ByLawyers News and Updates

Care planning – VIC

by

Two new By Lawyers advance care planning precedents provide for an advance care directive and an appointment of medical decision-maker to be signed at the direction of the principal.

The Medical Treatment Planning and Decisions Act 2016 (the Act) gives statutory recognition to advance care directives and provides a mechanism of medical treatment decision-making for people without decision-making capacity. The legislative framework has three components:

  • Advance care directive – allows for specific instruction on the treatment that a person consents to, or refuses, and a statement of their preferences and values.
  • Medical treatment decision maker – allows a medical treatment decision-maker to make decisions on behalf of a person who no longer has decision-making capacity.
  • Support person appointment – allows for the appointment of a support person to assist someone to make decisions for themselves, by collecting and interpreting information, or by assisting the person in communicating their decisions.

There is no requirement under the Act to make an advance care directive at the same time as an appointment of a medical treatment decision-maker, but if making an advance care directive before or at the same time as the appointment of a medical treatment decision maker, the appointee has to confirm they have read and understood it.

As with any instrument, the principal can execute an advance care directive or an appointment of a medical decision-maker by directing someone to sign on their behalf. Given the nature of these documents, execution by direction is not uncommon. Precedents for this purpose have been added to the matter plan, with witness certifications drafted to take into account the change in the process if the appointment is signed by someone else at the direction of the person making the appointment.

These new advance care planning precedents Advance care directive – Signing by direction and Appointment of medical treatment decision maker – Signing by direction can be found in folder D. Advance care directive, medical treatment decision maker and support person appointment on the Powers of Attorney and Advance Care Directives (VIC) matter plan.

Advance care directives – TAS

by

Advance care directives made under the laws applicable in some other Australian states will now be recognised in Tasmania.

Section 35ZN of the Guardianship and Administration Act 1995 provides that a validly made interstate advance care directive that has substantially the same effect as instruments under the Act can, by notice published in the Gazette, be recognised in Tasmanian.

The Gazette notice Advance Care Directives Corresponding Laws published on 22 May 2024 provides for the recognition in Tasmania of advance care directives made in the following states and territories:

  • Australian Capital Territory;
  • Queensland;
  • South Australia;
  • Victoria;
  • Western Australia; and
  • Northern Territory.

The By Lawyers Powers of Attorney, Enduring Guardianship, and Advance Care Planning (TAS) guide has been updated accordingly.

Advance care directives – TAS

by

A legal framework for advance care directives has been introduced in Tasmania. This brings Tasmania into line with the mainland states.

The Guardianship and Administration Amendment (Advance Care Directives) Act 2021 commenced on 21 November 2022. It amends the Guardianship and Administration Act 1995.

The purpose of the act and advance care directives for which it provides is to:

  • enable persons with decision-making ability to give directions about their future health care;
  • enable persons with decision-making ability to express their preferences and values in respect of their future health care, including by specifying outcomes or interventions they wish to avoid;
  • ensure that health care accords with a person’s directions, preferences and values; and
  • protect health practitioners and others giving effect to the directions, preferences and values of the person receiving care.

Amendments have been made to the By Lawyers Powers of attorney, enduring guardianship, and advance care planning (TAS) publication, including:

  • New commentary on advance care directives covering:
    • a summary of the legal framework and general principles;
    • the formal requirements, including witnessing and execution;
    • registration with the Tasmanian Civil and Administrative Tribunal; and
    • amendments and revocation;
  • Advance care directive statutory form added to the matter plan;
  • New Revocation of advance care directive and letters notifying relevant parties of the revocation;
  • Amended Retainer instructions to record the client’s instructions;
  • Amended Enclosure – Instructions for signing to add advance care directive signing requirements; and
  • Amended Appointment of enduring guardian to reflect the changes to s 32 of the Guardianship and Administration Act 1995 relating to the endorsement of guardians. This applies to all appointments made from 21 November 2022.

Wills, Powers of Attorney & Advance Care Directives SA

by

Wills, Powers of Attorney & Advance Care Directives

DECEMBER 
  • New Commentary on Challenging the validity of a will
    • Challenging a will questions its validity. Contesting a will questions the fairness of its provisions. The circumstances and processes when challenging a will are similar across all the states in legislation and in the common law principles that govern this interesting area of the law. This addition to commentary covers helpful tips for practitioners if they are faced with a client wishing to challenge the validity of a will.
OCTOBER
  • Costs Agreements – Disputes section improved, fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.
SEPTEMBER
  • Powers of Attorney and Advance Care Directives – Update  paragraph on South Australian Civil and Administrative Authority.
JUNE 
  • Added new precedent – Individual will creating multiple testamentary discretionary trusts.
APRIL
  • File Cover Sheets for all publications have been completely re-formatted for a better look.
MARCH
  • Powers of Attorney Commentary enriched to include a new section ‘What an attorney can’t do’. Commentary also enriched to include Instruments made in other states.
FEBRUARY 
  • Making life a little easier for practitioners – look out for Blank Deed, Agreement and Execution Clauses folder in the matter plan at the end of each Getting the Matter Underway.
  • The Advance Care Directives Kit produced by the South Australian government has been included in the guide. The kit is useful for practitioners who may wish to pass on additional information to their clients. The kit includes:
    • Advance Care Directive Form
    • Information Statement
    • Substitute Decision-Maker Guidelines
    • Information for Witnesses
    • Information for Interpreters

Connect with us