Office of the Public Advocate- Details
- Written by: Margaret Bozik
- Category: General content
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- Documents (SQL): Take Control: An introduction (Booklet)
Contents
Why plan ahead?.
Section 1: Planning.
The planning process
Section 2: Your options.
Your medical treatment decision maker
Advance care directive
Enduring power of attorney
Support for decisions.
Section 3: About the forms
Options for completing the forms
About decision-making capacity
Witnessing requirements.
Links to forms and more information
The information in this guide relates to adults and to Victoria. If you are thinking of making documents to operate in other states, territories or countries, refer to their resources for information, as the legal requirements vary.
Disclaimer: The information in this publication is of a general nature and readers may require legal advice for specific circumstances. The Office of the Public Advocate expressly disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of this publication.
Why plan ahead?
Think about this...
What if an injury, illness or disability meant you needed support to make decisions? Who would you want to support you?
If you became unable to make some decisions, would those close to you know the preferences and values that guide you when you make decisions? For example, decisions about your finances, medical treatment, or how you live. Who would you trust to make decisions for you?
This guide walks you through the process of planning for your future decision- making and explains your options. This can include completing legal documents.
Sometimes people think they should start with the legal documents.
Instead, the Office of the Public Advocate encourages you to start by taking time to reflect on what is important to you and having conversations with those close to you.
If you ultimately choose to complete legal documents, the time you spend planning will ensure these documents reflect what you really want.
Section 1: Planning
The planning process
Planning for your future decision-making is about your important right, as an adult, to make your own decisions.
For this reason, only you can plan for your future decision-making. No one else can do this type of planning for you, although others can support you.
Taking time to work through the steps below is a good place to start.
Think about what is important to you
It is easier to think about what is important to you while you are well.
For example, you may value being in your own home, maintaining connections with people close to you or with your community, or you may have specific activities that you value.
Know your options
It is useful to know the options you have under the law in Victoria. You may choose to make use of some, all or none of these.
In broad terms, you can:
- appoint someone to support you to make decisions
- appoint a person (or people) to make medical, lifestyle or financial decisions for you in the future, if you do not have decision-making capacity to make the decision(s)
- include information for the people you appoint, or instructions or conditions
- make decisions in advance about medical treatment you consent to or refuse.
Once you understand your options, take time to think about them, talk to others, and seek advice if you need to.
Let those close to you know what is important to you
Regardless of whether you choose to make use of any of the options, it is important people close to you understand what you value and your wishes. If they know this, it will help make sure decisions are made as you would want in the future.
The Office of the Public Advocate (OPA) website has tips for how to start a conversation with those close to you.
If there is no one suitable to share this information with, it can nevertheless be helpful to write down your values and wishes.
If someone who does not know you needs to make a decision for you in the future, this information will be helpful.
Think about how you will choose someone
If you decide to appoint a person, or people, who will have legal authority to make decisions for you, think about what is important to you.
For example, you may want someone who:
- is willing to listen to, and act on, your wishes rather than their own
- is trustworthy
- has the skill and time required
- is willing to take on the role with all its responsibilities
- can communicate effectively and is willing to consult with others
- understands and respects your culture and connections with your community
- can manage property and money well.
Risks and safeguards
While the majority of appointments work well, sometimes things go wrong. It may be that the person you thought you could trust to act for you does not keep on top of your needs or misuses your money.
You can reduce this risk. The guide You Decide Who Decides, has tips on how to do this.
If things do go wrong, there are steps you and others can take to stop this, such as applying to the Victorian Civil and Administrative Tribunal (VCAT).
If you do not appoint anyone
It is your choice whether to appoint someone who will have legal authority to make decisions for you. For example, there may be no one suitable, or you think you will be able to make decisions into the future if you have support.
There are safeguards if you do not appoint anyone. The law in Victoria specifies who can make a medical treatment decision for you if you are unable to make the decision (see Medical treatment decision-maker list). No one has automatic legal authority to make other types of decisions for you (such as about your finances or where you live). However, VCAT can appoint someone, if necessary.
An ongoing process
The planning process is ongoing. Your circumstances and wishes may change over time. If you make legal documents, it is a good idea to review these at least every two years.
