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The information on this page relates specifically to advance care planning laws in Victoria. Find out how to create your plan in Victoria.
Law and policy in Australia and Victoria
All states and territories have legislation and/or policy which outlines how a person with decision-making capacity can record their future preferences for care and appoint a substitute decision-maker. These laws also describe the process for medical treatment decision making for people without decision-making capacity.
In Victoria, this is the Mental Health and Wellbeing Act 2022.
Support person
The role of a support person is to help an individual make, communicate and act on medical treatment decisions. The support person has the authority to access the individual’s health information. This role exists when an individual has decision making-capacity. The support person cannot make medical treatment decisions on behalf of the person unless they are also their medical treatment decision maker.
A support person appointment should be on the recommended Appointment of support person form or similar. The form must be written in English and must contain details of the appointer and the person(s) being appointed. The person(s) being appointed must sign that they accept the appointment.
Document signing must be witnessed by two adults. One of these adults must be a person authorised to witness affidavits or a medical practitioner.
Substitute decision-maker
A substitute decision-maker will make medical treatment decisions on behalf of a non-competent person.
In Victoria, the substitute decision-maker can be:
- chosen and appointed by the individual as a medical treatment decision maker(s)
- a guardian appointed by the Victorian Civil and Administrative Tribunal (VCAT)
- a person with a close and continuing relationship with the individual chosen in the following order (this person becomes the medical treatment decision maker):
- the person’s spouse or domestic partner
- the person’s primary carer
- an adult child (eldest to youngest)
- a parent (eldest to youngest)
- an adult sibling (eldest to youngest).
An appointment by VCAT overrides all other appointments.
Appointing a medical treatment decision maker
A medical treatment decision maker appointment should be on the recommended Appointment of medical treatment decision maker form or similar. It must be written in English, contain details of the appointer and person(s) being appointed. The person(s) being appointed must sign that they accept the appointment.
Document signing must be witnessed by two adults; one of whom is authorised to witness affidavits. Neither witness can be a person who is being appointed.
More than one person can be appointed, however only one person will have the authority to act at any one time. This will be the first person listed, who is reasonably available and willing and able to act. The person being appointed must be at least 18 years old.
The medical treatment decision maker can consent to, refuse or withdraw treatment on behalf of the person. They must act in accordance with any lawful limitations or conditions contained in the form. They must make the decision they believe the person would make (i.e. substituted judgement).
Advance Care Directives
Only people with decision-making capacity can complete an Advance Care Directive. An Advance Care Directive should be on the recommended Advance care directive for adults form or similar.
It may contain:
- instructional directives - a person can provide specific and legally binding directions about treatment that they would consent to, refuse and/or withdraw
- values directives - a person can describe their more general views regarding their values and preferences for care.
An Advance Care Directive must be written in English, include the person’s full name, date of birth, address, and be signed.
The Advance Care Directive must be signed by the person and witnessed by two adults; one of whom is a registered medical practitioner. Neither witness can be a person appointed as a medical treatment decision maker. Witnesses must certify that the person completing the directive has decision-making capacity, that they acted freely and voluntarily, and that they understand the nature and effect of their statements.
An instructional directive must be clearly identified and titled an ‘instructional directive’. Any Advance Care Directive that does not meet the requirements of an instructional directive is considered a values advance care directive.
A Refusal of Treatment Certificate written in Victoria prior to 12 March 2018 is considered to be an instructional advance care directive and is still valid if still clinically relevant.
The role of advance care directives when making medical treatment decisions
Advance care directives in Victoria include Advance Care Directives and the medical treatment decision maker documents.
Any person with decision-making capacity is able to make their own decisions, including decisions related to life-saving treatment. All adults are presumed to have capacity unless there is evidence to suggest otherwise.
Consent must be obtained before any treatment is provided, withheld or withdrawn. If a person does not have decision-making capacity, all reasonable efforts must be made to locate an Advance Care Directive and identify a medical treatment decision maker. The only exception to this is when emergency treatment is required and an Advance Care Directive or medical treatment decision maker is not available.
If there is an instructional advance care directive refusing medical treatment, a health practitioner cannot provide treatment beyond palliative care. A medical treatment decision maker cannot override a valid instructional advance care directive.
If there is a values advance care directive and the person has not completed an instructional advance care directive, the medical treatment decision maker is required to provide informed consent before treatment is provided. The medical treatment decision maker and the health practitioner must consider information in the values advance care directive, but it is the medical treatment decision maker who is required to make the decision.
If an Advance Care Directive and/or medical treatment decision maker cannot be located, the Act outlines a process for proceeding. Steps vary depending on whether the treatment is routine or significant. Information is available from the Office of the Public Advocate.
Changes and revocation
An Advance Care Directive ends when a new Advance Care Directive is completed, a person with capacity revokes their Advance Care Directive, it expires (if an expiry date is included) or the person who made the directive dies. A revocation should be done using the Revocation of an advance care directive form.
A medical treatment decision maker appointment ends if a person with capacity revokes the appointment of their medical treatment decision maker, if all people appointed are unable to act or if the person who made the appointment dies. A revocation should be done using the Revocation of a medical treatment decision maker form.
The person appointed as the medical treatment decision maker can also resign from their appointment. This should be done using the Resignation of a medical treatment decision maker form.
A support person appointment ends if a person with capacity revokes the appointment of their support person, if all people appointed are unable to act, if a new support person is appointed or if the person who made the appointment dies. A revocation should be done using the Revocation of support person form.
The person appointed as a support person can also resign from their appointment. This should be done using the Resignation of support person form.
Under certain circumstances the Victorian Civil and Administrative Tribunal can cancel an Advance Care Directive or a medical treatment decision maker appointment.
Advance care planning in the context of mental health
For people with mental illness who maintain decision-making capacity, advance care planning processes do not change. They receive treatments under the same laws unless treated under the Mental Health Act 2014. An Advance Care Directive can include preferences relating to mental health treatment. Alternatively, an Advance Statement or Nominated Person may be relevant.
Advance care directives for people less than 18 years old
In Victoria, a person less than 18 years may make an Advance Care Directive. To be valid, the Advance Care Directive must meet the same formal requirements as a document completed by an adult.
Additionally, at least one of the witnesses must be a registered medical practitioner or psychologist with specific training and experience.
A person less than 18 years old cannot appoint a medical treatment decision maker but can appoint a support person.
Applicability in other states and territories
In general, a valid Victoria Advance Care Directive will apply in other states and territories in Australia, although there may be some limitations and additional requirements.
Similarly, an appointment of a medical treatment decision maker will usually apply, but there is variation in the laws within Australia. It is recommended that a person obtain specific advice from the Office of the Public Advocate or equivalent in the relevant state or territory.
If a person is permanently moving state or territory, it is recommended that they update their documentation using the recommended form(s) for their new location.
Advance care directives from other states and territories
In general, a valid advance care directive from another jurisdiction will be recognised in Victoria as a values advance care directive and used accordingly. If the specific requirements for a valid values advance care directive have not been met, the document is still recognised under common law and should be used to inform decision-making.
Valid interstate appointments of substitute decision-makers for medical treatment decisions will be recognised as appointed medical treatment decision makers.