What happens if I have not appointed a Medical Treatment Decision Maker?
Quite often, people suddenly become ill unexpectedly and are unable to make medical decisions for themselves.
If the ill person has appointed a Medical Treatment Decision Maker, the Medical Treatment Decision Maker will make medical decisions based on the ill person’s values and medical preferences.
However, what happens if no Medical Treatment Decision Maker is appointed?
If no one has been appointed, the medical practitioner will ask the following people to make medical treatment decisions, in the following order:
Your spouse or domestic partner
Your primary carer, or
The first of the following and, if more than one person fits the description, the oldest of those persons:
a. Your adult child
b. Your parent, or
c. Your adult sibling.
The difficulty is, if you have not appointed a Medical Treatment Decision Maker, you have no say over who will make decisions for you. The decision maker may be a relative who does not know (or won’t follow) your values and preferences for your medical treatment.
If a Medical Treatment Decision Maker hasn’t been appointed, and/or there is a dispute over the decisions the Medical Treatment Decision Maker is making, an individual can make an application to the Guardianship List at the Victorian Civil Administrative Tribunal (VCAT).
This application will determine whether or not a person needs a substitute decision maker. Under the Guardianship and Administration Act 2019, VCAT has the power to appoint a guardian and/or an administrator.
In relation to a child, the Medical Treatment Decision Maker is the child’s parent, guardian or another person with parental responsibility who is reasonably available and willing and able to make a medical treatment decision.
To avoid uncertainty around who will make your medical treatment decisions (and the future legal expenses that may flow from this uncertainty), it is advisable to proactively appoint a trusted Medical Treatment Decision Maker.
Author: Wills and Estate Lawyer Mark Murnane
DISCLAIMER: This article is provided for general information purposes only. It does not constitute specific legal advice or opinion. Although our aim is to provide you with as accurate information as possible, you should not act or rely upon the information in this article without seeking the advice of an experienced lawyer who specialises in the particular area of law relevant to your inquiry. Please do not to hesitate to contact Murnane Legal to make further inquiries or to make an appointment to discuss the specifics of your situation.