Section 2: Your options
Your medical treatment decision maker
Identify
In Victoria, the person who has authority to make medical treatment decisions for you, if you are unable to, is called your medical treatment decision maker.
You may not have decision-making capacity to make the medical treatment decision because of an injury, illness or disability.
Medical treatment decision maker list
The Medical Treatment Planning and Decisions Act 2016 states who your medical treatment decision maker is.
They are the first person on the list on the next page who is:
- reasonably available, and
- willing and able to make the medical treatment decision.
- Your appointed medical treatment decision maker*[i]
- A guardian appointed by VCAT to make decisions about your medical treatment
- The first of the following people who is in a close and continuing relationship with you:
- your spouse or domestic partner
- your primary carer (not a paid service provider)
- your adult child
- your parent
- your adult sibling.
Where you have two or more relatives who are first on this list, it is the eldest.
If you do not have a medical treatment decision maker and are unable to make a decision about significant treatment, Victoria’s Public Advocate will make the decision on your behalf.
Choose
You can choose your medical treatment decision maker by appointing someone to the role. You can also appoint a back-up(s). To do this you must have decision-making capacity to make the appointment and must complete the form correctly, including by signing in front of the required witnesses.
When do they make decisions?
If you do not have decision-making capacity to make a medical treatment decision, your medical treatment decision maker may need to make it for you.
Your health practitioner will need to ask your medical treatment decision maker to make a decision unless:
- it is an emergency
- you have consented to, or refused, the treatment in an instructional directive in an advance care directive .
How do they make decisions?
They must make the decision they reasonably believe you would make if you had decision-making capacity. It is helpful if you let your medical treatment decision maker know what is important to you (your values), and any preferences you have.
Advance care directive
In Victoria, you can complete an advance care directive in which you can:
- record your values and preferences for your medical treatment (a values directive)
- make legally binding statements directed to your health practitioners, in which you consent to, or refuse, specific future medical treatment (an instructional directive).
You must have decision-making capacity to make the directive and must complete the form correctly, including by signing in front of the required witnesses (one must be a registered medical practitioner).
Values directive
If you choose to record your values and preferences in a values directive, this can help your medical treatment decision maker make the decision you would want. (If you do not have a medical treatment decision maker, it can help Victoria’s Public Advocate to do this).
Instructional directive
In an instructional directive, you can consent to or refuse future medical treatment.
These decisions are directed toward your health practitioners, not your medical treatment decision maker.
You should only complete an instructional directive if you know the type of medical treatment and the circumstances in which you want, or do not want, the treatment in the future, as it is a legally binding statement.
When is it used?
Your advance care directive will be used if, at sometime in the future, you do not have decision-making capacity to consent to or refuse medical treatment that is offered to you.
Enduring power of attorney
An enduring power of attorney is a legal document that lets you appoint a person, or people (your ‘attorneys’), to make certain decisions on your behalf.
These appointments are made under the Victorian Powers of Attorney Act 2014.
To be able to make one, you must have decision-making capacity to do so.
No one else can make an enduring power of attorney on your behalf.
It is an offence if anyone dishonestly pressures you to make one.
Financial and personal matters
You can choose to give your attorney(s) power to make decisions about your financial matters, personal matters, or both. Or you can give your attorney(s) power to make decisions about specific financial or personal matters.
An example of a financial matter is using your money to pay your expenses.
Examples of personal matters are where you live or services you need but does not include medical treatment decisions.
You can include conditions on the exercise of your attorneys’ power and can give instructions.
Who to appoint?
Choosing your attorney(s) is your most important decision.
If there is no one you trust to follow your wishes, you can appoint someone independent, such as a lawyer or a trustee company for financial matters. Or you may choose not to appoint anyone.
There are safeguards if you do not complete one. If, in the future, a decision needs to be made on your behalf, VCAT can appoint someone with authority to do this, such as a family member, the Public Advocate, or a trustee company.
When the role starts
You choose when your attorney(s)’ role starts. This could be immediately, or when you cease to have decision-making capacity for the matter. For example, you may choose for it to start immediately for financial matters if you want help to manage your finances while you are able to make these decisions. Where this is the case, speak to your attorney about how you want them to act.
