Estate Planning: What happens when there is no legally binding medical decision maker in place for a parent?

A family can be thrown into a state of panic and indecision when a parent suffers a serious accident or unexpected medical event, making a parent incapable of making a medical decision. Having all family members on the same page managing these critical decisions together can be difficult in times of stress and especially if there is no legal directive in place.

In Victoria, legal, financial, and personal decisions can be made on someone’s behalf if an Enduring Power of Attorney is in place. This is different for medical decisions, which can only be made when a legal document called ”The Appointment of Medical Treatment Decision Maker” is completed. The Medical Decision Maker is legally authorised to make medical treatment decisions on your behalf. The appointment becomes effective once you become unable to make these decisions for yourself, and it does not take effect if you are only briefly incapacitated or after you recover from a serious medical episode.

It is essential that the person nominated is trusted by you and they are willing to accept their responsibility and keep detailed records. If no medical directive is in place the courts may appoint a decision maker/guardian for this role. This is a costly process and takes considerable time.

It’s important for you and your family to plan for these situations before they occur. If something serious happens, it is too late to put something in place after the event.

An “Advanced Care Directive” is another legal document that expresses your preferences, goals and values for your future care which are to be followed by a health professional and is legally binding. This may include your decision to accept certain treatments or the refusal of treatment. This document should be uploaded to your health records as well as shared with all family members.

By completing the above two directives well in advance of any medical event, you are providing clear and concise directions for family members on how you want your health to be treated.