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How to appoint a decision-maker

Information about the procedure for formally appointing a person to be a medical decision-maker to make decisions about treatment after a person loses capacity to make decisions for themselves.

There are several formal processes to be carried out when appointing a person to make future decisions about medical treatment when the person no longer has the capacity to make those decisions themselves.

An appointment of a medical treatment decision-maker must be:

  • written in English
  • properly signed
  • properly witnessed
  • accepted by each person appointed.

See s. 28—Medical Treatment Planning and Decisions Act 2016 (Vic) and r. 6—Medical Treatment Planning and Decisions Regulations 2018 (Vic).

Can more than one decision-makers be appointed?

Yes, more than one person can be appointed as a medical treatment decision-maker, however the person to make the decision will be the first person listed in the appointment document who is available and willing to act at that particular time. If that person is unable to make the decision, then the responsibility falls to the next person mentioned. Therefore it is important to decide whose name to write first.

See s. 28(2)—Medical Treatment Planning and Decisions Act 2016 (Vic).

Signing the document

In most cases the person making the directive must sign the document. However the person may direct another adult to sign on their behalf provided that:

  • that person is not also a witness to the signing of the document, and
  • is not being appointed as a medical decision-maker.

See ss. 28(1)(d), 37—Medical Treatment Planning and Decisions Act 2016 (Vic).

When does the appointment commence?

The appointment comes into force the day that it is made. It remains in force until it is properly revoked or the person who is appointed resigns from their position.

See s. 38—Medical Treatment Planning and Decisions Act 2016 (Vic).

Witnessing and certifying the document

The document must be signed in front of 2 adult witnesses. The witnesses must sign and date the document in front of the person making the appointment, and in front of each other. A witness cannot sign if they have been appointed as a medical decision-maker by the person making the advance care directive.

See s. 36—Medical Treatment Planning and Decisions Act 2016 (Vic).

Qualifications

At least one of the witnesses must be an authorised witness. An authorised witness is either a medical practitioner or a person who is authorised to take affidavits. These qualifications are listed in the Victorian Evidence (Miscellaneous Provisions) Act 1958. They include:

  • lawyers
  • judges, associate judges and court prothonotories or registrars
  • bail justices, public notaries and justices of the peace
  • some VCAT members
  • members or former members of Victorian or Commonwealth parliaments
  • police officers in charge of a police station (above the rank of sergeant)
  • some public servants
  • local councilors.

This witness must write their qualification on the document.

See ss. 3, 36—Medical Treatment Planning and Decisions Act 2016 (Vic) and s. 123C—Evidence (Miscellaneous Provisions) Act 1958 (Vic).

What the witnesses are certifying

When the witnesses sign the document they are certifying that the person making the appointment:

  • appeared to have decision-making capacity
  • appeared to understand the nature and consequences of making the appointment
  • appeared to voluntarily and freely sign the document
  • signed the document in front of 2 witnesses.

The witness must also certify that they have not been appointed as a medical treatment decision-maker for the person making the advance care directive.

See s. 36(2)—Medical Treatment Planning and Decisions Act 2016 (Vic).

Accepting the appointment

To be valid the person appointed must formally accept the appointment. Each appointee must sign the appointment document, stating that they understand their obligations and undertake to:

  • act in accordance with the preferences and values of the person making the appointment
  • promote the personal and social wellbeing, respecting their individuality
  • have read and understood any advance care directive made.

This must be witnessed by an adult who certifies that the person signing the document.

See s. 29—Medical Treatment Planning and Decisions Act 2016 (Vic).

Revoking the appointment

A person who made the appointment can revoke the document if they have decision-making capacity. The process for doing this is the same as the procedure for appointing the medical treatment decision-maker.

If the appointment is revoked the person who revoked the appointment must take reasonable steps to let the appointee know.

See s. ss. 29, 30, 40—Medical Treatment Planning and Decisions Act 2016 (Vic).

More information

Legislation

Medical Treatment Planning and Decisions Act 2016 (Vic)

  • s. 26—appointment of a medical treatment decision-maker
  • s. 28—formal requirements
  • s. 29—acceptance of the appointment by the decision-maker
  • s. 30—revoking the appointment

See Medical Treatment Planning and Decisions Act 2016 (Vic).

Medical Treatment Planning and Decisions Regulations 2018 (Vic)

  • r. 6—formal requirements for appointing a medical treatment decision-maker
  • r. 7—formal requirements for appointing a support person

See Medical Treatment Planning and Decisions Regulations 2018 (Vic).

Evidence (Miscellaneous Provisions) Act 1958 (Vic)

  • s. 123C—list of professionals who are qualified to take affidavits in Victoria

See Evidence (Miscellaneous Provisions) Act 1958 (Vic).

Updated