Medical enduring power of attorney

The Guardianship List at VCAT hears and decides applications related to medical enduring powers of attorney.

A medical enduring power of attorney is a legal document where one person gives another person the power to make decisions about medical treatment on their behalf. The person who has been given the power to make medical decisions on behalf of someone else is called the medical agent.

Sometimes people refer to medical enduring power of attorney as enduring power of attorney (medical treatment). They are the same thing.

Health service providers

A doctor or health service must acknowledge a medical agent’s authority. If a doctor or health service asks someone other than the appointed medical agent to make decisions for a patient they may not have what the law calls 'legitimate consent'. If the doctor or health service proceeds with the treatment without legitimate consent they may be charged with medical trespass.

The Office of the Public Advocate provides advice if you find yourself in this type of situation.

Before you apply

A doctor or health service is required to make reasonable enquiries to establish if their patient has a medical enduring power of attorney. There is no register of people who have made an appointment of an enduring power of attorney. Refer to the Office of the Public Advocate for more information about consent to medical and dental treatment for patients who have lost decision making capacity.

You can apply to VCAT if you are the donor, the agent or alternate agent under the enduring power of attorney, or someone who has a special interest in the affairs of the donor. Complete the application form, lodge it with VCAT and send a copy of your application to other people you have named in your application. There is no application fee.

Need help with your application?

VCAT cannot give you legal advice. Seek legal help if you are unsure about your legal options. The following services may be able to help you:

Do I need a lawyer or professional representative?

You do not need to have legal or other professional representation to appear at VCAT. If you wish to be represented by a lawyer or a professional advocate, usually you must ask for VCAT's permission.

Find free or low-cost legal services that may be able to assist you.

Decide who pays the costs of representation

If you are an agent who is a party to a power of attorney hearing at VCAT you may want to be represented by a lawyer. You must decide whether this is a cost you should pay personally or whether it is a reasonable expense that can be paid from the finances of the person who appointed you.

Access and privacy

VCAT hearings and files are usually public.

VCAT has limited authority to restrict who can access cases and files but, in certain circumstances, you can apply for confidentiality. For more about applying for confidentiality.

Cases VCAT can hear

If you have a special interest in the affairs of someone and you are concerned about the actions of their medical agent, you can apply to VCAT to consider and decide about:

  • whether proposed medical or dental treatment is in the best interests of the patient
  • whether to suspend or revoke (cancel) a medical enduring power of attorney, for example if VCAT determined that a decision to refuse medical treatment is not in the best interests of the patient. In such cases, VCAT may also consider an application for the appointment of a guardian to make the decision about the medical treatment.
  • When you apply, we check your paperwork to see if you have provided everything you need to and have followed the proper process. We will consider the urgency of the matter and then schedule a hearing. We may contact you for more information. If you need an urgent decision from us, you may be able to apply for an urgent hearing. Learn about what happens when VCAT opens a case.

  • If we need you to attend a compulsory conference, we advise you. A compulsory conference is a confidential process. We allocate a member to guide you and other parties through a less formal process to explore whether the issues in dispute can be resolved without having to go to a contested hearing. Read more about resolving a case by agreement.

  • If you prepare a written statement of your claim, file it with VCAT and give a copy of it to other parties. If you don’t provide the material in time this might cause a delay. The other parties need time to respond to your claim. Prepare early so you can present the best possible case. Make sure give others enough time to assist you to prepare and appear as witnesses at a hearing. For information to help you prepare for the hearing, see how to prepare for your final hearing. For information about our accessibility services and other support services, please see customer support at VCAT.

  • It is the responsibility of the applicant and other interested parties to attend the hearing. The hearing gives all parties a chance to give and hear evidence, ask questions, call witnesses and provide supporting documents. Learn about what happens on final hearing day.

  • VCAT aims to make a decision in disputes as early as possible. If the member does not give a decision at the final hearing, we try to provide it within six weeks of the hearing. Learn about what to expect after your hearing.