Medical Treatment Decision Maker Victoria: Roles, Limits, and What Happens After Death

When a person loses the ability to make decisions about their own medical care, someone else must step into that role. In Victoria, that person is the Medical Treatment Decision Maker — a formal legal role established under the Medical Treatment Planning and Decisions Act 2016.

Families are often confused about the scope of this role, how it interacts with a Power of Attorney, and — critically — what happens to this authority when the person dies. Getting this wrong at a vulnerable moment can cause serious friction with hospitals, funeral directors, and financial institutions.

What Is a Medical Treatment Decision Maker?

A Medical Treatment Decision Maker (MTDM) is a person legally authorized to consent to or refuse medical treatment on behalf of someone who has lost decision-making capacity.

In Victoria, decision-making capacity means the ability to:

• Understand facts relevant to the decision
• Understand the consequences of deciding or not deciding
• Communicate the decision in some way

When a person loses this capacity — through dementia, accident, illness, or any other cause — they can no longer legally consent to their own treatment. The MTDM steps in to make those decisions.

How Is a Medical Treatment Decision Maker Appointed?

There are two ways a person can hold the MTDM role in Victoria:

1. Appointed by the Person Themselves

A person with decision-making capacity can formally appoint someone they trust as their MTDM. This appointment is made through a specific document under the Medical Treatment Planning and Decisions Act 2016. The appointed MTDM can be a family member, close friend, or any other trusted person.

The appointed MTDM's authority is limited to medical treatment decisions. They cannot manage the person's financial affairs, enter into contracts on their behalf, or make decisions outside the health care context.

2. The Hierarchy of Default Decision Makers

If no MTDM has been formally appointed, Victoria applies a statutory hierarchy of default decision makers. The Act specifies this hierarchy in order:

1. Spouse or domestic partner (if the relationship is close and continuing)
2. Primary carer (the person who provides the most regular unpaid care)
3. Eldest adult child
4. Eldest parent
5. Eldest adult sibling

If none of these people are available or willing to act, the Office of the Public Advocate can be contacted to appoint a guardian to make medical decisions.

What Can a Medical Treatment Decision Maker Actually Do?

The MTDM's authority is broad within the domain of medical treatment. They can:

• Consent to or refuse medical procedures, including surgery and medication
• Consent to or refuse life-sustaining treatment, including ventilation, artificial nutrition, and CPR
• Make decisions about palliative care and pain management
• Give or refuse consent to participation in clinical trials
• Access the person's medical records for the purpose of making treatment decisions

The MTDM must make decisions based on the person's previously expressed preferences and values, or — where those aren't known — in the person's best interests.

Advance Care Directives and the MTDM

A person can create an Advance Care Directive specifying their wishes about medical treatment. When a valid Advance Care Directive exists, the MTDM must follow those instructions — they cannot override a directive that directly addresses the situation at hand.

This means the Advance Care Directive takes precedence over the MTDM's personal views or preferences. The MTDM's role becomes primarily one of advocating for the directive to be followed and filling in gaps where the directive doesn't specifically cover the decision being faced.

What the MTDM Cannot Do

This is where families often run into serious problems. The MTDM's authority has hard boundaries:

• The MTDM cannot manage the person's finances or property
• The MTDM cannot enter into contracts on the person's behalf
• The MTDM cannot authorize the release of financial assets
• The MTDM cannot make decisions about where the person lives (that falls to a guardian appointed under different legislation)

If a family member is both the MTDM and needs to manage finances, they need separate authority under the Powers of Attorney Act 2014 — specifically an Enduring Power of Attorney covering financial and personal matters.

The Critical Point: Authority Ends at Death

This is the most important thing families need to understand, and it is the source of enormous distress and confusion.

A Medical Treatment Decision Maker's authority ceases entirely the moment the principal dies.

There is no extension, no residual authority, no grace period. From the instant of death:

• The MTDM cannot authorize a funeral or cremation
• The MTDM cannot direct the funeral home on how to handle the body
• The MTDM cannot access the deceased's bank account to pay for a wake
• The MTDM cannot sign any documents on behalf of the deceased's estate

Similarly, an Enduring Power of Attorney — which covers financial and personal matters — also ceases entirely at death. Neither document has any legal force once the principal has died.

Hospitals, funeral directors, and financial institutions will all refuse to act on these documents post-death. This is not a bureaucratic error — it reflects what the law actually says.

What Takes Over After Death

Once a person dies, authority shifts entirely to the executor of the will (if one exists) or the likely administrator under common law (if there is no will).

The executor holds the legal right to:

• Control the body and decide on burial or cremation
• authorize funeral arrangements and sign the cremation application (Form 5)
• engage a funeral director and enter into a funeral service contract
• begin the process of administering the estate

If there is no will, the common law hierarchy of disposal rights determines who has authority. In Victoria, this runs: spouse or domestic partner, then adult children, then adoptive parents, then biological parents, then foster parents, then extended family, then the householder of the premises where the death occurred.

This is distinct from both the MTDM hierarchy and the Cemeteries and Crematoria Act "nearest surviving relative" hierarchy — which applies in specific cemetery-related contexts. The three hierarchies are separate and serve different purposes.

Practical Guidance for Families

If you are currently a Medical Treatment Decision Maker for someone in palliative or end-of-life care:

Make sure you know who the executor is. If the person has a will, locate it and confirm who the executor is. That person will need to be ready to act quickly when the time comes.

Do not assume your MTDM authority continues after death. Prepare for the transition by having a clear conversation with the executor (or the person most likely to be appointed administrator) about funeral preferences and what documentation will be needed.

Record the person's funeral wishes informally. Even though funeral wishes in a will are not legally binding in Victoria, they carry significant moral weight. The executor is strongly encouraged by courts to honor them.

Talk to the funeral director in advance if you know the death is approaching. Some funeral directors will take pre-arrangement instructions from the person or family while the person is still alive. This reduces the administrative burden in the immediate aftermath.

If You Need to Appoint a Medical Treatment Decision Maker

If you are planning ahead and want to appoint an MTDM, contact the Office of the Public Advocate Victoria (publicadvocate.vic.gov.au), which provides authoritative state-sanctioned guidance, standard forms, and explanatory information about the appointment process under the 2016 Act.

The appointment should be made while the person still has full decision-making capacity. Like a will, it cannot be made or altered once capacity is lost.

Understanding the boundary between pre-death and post-death authority is one of the most important things any Victorian family can prepare for. The Victoria Funeral Laws & Consumer Rights Guide walks through the complete legal transition — from the MTDM role through death, funeral arrangements, and estate administration — with step-by-step checklists and the common law decision tree for who has the right to make funeral decisions.

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