My parent has lost capacity: who can make medical decisions for them?

When a loved one has lost capacity and can no longer make medical decisions themselves and they have not prepared an Appointment of a Medical Treatment Decision Maker (often called a medical power of attorney), it can be hard to know who is able to make medical decisions for them when they are required.

The Medical Treatment Planning and Decisions Act 2016 (Vic) (the Act) regulates the making of medical treatment decisions for those who are incapable of making them for themselves and sets out who the default person is for making these decisions.

What are Medical Treatment Decisions?

Medical treatment decisions includes decisions to consent or refuse the following medical treatments by health practitioners:

  • physical therapy;
  • surgery;
  • treatment for mental illness;
  • dental treatment;
  • palliative care; and
  • treatment using prescription medications.

It involves making these decisions for the purpose of diagnosing physical or mental conditions, preventing illness and improving the quality of one’s life. These decisions can be complex.

How do I know if my loved one no longer has capacity to make Medical Treatment Decisions?

For a person to have decision making capacity for medical treatment decisions, they need to be able to understand the effect of the decision, understand and retain information relevant to the decision, be able to use that information and weigh the information up as part of the process to make the decision.

An individual also needs to be able to communicate the decision and express their view and needs about the decision.

Who is the person who can make these Medical Decisions?

If you believe someone in your life lacks decision making capacity to make medical decisions, Section 55 of the Act sets out who the default medical treatment decision maker is (if they have not appointed a Medical Treatment Decision Maker and they don’t have a Guardian empowered to make medical decisions).

The default medical decision maker will be the first of the following persons who are in a close and continuing relationship with the person, provided they are reasonably available, willing and able to make these decisions:

  1. A person’s spouse or domestic partner;
  2. If they do not have a spouse/partner, a person’s primary carer;
  3. If there is no primary carer, a person’s adult children and, if more than one, the eldest; or
  4. If a person does not have children, their eldest surviving parent;
  5. If a person has no surviving parents, their eldest adult siblings.

What if the default person under the Act is not making the right decisions?

If a person under the Act is making medical decisions for an individual which you don’t believe are appropriate or consistent with the person’s wishes, you can apply to the Victorian Civil and Administrative Tribunal (VCAT) for the appointment of a Guardian with power to make medical decisions. A Guardian will be able to make medical decisions for an individual once appointed, and will have duties they have to uphold in taking on the role.

VCAT can appoint a family member, an independent person or the Office of the Public Advocate as someone’s Guardian. Guardianship applications can become disputed if there is a conflict between family members (or other relevant persons) about who is the most appropriate person to be the Guardian.

In any application made for the appointment of a Guardian, VCAT will always consider the person’s wishes before deciding whether to appoint a Guardian and who to appoint. VCAT cannot appoint a Guardian unless satisfied that the person is unable, because of their disability, to make the decision/s themselves.

How we can help

If you are concerned that medical decisions are being made for a loved one that are inappropriate or don’t accord with the person’s wishes, or if there is a dispute about who the proper medical treatment decision maker is, we can advise and assist you to make an application to VCAT for the appointment of a Guardian.

Contact us

Need assistance with Medical Treatment Decisions? Please don’t hesitate to contact our elder abuse and elder law team.

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