Best Advance Directive Tool for Same-Sex and De Facto Couples in Victoria

If you are in a de facto or same-sex relationship in Victoria and want your partner to make medical decisions for you in a crisis, the most important thing you can do is appoint them as your Medical Treatment Decision Maker under the Medical Treatment Planning and Decisions Act 2016. Not because the law excludes you — it does not. But because proving a "close and continuing relationship" to an unfamiliar ICU team at 2 a.m. is uncertain at best, and a formal MTDM appointment removes that uncertainty entirely.

The best tool for this is one that handles both the MTDM appointment and the advance care directive in a single workflow, with clinical phrasing that hospital teams can follow without interpretation. The Victoria Advance Directive & Living Will Kit does exactly this — MTDM appointment form with an interview script, treatment-specific instructional directive templates, GP witnessing protocol, and document distribution checklist. One afternoon, both documents, legally binding.

Why the Statutory Hierarchy Is Not Enough

Victoria's 2016 Act creates a hierarchy of people who can make medical treatment decisions when a patient lacks capacity and has not appointed an MTDM:

1. The person appointed by VCAT as guardian (if applicable)
2. The patient's spouse or domestic partner (including de facto and same-sex partners)
3. The patient's primary unpaid carer (if not a paid professional)
4. The patient's oldest adult child
5. The patient's oldest parent
6. The patient's oldest adult sibling

De facto and same-sex partners sit at position two — above children, parents, and siblings. On paper, this is strong protection. In practice, it depends on the treating team recognising and accepting the relationship.

The problem emerges in three scenarios:

Scenario 1: The partner is not present. If your partner is admitted to an emergency department and you are not there when treatment decisions must be made, the clinical team works down the hierarchy. If a parent or sibling is present and asserting authority, the team may defer to them — especially if the relationship between you and the patient is not documented anywhere in the medical record.

Scenario 2: The relationship is disputed. A parent who disapproves of the relationship, an estranged adult child, or a former spouse can challenge whether the de facto relationship meets the statutory definition. The clinical team is not equipped to adjudicate family disputes in an emergency — they need clarity, and a formal MTDM appointment provides it in a way that a verbal claim of partnership does not.

Scenario 3: The partner cannot prove the relationship. "Close and continuing" is defined by evidence — cohabitation, shared finances, social recognition, duration. In a crisis, producing that evidence is impractical. A formal MTDM appointment replaces the evidentiary requirement with a signed statutory document.

What a Formal MTDM Appointment Does

An MTDM appointment under the 2016 Act is a written, witnessed document that names a specific person as your medical treatment decision maker. Once appointed:

• The MTDM has statutory authority that overrides the default hierarchy — no one can challenge their standing by disputing the relationship
• The treating team has documentary certainty — the MTDM appointment is in the medical record, and there is no ambiguity about who makes decisions
• The MTDM can enforce your advance care directive — including treatment refusals that family members may emotionally oppose
• The appointment survives even if the relationship later ends (until formally revoked)

For de facto and same-sex couples, this is not a bureaucratic formality. It is the difference between your partner making decisions under clear legal authority and your partner trying to prove their relationship to a stranger in a hospital corridor while a parent or sibling demands to be heard.

What to Look for in an Advance Directive Tool

Not every planning resource handles the de facto/same-sex scenario well. Here is what matters:

The EPOA Distinction

An Enduring Power of Attorney under the Powers of Attorney Act 2014 covers financial and personal matters — not medical treatment. The term "Medical Power of Attorney" has been legally obsolete in Victoria since 12 March 2018. This distinction catches many couples off guard: they complete an EPOA naming their partner as attorney and assume medical decisions are covered. They are not.

For comprehensive protection, couples need three documents:

1. Advance Care Directive — your documented treatment preferences (binding on clinicians)
2. MTDM appointment — your partner's authority to make medical decisions not covered by the ACD
3. Enduring Power of Attorney — your partner's authority over financial and personal (non-medical) matters

The ACD and MTDM appointment can share the same two witnesses if one is a registered medical practitioner. An EPOA cannot — one EPOA witness must be a Justice of the Peace, a bail justice, or a lawyer, so a GP-plus-friend pairing that works for the ACD will not validly execute the EPOA. Completing all three in the same sitting still ensures consistency and avoids the situation where financial and medical authorities conflict.

