Medical Power of Attorney Makeover

As of 12 March 2018, the Victorian Government has brought into effect a Medical Power of Attorney makeover, under the Medical Treatment Planning and Decisions Act 2016 (Vic). The key purpose of this Act is to provide for the making of medical treatment decisions on behalf of people who do not have decision-making capacity, through the provision of two key documents:

A Legally Binding Advance Care Directive
An Appointment of Medical Treatment Decision Maker

These documents have replaced the previous Enduring Medical Power of Attorney, which only provided for the appointment of an attorney and alternate attorney. See below for more information on how these two documents differ to the previous Enduring Medical Power of Attorney.

Advance Care Directives

Advance Care Directives set out your binding instructions, or alternatively your general preferences and values, in relation to your medical treatment in the event that you are incapable or otherwise unable to make your own decisions for that particular medical treatment or procedure in the future. Advance Care Directives can include directions in relation to the following (among many others):

Operations or procedures, both invasive or non-invasive
Treatment for mental illness
Prescription or non-prescription pharmaceuticals
Life support
Dental treatment
Palliative care.

Advance Care Directives may contain either an instructional directive, a values directive, or both. An instructional directive is an express statement which takes effect as if you have consented to or refused consent to a particular medical treatment yourself. A values directive is a statement of your preferences and values as a basis on which you would like any medical treatment decision to be made on your behalf.

Appointment of Medical Treatment Decision Maker

In circumstances where there is no instructional directive in relation to a particular medical treatment, the decision will be referred to your Medical Treatment Decision Maker, who is appointed in this separate document. You may appoint more than one person as your Medical Treatment Decision Maker. The person making the decision will be the first person listed in the Appointment who is reasonably available and willing to act at the particular time. The person or people entrusted with this appointment have very significant responsibilities including:

Authorising an operation
Authorising the switching off of a life support machine
Authorising medication (in consultation with a medical professional).

Your Medical Treatment Decision Maker must make the decision that they believe is the decision that you would have made if you had decision-making capacity. In doing so, they will have regard to:

Your values directive (if any) in your Advance Care Directive
Any preferences that you expressed during your life or could be inferred from the way you lived your life
The likely effects and consequences of the particular medical treatment

Your Medical Treatment Decision Maker can also refuse medical treatments. Any refusal of treatment must take into consideration the points listed above, as well as any available medical advice.

Is my prior Medical Power of Attorney still valid?

Yes. The Medical Treatment Planning and Decisions Act 2016 (Vic) provides that anybody appointed prior to 12 March 2018 as an Attorney for medical treatment matters is deemed to transition into the role of Medical Treatment Decision Maker, avoiding the need for new appointments to be made.

For more information refer to our page on Powers of Attorney or The Australian Government's page on Powers of Attorney, which includes information for different States.

Medical Power of Attorney: How can Sharrock Pitman Legal help?

At Sharrock Pitman Legal, we offer a range of services in Wills and Estate Planning. If you have any further queries regarding these changes to the Medical Powers of Attorney, or require assistance with Wills or Estate Planning, please feel free to contact our Accredited Specialist Wills and Estates Law team on 1300 205 506, or alternatively fill in the form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

For further information contact

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate. For further information, contact Mitchell on his direct line (03) 8561 3318.

Taxes and deceased estates

Can I refuse to act as an Executor?

How does separation affect a Will?

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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