Future planning in the time of COVID-19
Updated: 4 December 2020
The COVID-19 pandemic has prompted more people to think about their future planning, with many now considering making legal documents such as an advance care directive or enduring power of attorney.
Sometimes people think they should start with the legal documents.
However, by taking time to reflect on what is important to you, and by having conversations with those close to you, ensures that if you ultimately choose to complete legal documents, they will reflect what you really want.
These are complex documents that should not be completed in a rush.
Recently, there have been temporary (until 21 April 2021) legislative changes that allow for enduring powers of attorney to be electronically signed and witnessed with all persons in separate spaces connected by audio-visual link. Advance care directives and appointments of medical treatment decision makers, however, cannot be witnessed remotely.
If you are considering making enduring powers of attorney, OPA’s advice is that face-to-face witnessing – remembering this can still be done while remaining 1.5 metres apart – should be done wherever possible.
As a last resort, if there are no other options, remote witnessing of enduring powers of attorney may be possible under the temporary regulatory changes.
Remote witnessing is complex and there are practical difficulties involved in adhering to all the requirements of the regulations. If a document is not witnessed in a valid manner, it may not be legally binding. It is therefore recommended that people use a lawyer to ensure all requirements are met. If this is not possible, visit the Department of Justice and Community Safety website for important information on electronic signing and remote witnessing
What happens if you don't have completed forms?
If in the future, you lack the decision-making capacity to make a specific decision and there are no formal appointments in place, an application can be made to VCAT for the appointment of a guardian or administrator.
These appointments effectively give the same powers as can be given under an enduring power of attorney. VCAT can also appoint a guardian to make medical treatment decisions). VCAT will not make these appointments if matters can be resolved by more informal means.
What can I do now to ensure my wishes are known?
Future planning and advance care planning are not just about completing the statutory documentation. There is much you can do now even if it is not currently possible to have documents witnessed.
It is a good idea to reflect on, discuss with others and write down your wishes, preferences and values about a range of matters. If, in the future, you lack the decision-making capacity to make a specific decision, this can help those who are lawfully empowered to make decisions for you.
Medical and health related matters
Consider your preferences and values for medical treatment.
Discuss these preferences and values with the person who would be your medical treatment decision maker or with others who have an interest in any future medical treatment for you.
Write down your preferences and values for medical treatment in any way you wish. It is important to be clear. Check with someone else whether they think you are being clear.
Make sure you know who would be legally able to make decisions for you if you could not make medical treatment decisions for yourself.
If you would not want this person to make decisions for you because you do not have a close and continuing relationship with them then document this.
If there is a person you would wish to appoint but cannot due to inability to have the document (appointment of a medical treatment decision maker) witnessed write this down anyway.
In the event of an application to VCAT for the appointment of a guardian this will be relevant information to assist VCAT with making orders.
Personal matters (such as where you live, who you see and services you receive
If you have clear preferences for such matters, then document this. If you do not have an enduring power of attorney for personal matters but if in the future someone needs to make decisions about such matters for you then knowing your preferences will help them. Also, if there is someone you would prefer to be appointed guardian then document this.
If you cannot make an enduring power of attorney for financial matters then there may be other things you can do to ensure that your financial affairs can be managed effectively in the event that you cannot make decisions for yourself due to lack of decision making capacity.