Estate Planning Back in Focus

New legislation is being developed to give Victorians greater control over what medical treatment they receive in the future. Some of the key changes that have been proposed include;

Why is there a need for change?

The Government says the proposed changes will simplify the existing legal framework and give patients a greater say in what medical treatment they receive. The current legislative framework is inconsistent and a new Act is being designed to create a comprehensive legislative framework which will ensure that health practitioners understand and are required to comply with the instructions and values that have been expressed by patients, once those patients have lost capacity. This represents an important “life choice” for our clients that have expressed dissatisfaction with the current laws.

What will the effects be?

The major changes are summarised below:

• A person will be able to make a legally binding advance care directive as to whether they consent to or refuse medical treatment for any current or future conditions. Currently, it is only possible to refuse medical treatment for existing conditions.
• A person will be able to complete an advanced care directive which may include specific instructional directives, or value directives. All registered practitioners will be required by law to act pursuant to any instructional directives, and to give as much weight to any value directives as is reasonably possible. Non-compliance may constitute unprofessional conduct and may result in a practitioner being de-registered.
• Advanced care directives will allow people to designate a medical treatment decision maker who will make medical decisions on behalf of that person when they lose capacity. Also, a support person may be nominated who will assist the person in making and communicating their decisions.
• A medical treatment decision or medical research procedure decision will be determined with reference to a single test determining whether the decision is consistent with the person’s preferences, values and rights. The existing legislative framework contains various tests and considerations which are inconsistent.
• The new Act will introduce a presumption that a person has capacity. Certain illnesses will often result in a person’s capacity varying over time, and as such it is proposed that each new medical decision requires a new assessment of whether the person has capacity. This will help rectify the current framework which provides for a range of different tests for determining a person’s capacity.
• It is proposed that people under the age of 18, if they are capable of understanding the effect of certain medical treatments, will be able to make legally binding advanced care directives. This is to ensure that, where possible, the person who will be most affected by a decision is the person who makes that decision.

Whilst the Act will aim to enhance medical decision making for patients, the position paper stresses that it will not make any changes to what currently constitutes unlawful medical treatment, specifically, physician assisted dying.

Paris Financials, Steve Wildes adds “However for our clients that are affected by these changes we will be able to review the existing estate plan and any Powers of Attorney and incorporate the changes with the assistance of an experienced legal team.”

Should you wish to discuss your estate planning further please contact Steve Wildes on #03 8393 1000.

Source:  Moores