who is not able to consent to the treatment themselves. A medical agent appointed under a medical enduring power of attorney is first in the hierarchy.
In addition, only a medical agent appointed under a medical enduring power of attorney or a VCAT appointed guardian with powers to make decisions about medical treatment can refuse medical treatment on behalf of a patient.
The person who makes medical enduring power of attorney appointment must be 18 years of age or older and have capacity to make the appointment.
Making a medical enduring power of attorney
The only decision is who to appoint as the medical agent, because the powers and timing of a medical enduring power of attorney are set by legislation. The appointment begins only if and when the person who made the appointment (the principal) is unable to make decisions about their medical treatment. They may have lost capacity permanently, such as through dementia or an acquired brain injury, or it might be temporarily, for example if they are unconscious as a result of an accident or illness.
The person appointed should be someone that the principal trusts to respect and carry out their wishes. A second person can be appointed as an alternative agent. They can only make decisions when the medical agent is unable to.
Once the person is chosen, it is important that they fully understand the wishes of the principal who appointed them. This is because a medical agent can only refuse medical treatment on behalf of the principal if:
- the medical treatment would cause unreasonable distress to them or
- there are reasonable grounds for believing that the person would consider the medical treatment unwarranted.
To help the medical agent understand the views of the principal about possible medical procedures (for example, the use of a life support system), OPA suggest the principal writes down their wishes and discusses their views with their medical agent. See Plan your future care for more information about this.
The principal should complete the medical enduring power of attorney appointment form according to the instructions but shouldn’t sign it until they have checked witnessing requirements and arranged for witnessing of the signatures.
Two witnesses are required and one must be someone authorised to witness statutory declarations. The medical agent or alternate agent cannot be a witness.
Read information about:
- how the form should be signed and witnessed if an interpreter is needed
- if the person has a physical disability that means they cannot physically sign the form themselves.
The Department of Justice & Regulation website has a list of people who can witness statutory declarations.
Powers of attorney forms are not registered in Victoria. They need to be kept by the person who made them. Powers of attorney forms should not be sent to OPA.
The principal (the person who made the power of attorney) should keep the original form in a safe place and keep a certified copy for everyday use. They could also carry a card in their purse or wallet that has the details of their agent.
The principal should give a certified copy of the appointment form to their agent. They may want to give a copy to anyone else who may need to be involved, such as a doctor.
Enduring powers of attorney can be certified by people authorised to administer an oath (an oath is not a statutory declaration).
The Department of Justice and Regulation website has a list of people authorised to affidavits.
A medical enduring power of attorney ends under any of the following circumstances:
- the principal (the person who made the appointment) revokes the power while competent (have capacity) to do so
- the principal later appoints another agent
- VCAT revokes the power
- the principal dies
- the medical agent dies (where there is no alternate agent)
- the medical agent and alternate agent die.
The principal can revoke their medical enduring power of attorney at any time, so long as they have decision making capacity to do so.
The principal can revoke a medical enduring power of attorney by telling their medical agent that their power is withdrawn and destroying the medical enduring power of attorney and any copies.
OPA recommends that the principal revokes the power by filling out the ‘Revocation of enduring power of attorney (medical treatment)’ form provided here (see right menu.) OPA also recommends the principal signs the form in front of a witness. The principal should give a copy of the revocation form to their medical agent and their alternate agent, if applicable.
The principal should keep the revocation form for their records and a record of when they gave a copy to their medical agent/alternate agent. Completing the revocation form helps to make sure that the medical agent/alternate agent understands that the principal has revoked the power.
The medical agent/alternate agent should return the enduring power of attorney (medical treatment) document and any copies. It is also necessary for the principal to notify any relevant people or organisations such as their doctor or health service providers that they have revoked the power.
If a person appoints a new medical agent, any earlier appointment is automatically revoked (cancelled), but the principal should still notify the first agent that their power has been revoked.
Resignation of the agent
If the agent no longer wishes to accept the appointment they should communicate this to the person who appointed them. If this person is still competent then they can make other arrangements if they wish.
If the agent resigns, the enduring power of attorney (medical treatment) no longer has any effect.
The alternate agent may only act if the agent:
- cannot be contacted
- no longer has capacity.
In this event, the alternate agent is required to complete a statutory declaration. OPA’s Advice Service can provide advice to the alternate agent about the process involved.
This material is provided for general information only. Please see the Disclaimer on OPA's website for more details.