Information for your attorney
Your attorney(s) should understand their role and duties before they agree to be your attorney. See the Department of Justice and Community Services website for information about this.
Reduce the risk of things going wrong
OPA’s guide, You Decide Who Decides, has tips to reduce the risk of things going wrong.
Support for decisions
In the future, you may sometimes want support to make some decisions.
Supported decision-making is about your right, as an adult, to:
- make your own decisions
- get the support you need to do so.
You have the right to make your own decisions while you have decision-making capacity to do so.
Examples of ways a person can have support to make decisions are:
- additional time to make the decision
- information explained in a way they can understand
- support of another person.
Support of another person
In the future, you may want another person to support you to make decisions. For example, to:
- help you to get information
- help explain information
- help you to communicate a decision
- help you to carry out a decision.
Appointing someone to support you to make decisions
In Victoria you can complete legal documents where you appoint a person to support you to make decisions.
You can give them authority to support you to make, communicate, and act on your decisions.
This can be helpful:
- because it means organisations must recognise the authority of the person who supports you to make decisions
- if the person supporting you needs to get information to help you to make a decision (for example, information from your doctor or your bank).
Types of appointments
You can appoint a:
- medical support person for support to make medical decisions
- supportive attorney for support to make other types of decisions, such as about financial or personal matters.
Other ways to have support
There may be other steps you can take to make it easier for you to manage your affairs that do not involve appointing someone. For example, someone who sits with you to help you with your bills.
Section 3: About the forms
Options for completing the forms
You may choose to get help from a lawyer or complete the forms yourself.
The help of a lawyer
An enduring power of attorney gives significant authority to another person so if you choose to complete one, you may find it helpful to talk about safeguards with a lawyer.
If you choose to go to a lawyer, look for one who understands this area of law. Use OPA’s pdf Questions for your lawyer (121 KB) checklist to prepare for your appointment
A lawyer can also help you complete the form(s) to reflect your wishes. If you go to a lawyer, there will be a cost.
If you do-it-yourself
If you choose to complete the form(s) yourself, you can use the forms developed by the Victorian Government.
Be aware, if you choose this option, make sure you understand the powers you are giving and how to complete the form(s). Read OPA’s pdf Before you sign (62 KB) checklist.
For links to the forms and more information, visit: publicadvocate.vic.gov.au
About decision-making capacity
To complete the legal documents described in this booklet, you need to have decision-making capacity to do so.
Adults are presumed to have decision-making capacity unless there is evidence to the contrary.
A person has decision-making capacity to make a decision if they are able to understand the information relevant to the decision and the effect of the decision, retain the information to the extent necessary, use or weigh the information, and can communicate their decision in some way.
Witnessing requirements
You will need to sign the form(s) in front of the required witnesses.
The table below lists the witnessing requirements for:
- appointment of a medical treatment decision maker
- an advance care directive
- an enduring power of attorney.
Your witnesses must certify that you appeared to:
- have decision-making capacity to make the legal document
- understand the consequences of what you are signing
- sign freely and voluntarily.
Visit the OPA website for the witnessing requirements for other documents.
Please note, remote witnessing is an option for powers of attorney and there are different witnessing requirements for this.
OPA recommends seeking legal advice if you are considering remote witnessing.
| Form | Number of witnesses required | Specific requirements for witnesses | People who cannot be witnesses |
|---|---|---|---|
|
Two adult witnesses |
One witness must be a registered medical practitioner. |
Neither witness can be someone who is an appointed medical treatment decision maker for you. |
|
|
Two adult witnesses |
One witness must be:
|
Neither witness can be:
|
|
|
Two adult witnesses |
One witness must be:
|
Neither witness can be a person who you are appointing as your medical treatment decision maker. |
[i] This includes a valid appointment you made before the Medical Treatment Planning and Decisions Act commenced on 12 March 2018 (for example, someone appointed under an old medical enduring power of attorney).
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- Documents (SQL): Strategic Directions 2023-2026 (General)
Vision
A fair and inclusive society that respects and values the human rights and dignity of all people.
Purpose
Promoting the independence and human rights of people with disability and protecting people with disability from violence, abuse, neglect, and exploitation.