Completing Both Documents in One Session

The practical workflow for couples:

1. Both partners complete the process. Each partner needs their own ACD, MTDM appointment, and EPOA. Do both at the same time — the conversation about treatment preferences naturally flows in both directions.

2. Draft treatment preferences before the GP appointment. Use clinical phrasing templates to document specific treatment decisions. Arriving at the GP's office with completed directives reduces the appointment from an hour-long drafting session to a 20-minute witnessing and capacity certification.

3. Prepare the MTDM interview. Confirm your partner understands: what treatments you want refused, under what circumstances they should consent to treatment, the boundaries of their authority, and how to respond if family members challenge their decisions.

4. Book the GP witnessing appointment. Call ahead, frame it as a clinical conversation, bring all documents pre-drafted, and bring your second witness (any adult who is not the appointed MTDM — so neither partner can witness the other's MTDM appointment).

5. Distribute and upload. Give copies to each partner's GP, upload to My Health Record, and store originals in an accessible location. If either partner enters residential aged care, provide a copy to the facility's clinical team.

Who This Is For

• De facto couples (heterosexual, same-sex, or gender-diverse) who want their partner's medical decision-making authority formalised
• Couples where one or both partners have family members who may dispute the relationship or challenge treatment decisions
• Partners with no legal marriage who want the same documentary certainty that married couples receive by default under the hierarchy
• Couples where one partner has a chronic or progressive condition and formal medical authority is urgently needed
• LGBTQ+ couples whose families of origin may not recognise or respect the partnership

Who This Is NOT For

• Married couples whose relationship is uncontested — the statutory hierarchy already places a spouse at position two with documentary certainty (marriage certificate). An MTDM appointment still adds value but is less urgent
• Couples with complex estates requiring solicitor-coordinated trusts and succession planning
• Situations involving domestic violence or coercive control — contact 1800RESPECT (1800 737 732) or Seniors Rights Victoria (1300 368 821)

Tradeoffs

Formal MTDM appointment advantages: eliminates relationship-proof burden, overrides the default hierarchy, provides documentary certainty to treating teams, enforceable authority against challenging family members.

Limitations: requires a GP witnessing appointment ($100–$300), must be completed while both partners have decision-making capacity, does not replace the need for an EPOA for financial matters.

Frequently Asked Questions

Does my de facto partner automatically have medical decision-making authority in Victoria?

Technically yes — de facto partners sit at position two in the statutory hierarchy, above children, parents, and siblings. But "automatic" authority requires the treating team to accept the relationship without documentary proof. In an emergency, a formal MTDM appointment removes any ambiguity.

Can my same-sex partner be my MTDM?

Yes. The 2016 Act does not restrict MTDM appointments by gender or relationship type. Any person aged 18 or older who has decision-making capacity can be appointed.

Do we both need separate directives?

Yes. Each person needs their own ACD and MTDM appointment — you cannot share a single document. However, you can complete both sets of documents in the same session with the same witnesses, which is the most efficient approach.

What happens if my partner and my parents disagree about my treatment?

If you have a formal MTDM appointment naming your partner, your partner's authority overrides your parents' position in the hierarchy. Without the appointment, both your partner and your parents can claim authority — and the treating team must determine who qualifies, potentially involving VCAT if the dispute cannot be resolved.

Can I revoke the MTDM appointment if our relationship ends?

Yes. You can revoke an MTDM appointment at any time while you have decision-making capacity. The revocation should be communicated in writing to the former appointee, your GP, and any facility that holds a copy of the original appointment.

The Victoria Advance Directive & Living Will Kit handles both the ACD and the MTDM appointment in a single structured workflow — clinical phrasing templates, GP witnessing protocol, interview script, and document distribution. For de facto and same-sex couples, the formal MTDM appointment is the single most valuable step you can take to protect each other's medical authority.

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