If you were seriously injured tomorrow, someone would still have to decide whether you have the operation, whether treatment starts, and whether it continues. Victorian law does not leave that question hanging. It either follows the instructions you wrote down while you could, or it hands the decision to a person chosen from a list in an Act of Parliament. An advance care directive lets you record what you would accept and refuse. Appointing a medical treatment decision maker lets you choose who speaks for you. This guide explains how both work, how they must be signed, and what happens when a family disagrees.
What is an advance care directive?
An advance care directive is a formal written document made under the Medical Treatment Planning and Decisions Act 2016 (Vic), the legislation governing medical treatment decision making in Victoria. You make it while you have decision making capacity, and it operates only if you later lose that capacity.
It helps to see where it sits among the other documents. A will speaks only after you die. An enduring power of attorney deals with money, property and personal matters while you are alive. An advance care directive deals with one thing: medical treatment. Only the directive tells a treating team what you want done when you cannot tell them yourself.
You can make one if you have decision making capacity, which broadly means being able to understand the relevant information, retain it, weigh it up and communicate your decision. An adult is presumed to have decision making capacity unless there is evidence to the contrary, and capacity is judged in relation to the particular decision at the particular time. A diagnosis such as dementia does not by itself end the ability to make a directive, though it does mean the question should be addressed properly and without delay.
What is the difference between an instructional directive and a values directive?
Victoria recognises two kinds of statement inside an advance care directive, and the difference matters enormously in practice.
An instructional directive is a direct instruction: you consent to, or refuse, specified medical treatment. It carries legal force in its own right, so that in all but limited circumstances a health practitioner acts on it as though you had given or refused consent yourself at the time. It does not depend on anyone else agreeing with it.
A values directive records your preferences, your values, and the outcomes you would or would not find acceptable. It does not settle a specific question by itself. It guides whoever has to decide for you, who must take it into account in working out what you would have wanted.
Most carefully drafted directives contain both. Instructional directives are powerful, but they only cover situations you were able to foresee and describe, and medicine is full of situations nobody anticipated. If you have made clear that independence matters more to you than length of life, or the reverse, the person deciding has something real to work from instead of a guess made in a hospital corridor.
Who is my medical treatment decision maker if I have not appointed one?
If you appoint nobody, Victorian law still produces a decision maker. The Act sets out an order of priority. Anyone you appointed yourself comes first. Next is a guardian appointed by the Victorian Civil and Administrative Tribunal with power to make medical treatment decisions. After that the role falls to the first of a listed group of people who is in a close and continuing relationship with you and is reasonably available, willing and able to act: your spouse or domestic partner, then your primary carer (not a paid service provider), then your adult child, your parent, and your adult sibling. Where two relatives share the first available position, the eldest takes it. If nobody on the list is available, the Public Advocate may be asked to consent to significant treatment.
That default works tolerably for a conventional family. It works badly in the situations we see most often:
- You separated but never divorced, so the law reaches a former partner first.
- You have a partner your family has never accepted, or a relationship a relative will dispute.
- Your adult children disagree, and the one the law selects is not the one who knows your views.
- The person the law selects lives overseas, is unwell, or cannot face the decision.
Appointing someone yourself removes all of that. You choose the person, and you tell them beforehand what you want, so they are not guessing under pressure. Where there is a genuine dispute, the matter can end up before VCAT. Our guide to guardianship and administration orders in Victoria explains what happens once the tribunal becomes involved.
How do you make one in Victoria?
Both are formal legal documents and the signing requirements are strict. An advance care directive must be in writing and signed by you in front of two adult witnesses, and one of them must be a registered medical practitioner. Neither witness can be a person you have appointed as your medical treatment decision maker, and the witnesses certify matters including that you appeared to have decision making capacity, that you understood what you were signing, and that you signed freely and voluntarily.
Appointing a medical treatment decision maker is a separate appointment made on its own form. It also needs two witnesses, but the requirement is slightly wider: one must be a registered medical practitioner or a person authorised to witness affidavits, such as a lawyer. The person you appoint must sign to accept the role, which is a useful prompt to have the conversation with them rather than leaving them to discover it in a crisis.
Get the formalities wrong and the document may fail at the only moment it matters. That is the main reason to have these prepared alongside your will and your enduring power of attorney rather than downloaded and signed at the kitchen table. Two practical steps matter as much as the signing:
- Hand out copies. A directive locked in a drawer helps nobody. Your medical treatment decision maker, your GP and your close family should each have one, and it should go with you to any hospital admission.
- Review it. A directive written at 40 may not reflect what you think at 70. You can change or revoke it while you have capacity.
Want your medical wishes recorded properly, and the right person appointed to speak for you? Call (03) 9125 8355 or send an enquiry.
Can your family override what you have written?
Generally no, and that is the point of the document. An instructional directive operates as your own consent or refusal, so a relative who disagrees does not acquire authority to reverse it. Where a decision falls to your medical treatment decision maker, Victorian law points them towards the decision you would have made, rather than what they would prefer or consider best for you. Your values directive, and anything you have told them, is the material they work from.
There are limits. In a genuine emergency, treatment can be given without consent where a practitioner believes it is urgently necessary, for example to save life or prevent serious damage to health. Even then, a practitioner must not give treatment they know you refused in a valid instructional directive, which is precisely why the document has to be findable rather than filed away. Where real doubt exists, VCAT can decide whether a directive is valid, amend or revoke one, review an appointment, and give advice or directions to a decision maker or a health practitioner. The Office of the Public Advocate is also a source of information for Victorians facing these decisions.
Does an advance care directive cover my finances?
No. If you lose capacity, somebody needs authority to pay your bills, operate your accounts and deal with your property, and that comes from an enduring power of attorney made under the Powers of Attorney Act 2014 (Vic), not from a health document. Our guide to enduring powers of attorney in Victoria explains how those are made and what they cover.
A directive also says nothing about what happens after you die. That is the job of your will, and some assets, superannuation in particular, may pass outside your will entirely. One further point for people who travel: advance care planning laws differ between the Australian states and territories, and a directive made under one jurisdiction will not necessarily have the same effect in another.
When should you put one in place?
Now, and well before you think you need to. A serious accident or sudden illness can remove capacity at any age, without warning, which is precisely why the document has to exist beforehand. Practical trigger points are any diagnosis of a progressive condition, any major elective surgery, and the moment you sit down to make or update your will.
How we help
Spencer Alexander Lawyers prepares advance care directives and medical treatment decision maker appointments for clients across Melbourne and Victoria, normally as part of a complete estate plan alongside a will and an enduring power of attorney. We work through what you actually want in plain language, draft instructions that will still make sense to a treating team years later, make sure they are executed correctly, and brief the person you appoint on the role. Learn more about our wills and estates practice.
Common questions
Can I change or cancel an advance care directive? Yes, at any time while you have decision making capacity. It is a formal step rather than an informal one: a revocation form should be completed and witnessed, or a fresh directive made, and the most recent valid document is the one that counts. Review it periodically, and make sure the current version is the one your doctor, your hospital and your medical treatment decision maker actually hold.
Do I need a lawyer to make an advance care directive? There is no requirement to use one, but the formalities are strict and a defective document fails at the only moment it matters. Preparing it with your will and enduring power of attorney also keeps the three documents consistent.
A will, an enduring power of attorney and an advance care directive belong together. One conversation puts all three in place. Call (03) 9125 8355 or send an enquiry.
This guide reflects the law applying in Victoria as at August 2026. It is general information only, not legal advice, and does not take your circumstances into account.