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Are Advance Care Directives Relevant To You?

If the unexpected occurs, it's important your chosen family member has legal capacity to guide medical treatment. Planning ahead can help inform health choices going forward, as well as give you peace of mind for the present. With this in mind, we explore what advance care directives are, and how they can help you and your loved ones decision making capacity.

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What is an advance care directive?

You can think of an advance care directive as your own guide for your health care preferences and medical treatment. If you suddenly suffer from a life-limiting illness or accident, an advance care directive ensures you have medical treatment decision makers to communicate your wishes.

Why is it important to have a medical treatment decision maker?

Despite our best-laid plans, we never know what's around the corner. That said, many of us probably have a strong idea about what we'd like to happen in our final stages, if we become significantly injured or struck by a terminal illness.

In the event that you can't tell your family what you want, an advance care directive is your way of letting them know. It can act as a map to guide them through difficult decisions, particularly when they might hold conflicting opinions about what should happen.

If you lose capacity to guide your medical process or health decisions, this legal document serves as a key roadmap to ensure your best interests are used to inform the right decisions. It ensures treatment is aligned with your wishes, and that you have a public advocate to ac in your interest with your life wishes in mind.

What happens if I don't have an advanced care directive?

If you're in the position where you can't make medical decisions on your own behalf and you don't have an advance care directive, your doctors and carers will generally ask your close family members to make the relevant treatment decisions.

While this can be a suitable option due to the circumstances, your family might have conflicting views that don't align with your values or preferred outcomes.

How does an advanced care directive work?

As it is considered a legal document, advance directives require you to be over the age of 18 to enact. These legal documents come into effect if you no longer have the capacity to make day-to-day decisions for things like:

  • legal concerns

  • health care and medical treatment

  • finances

  • personal matters

It's best practice to discuss your situation and advance care directive with your doctor so you're both aware of what could happen and what should inform your plan.

Regardless of what you choose, it's important to remember:

  • you won't lose the ability to control your own decisions by having a directive

  • you can change your directive at any time (but make sure everyone who's received your original directive gets the new one)

  • your family members and health professionals need to follow your valid directive if you're unable to communicate your end-of-life wishes

While it's not necessary to seek advice from a lawyer for your directive to be valid, it is recommended that you get legal advice to understand the requirements of an advance care directive in your state or territory and discuss how a directive can form part of your overall estate plan. This is important to do ahead of time, as leaving it to late risks life limiting illness hitting before your'e decision maker has been appointed.

What does an advance care directive include?

Your advance directive is relatively simple in what information it should have. It can include:

  • details of your personal values or religious beliefs

  • your preferred health outcomes

  • types of medical treatment and care you'd like or wouldn't like if you have a life-threatening medical condition

When it comes to deciding what you should write in your advance care directive, your preferences might detail whether you'd want to:

  • be kept alive on a ventilator or revived

  • die at home in your own bed, in a hospital or aged care facility

  • donate organs and tissues (you'll still need to register with the Australian Organ Register)

  • have invasive or costly treatments with uncertain outcomes

There are forms available for each state and territory to help you start this process. While it doesn't need to be officially registered, it is recommended that you upload the directive to your My Health Record for safekeeping and easy access for your doctors.

What's the difference between an advanced health directive and an enduring guardianship?

Although they can complement each other, it's important to know that an advance care directive is different to an enduring guardianship. Both are important in the event you're unable to make your own medical decisions.

Whilst an advance care directive sets out your wishes and preferences for medical treatment, an enduring guardianship legally appoints someone the power to make these medical decisions on your behalf.

Each state and territory has their own process to follow:

In South Australian and the Northern Territory, you can appoint someone close to you as your substitute decision-maker in your advance care directive.

In New South Wales and Tasmania, you need to complete a separate form to nominate an enduring guardian. Similarly, the ACT and Queensland have a separate form to appoint an enduring power of attorney, while Western Australia refers to the separate form as an enduring power of guardianship.

Whoever you choose will help you when you're no longer able to make decisions for yourself, or when you are in the final stage of life. Your advance care directive can be used as a legal authority and guide to help them to act on your behalf; ensuring your treatment is aligned with your personal and treatment wishes.

Do I need to have an advance care directive signed in Australia?

Medical treatment decisions can have irreversible consequences. For this reason, for a directive to be recognised as a legally binding document, every state and territory has their own terms and requirements for who needs to sign it, as well as varying names for the document.

We've compiled a few important points for each state and territory below:

An advance care directive in New South Wales:

  • doesn't need to be witnessed or signed to be legally enforceable

An advance care directive in Victoria needs to be:

  • signed by two independent adults (including one who is a general practitioner)

An advance health directive in Queensland needs:

  • a doctor to complete Section 5 of the document

  • a witness to complete Section 9 of the document

  • the witness to be at least 21 years old (who is a justice of the peace, lawyer, notary public, or commissioner for declarations)

  • the witness to be completely independent from you (who isn't a relative, personal attorney, beneficiary in your Will, or currently working as your paid carer or health professional)

An advance personal plan in Northern Territory needs to be:

  • signed by an authorised witness (who is a justice of the peace, commissioner for oaths, police officer, legal practitioner, health professional, accountant, social worker, principal, or chief executive officer of local government authorities)

An advance care plan in the ACT needs to be:

  • signed by two witnesses in attendance with each other and yourself

An advance care directive in South Australia needs to be:

  • signed by one authorised independent witness

An advance health directive in Western Australia needs to:

  • be signed by an authorised witness (who is a justice of the peace, lawyer, or health professional)

  • include a statement that verifies you've received legal or medical advice before writing the document

An advance care directive in Tasmania needs to be:

  • signed by a witness over 18 years old (who is unrelated to you and not a beneficiary in your Will)

Transforming end-of-life and palliative care services

Safewill is here to help you navigate the uncertainty that comes with death and dying. Whilst you might not know what's round the corner, when it comes to your medical treatment and palliative care wishes- planning ahead adds in a layer of certainty.

From easily writing your Will with our online platform to planning your own funeral with our empathetic arrangers, our team provides end-of-life services that support you in moving forward on your terms.

Whether its writing your Will, appointing a power of attorney or an enduring guardian- there are things you can do in life to help safeguard your wishes against life limiting illness, and death.

Seek legal advice on how to secure these palliative care powers today, and lock in a decision maker to make medical decisions in your best interest. To find out more, reach us on1300 730 639, or via livechat now.

Last updated 28th June 2022
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Daniela Brinis-Norris
Writer and Editor
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Safewill is an online service providing streamlined forms and information. Safewill is not a law firm or a substitute for a lawyer’s advice about complex estate planning issues.