Refusal of Treatment Certificate Agent or Guardian of Incompetent Person

The requirements for refusing medical treatment depend on whether or not the patient has the ability to make their own decision and is able to consent to medical treatment.

A person appointed as a medical agent under an enduring power of attorney (medical treatment) or a guardian appointed by the Victorian Civil and Administrative Tribunal (VCAT) with medical treatment decision-making powers can refuse medical treatment on behalf of a patient who cannot consent.

To do this, the medical agent or guardian must sign and have witnessed a ‘Refusal of Treatment Certificate: Agent or Guardian of Incompetent Person’ form (right menu). They specify the type of treatment they wish to refuse. No doctor can provide the treatment that has been specifically refused in the certificate.

To sign, a medical agent or guardian must:

  • have been given sufficient information about the patient’s condition
  • understand this information
  • understand what they are doing by signing the certificate
  • make the decision voluntarily (advice can be given, but they must not be coerced)
  • hold the view that either the medical treatment would cause the patient unreasonable distress, or there are reasonable grounds for believing the patient would, if competent and after serious consideration, have considered the treatment unwarranted.

Safeguards

Anyone who has a genuine interest in the patient’s welfare can ask VCAT to consider the actions of the medical agent or guardian. VCAT can suspend or cancel an enduring power of attorney (medical treatment) if the medical agent is not acting in the patient’s best interests or cancel a guardianship order if a guardian is not acting in the patient’s best interests.

If this happens, then any certificate signed by the medical agent or guardian is also cancelled. VCAT sends a written notice confirming this to the hospital or nursing home.

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Refusal of Treatment Certificate: Competent Person

The requirements for refusing medical treatment depend on whether or not the patient has the ability to make their own decision and is able to consent to medical treatment.

A patient 18 years of age or older who has the capacity to understand the decision they are making can refuse medical treatment for a current medical condition by signing a Refusal of Treatment Certificate: Competent Person form . This cannot be used to refuse palliative care such as pain relief, and food and water while the patient is still able to eat and drink.

For it to operate, a doctor and another person must sign the Refusal of Treatment Certificate: Competent Person form to verify that the patient is refusing treatment. The certificate specifies the type of treatment being refused and a doctor can only provide treatment consistent with the terms of the certificate.

It is illegal for medical practitioners to treat a patient if they know there is a valid certificate in force.

Most certificates will be signed in hospitals or other facilities, but they can also be signed at home.

The doctor who witnesses the certificate, or the manager of the hospital or facility, must give a copy of the certificate to VCAT within seven days.

If the patient is competent, the certificate can easily be cancelled at any time by the patient clearly expressing or indicating that they want to cancel it. This can be in writing or by other forms of communication.

Requirements

The patient making the certificate must:

  • have been given sufficient information about their condition
  • understand this information
  • understand what they are doing by refusing treatment
  • make the decision voluntarily (advice can be given, but they must not be coerced).

The doctor and the other person must be satisfied that these requirements have been met.

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Advance Care Directives

If you have already completed an Enduring Power of Guardianship, a Medical Power of Attorney or an Anticipatory Direction, these are still legally effective, unless you complete the new Advance Care Directive Form.

What is an Advance Care Directive?

An Advance Care Directive is a legal form that allows people over the age of 18 years to:

  • write down their wishes, preferences and instructions for future health care, end of life, living arrangements and personal matters and/or
  • appoint one or more Substitute Decision-Makers to make these decisions on their behalf when they are unable to do so themselves.

It cannot be used to make financial decisions.

If you have written a refusal of health care, it must be followed if relevant to the circumstances at the time. All other information written in your Advance Care Directive is advisory and should be used as a guide to decision-making by your Substitute Decision-Maker(s), your health practitioners or anyone else making decisions on your behalf.

It is your choice whether or not to write an Advance Care Directive. No one can force you to have one or to write things you do not want. These are offences under the law.

You can change your Advance Care Directive at any time while you are still able by completing a new Advance Care Directive Form.

Your new Advance Care Directive Form will replace all other documents you may have completed previously, for example an Enduring Power of Guardianship, Medical Power of Attorney or Anticipatory Direction.