Principles
Respect - We treat all people with dignity and respect
Integrity - We act honestly, transparently, fairly and with accountability to each other and to members of the community
Independence - As a statutory entity, we operate independently of government agencies and service providers
Inclusion - We strive to remove barriers to accessing our services and full participation in the community
Collaboration – We work collaboratively with our clients and stakeholders to improve outcomes for people with disability and their support systems.
What OPA does
OPA is an advocate, a safeguarder, an educator and system influencer that promotes and protect human rights by:
- advocating on behalf of people with disability who are at risk of violence, abuse, exploitation, or neglect
- advocating for policy, legislative and service reforms that promote and protect the human rights of people with disability
- providing a responsive and informative Advice Service and produce accessible information and community education on topics relevant to people with disability
- making significant medical decisions for people with no Medical Treatment Decision Maker
- conducting investigations at the request of VCAT and act as guardian when appointed by VCAT.
Strategic priority 1 - A culture of excellence – accessible, inclusive, collaborative, quality
- Orientate our services and systemic advocacy to optimise rights, access, independence, and wellbeing
- Improve our services and accessibility for First Nations people and develop strategies that support culturally respectful relationships
- Foster a culture of innovation, continuous improvement and accountability through quality assurance processes, collaboration, learnings from lived experience, feedback, and an analysis of data, trends, and themes
- Identify, build, and nurture strategic relationships that add value to our work in driving positive outcomes for people with disability.
Strategic Plan measure
- Lived experience, expertise and learnings inform practice and systemic advocacy.
- Enhanced cultural competency and safety improve outcomes for the people we work with
- High-quality practice is evidenced based, and outcome focussed.
- Collaboration and co-design principles guide our human rights approach and drive positive outcomes.
- A stakeholder engagement strategy identifies collaborative opportunities to promote human rights and build inclusive practices.
Strategic priority 2: Maximising our influence and impact - research, reform, advocacy
- Initiate research and projects and pursue policy and legislative reforms informed by OPA and the voice of lived experience that promote human rights and inclusive practices.
- Identify gaps in safeguarding systems and advocate for effective ways for OPA to undertake adult safeguarding in a changing environment.
- Advocate for the least restrictive options and support people with disability to have as much control over their lives as possible.
- Support people to make their own decisions and provide information on and advocate for decision-making support for that is funded and inclusive of cultural difference and human diversity.
Strategic Plan measure
- The people we work with and for have their voices heard in the design and delivery of services, and in system reforms.
- We influence government and policy makers by promoting policy and practice reforms that are culturally appropriate, safe, accessible, inclusive, and equitable.
- Our strong evidence base identifies service gaps and supports policy development and innovative strategies to build inclusion and address inequality.
- Our insights and reform proposals are valued by stakeholders and decision makers.
Strategic priority 3: Nurturing our people - support, development, promotion of wellbeing
- Foster an inclusive and accessible workplace that embraces, celebrates, and values the diversity of our staff, volunteers, and the people we work with.
- Build strong, empathetic leaders who lift the capability of their teams and foster a culture of integrity, high performance, continuous learning, and reflective practice.
- Identify skill development and support staff to take up opportunities to diversify skills and experience where possible.
Strategic Plan measure
- Our learning and development approach enables coordination of our professional development and learning against necessary capabilities.
- Embed effective systems and processes to ensure high levels of engagement, support, wellbeing, and resilience.
- Attract and retain dynamic high-performing and values-driven team members.
Strategic priority 4: A thriving organisation - sustainable, flexible, data and digitally capable.
- Develop a communication and engagement strategy that encourages cross program collaboration, driven by a whole of organisation mindset.
- Strengthen our data analytics capability to ensure robust performance reporting that improve client outcomes.
- Identify digital transformation opportunities to improve business system, streamline work processes, create efficiencies, and improve linkages across OPA including with volunteers.
- Ensure that OPA’s budget and resources reflect our role and functions.
- Build robust processes to understand and manage the risks inherent in our work.
Strategic Plan measure
- Flexible working arrangements build an agile, engaged, and resilient workforce equipped to excel.
- Investment in digital tools and data analytics support improved business practices, collaboration, and information sharing.
- New ideas and new ways of working are encouraged, embraced, and enabled by innovation and technology.
- Systems and processes facilitate efficiency and sustainability, and alignment with available resources.
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