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Enduring Power Of Attorney (Medical Treatment)

By accepting the position as agent (Attorney) of the donor under the Medical Treatment (Enduring Power of Attorney), the Attorney has responsibilities to the law and to the donor to make health care decisions for the donor if the donor becomes mentally incompetent. If the donor is unable to make health care decisions due to age, illness or other reason, the agent has the authority to make decisions about the donor’s medical care and treatment in consultation with the donor’s medical practitioners.

The Attorney can only make decisions if the donor becomes mentally incompetent. If this occurs, the Attorney can make decisions about the donor’s medical treatment. For example:

a)    An operation; or

b)    Medicines, drugs, etc

However, the Attorney must take into account what the donor’s wishes would have been in the circumstances and is required to discuss the proposed decisions with the treating doctor. As well as deciding what treatment is appropriate, the agent can refuse treatment on behalf of the donor. To do this, the treating doctor and another witness must be satisfied that the agent:

a)    Had sufficient information about the donor’s state of health;

b)    Understood this information; and

c)    Signs a Refusal of Treatment Certificate

There must also be reasonable evidence that the donor would have considered the treatment unnecessary or that it would cause the donor unreasonable distress. However, the agent cannot refuse:

a)    Food and water or

b)    Palliative care (being the provision of reasonable medical procedures to relieve pain suffering and discomfort)

If an alternate agent is appointed, i.e. a person who can make decisions if the original attorney is unavailable, the alternate agent can only make decisions if they sign a statutory declaration that says the original attorney is dead, mentally incompetent or cannot be contacted.

This type of power of attorney will last until:

a)    The donor signs a new medical enduring power of attorney;

b)    The donor cancels it (the donor must be mentally competent to do this);

c)    The donor dies; or

d)    It is cancelled or suspended by the Victorian Civil and Administrative Tribunal because it is not being used in the donor’s best interests.


Behan Legal assists and advises on these important issues. For an appointment, call 03 9646 0344 .

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