When will it be used?

Your Advance Care Directive only takes effect (can only be used) if you are unable to make your own decisions, whether temporarily or permanently.
If you cannot:

  • understand information about the decision
  • understand and appreciate the risks and benefits of the choices
  • remember the information for a short time; and
  • tell someone what the decision is and why you have made the decision.

It means you are unable to make the decision (sometimes called impaired decision-making capacity) and someone else will need to make the decision for you.

Who will make decisions for you when you cannot?

It is your choice whether or not you appoint one or more Substitute Decision-Makers. If you have appointed one or more Substitute Decision-Makers, they will be legally able to make decisions for you about your health care, living arrangements and other personal matters when you are unable to. You can specify the types of decisions you want them to make in the Conditions of Appointment Part 2b of your Advance Care Directive Form.

If you do not appoint any Substitute Decision-Makers, others close to you may be asked to make decisions for you if you are unable to (Person Responsible). They must follow any relevant wishes or instructions you have written in your Advance Care Directive.

Anyone making a decision for you will need to make a decision they think you would have made in the same circumstances.

Refusals of health care

You may have written in your Advance Care Directive that you do not want certain types of health care, also known as a refusal of health care. It is important to make sure you have written down when or under what circumstances any refusals of health care apply.

If you have refused specific health care in your Advance Care Directive, your Substitute Decision-Maker(s) (Person Responsible) and your health practitioner must follow that refusal if it is relevant to the current circumstances.

This means that your health practitioner will not be able to give health care treatment you have refused.

If you refuse health care but do not write down when the refusal applies, it will apply at all times.

A health practitioner can only override a refusal of health care if there is evidence to suggest you have changed your mind but did not update your Advance Care Directive, or the health practitioner believes you didn’t mean the refusal of health care to apply in the current circumstance.

If this happens they will need consent from your Substitute Decision-Makers, if you have any, or a Person Responsible, to provide any health care.
You cannot refuse compulsory mental health treatment as listed in a community or involuntary treatment order if you have one.

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The Mediators Parenting Plan

The following document provides some points to help you in putting together a comprehensive parenting plan. Write down your own goals, preferences, etc.; don’t worry about what your ex partner may want, just write down what you would like to see happen.

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Contravention application documents & letters

This bundle includes the first letter to the solicitor on the contravention matter, the letter from the solicitor to the other parent, and a sample affidavit.

The documentation provided are samples that can be used as a templates in matters involving a contravention of existing Court orders.

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My Last Will

This a free and good quality Will template provided by LegalZebra, a team who provide a service in the delivery of online legal templates.

They claim that their online legal templates are inspired by the beauty and simplicity of zebras. They provide an easy and affordable way for every-day Australians to put their legals in black and white.

Please note however that some pages in this sample Will are missing, but otherwise it is a well constructed document.

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Co-Habitation Agreement

This contract is referred to as a Cohabitation or more accurately a Binding Financial Agreement (BFA).

Cohabitation Agreements are made between people who are living together or intending to live together but not intending to get married.

Couples intending to get married should define their relationship with a Prenuptial Agreement under section 90B of the family law act.

Your Cohabitation agreement becomes a legal expression of your intent as de facto partners – you can define how you intend to divide your assets and maintain any children you may have.

 

 

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How to Draft an Affidavit

An affidavit is defined as a statement in writing that sets out the facts of a case. It sets out the evidence in a matter. It must be either sworn or affirmed, usually before a Justice of the Peace, Commissioner of Oaths or lawyer, as a true record. This swearing or affirming process is referred to as attesting. Affirming means that you state that you will tell the truth and usually that you are aware of the penalties for making a wilfully false statement.

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Sample Federal Magistrates Court Equal Time Parenting Plan

A sample parenting plan intended to be submitted to the (then) Federal Magistrates Court, which includes shared parenting on an equal time basis for 2 children.

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Counselling Solutions Parenting Plan

This parenting plan was quickly changed from 3 days on/off to 7 days on/off which is a MUCH better situation for the kids.
Also this plan has a number of unhelpful point scoring items in it from one of the parents that clearly is not in the children’s best interests.

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