This page provides a plain-English overview of the legal processes involved in planning ahead, as well as links to local information. To get advice about your individual circumstances it is recommended that you consult with one of the agencies referred to below or a legal practitioner.
Apart from appointing a substitute decision maker, how else can I document my wishes?
- While having conversations about your wishes is crucial, it is strongly recommended that you also document your wishes in at least one of the ways outlined below. This will avoid situations such as the person(s) you have spoken with not quite remembering what you had said, the person not being available when decisions need to be made or the person not relaying your views if they were not really in agreement with them.
- As the first option below has a clear legal basis in Victorian legislation, it is recommended that you explore this option first.
Complete a Refusal of Treatment Certificate
- This is a written document that has a clear legal basis in legislation under the Medical Treatment Act 1988.
- The refusal of treatment can only be for a current medical condition.
- A Refusal of Treatment Certificate can be signed by a person on their own behalf if they have decision-making capacity. A Refusal of Treatment Certificate can also be completed on behalf of a person who has lost capacity by someone they had previously appointed under an Enduring Power of Attorney (Medical Treatment) or a guardian appointed by the Victorian Civil and Administrative Tribunal.
- The person can refuse medical treatment generally or specify particular treatments they refuse.
- It is illegal for medical practitioners to continue to treat a patient if they know there is a valid Refusal of Treatment Certificate in force.
- The Refusal of Treatment Certificate needs to be witnessed by two people, one of whom is a medical doctor.
- Certified copies should be given to your doctors, hospital or aged care facility where you may be living.
Make a written statement of your wishes other than in a Refusal of Treatment Certificate
- This may be a general statement of your values, wishes and preferences. It may also include directions about whether you would, or would not, consent to specific treatments in particular circumstances. It can refer to any time that you cannot speak for yourself – not just for current medical conditions (as is the case with a Refusal of Treatment Certificate).
- Documents for this purpose can be found from a range of programs – including the worksheets on this website and other programs listed on this site.
- This type of document is often referred to as a ‘common law directive’ because it potentially has a legal basis in common law (law decided by courts rather than legislation).
- A common law directive written by you needs to be used to guide any persons who have to make decisions on your behalf.
- There are different opinions about the degree to which common law directives are legally binding, and there have been no court findings in Victoria to give clear guidance on this.
- If you choose to make a common law directive, it is strongly recommended that you use one of the forms developed for this purpose and that you have the form witnessed. This will increase the likelihood that your directive will be accepted and acted on if the need arises.
Whatever type of documents you make, it is vital to give copies to people who may have to make decisions for you in the future and to make sure they understand how you want them to use these documents.
Links to local resources
For information, a factsheet and copies of the forms related to Refusal of Medical Treatment - for both a Competent Person and an Incompetent Person - go to the Office of the Public Guardian website, here
For information about advance care planning and access to a range of related resources, go to the Health Department website, here.