Advance Care Directives

If you have already completed an Enduring Power of Guardianship, a Medical Power of Attorney or an Anticipatory Direction, these are still legally effective, unless you complete the new Advance Care Directive Form.

What is an Advance Care Directive?

An Advance Care Directive is a legal form that allows people over the age of 18 years to:

  • write down their wishes, preferences and instructions for future health care, end of life, living arrangements and personal matters and/or
  • appoint one or more Substitute Decision-Makers to make these decisions on their behalf when they are unable to do so themselves.

It cannot be used to make financial decisions.

If you have written a refusal of health care, it must be followed if relevant to the circumstances at the time. All other information written in your Advance Care Directive is advisory and should be used as a guide to decision-making by your Substitute Decision-Maker(s), your health practitioners or anyone else making decisions on your behalf.

It is your choice whether or not to write an Advance Care Directive. No one can force you to have one or to write things you do not want. These are offences under the law.

You can change your Advance Care Directive at any time while you are still able by completing a new Advance Care Directive Form.

Your new Advance Care Directive Form will replace all other documents you may have completed previously, for example an Enduring Power of Guardianship, Medical Power of Attorney or Anticipatory Direction.

When will it be used?

Your Advance Care Directive only takes effect (can only be used) if you are unable to make your own decisions, whether temporarily or permanently.
If you cannot:

  • understand information about the decision
  • understand and appreciate the risks and benefits of the choices
  • remember the information for a short time; and
  • tell someone what the decision is and why you have made the decision.

It means you are unable to make the decision (sometimes called impaired decision-making capacity) and someone else will need to make the decision for you.

Who will make decisions for you when you cannot?

It is your choice whether or not you appoint one or more Substitute Decision-Makers. If you have appointed one or more Substitute Decision-Makers, they will be legally able to make decisions for you about your health care, living arrangements and other personal matters when you are unable to. You can specify the types of decisions you want them to make in the Conditions of Appointment Part 2b of your Advance Care Directive Form.

If you do not appoint any Substitute Decision-Makers, others close to you may be asked to make decisions for you if you are unable to (Person Responsible). They must follow any relevant wishes or instructions you have written in your Advance Care Directive.

Anyone making a decision for you will need to make a decision they think you would have made in the same circumstances.

Refusals of health care

You may have written in your Advance Care Directive that you do not want certain types of health care, also known as a refusal of health care. It is important to make sure you have written down when or under what circumstances any refusals of health care apply.

If you have refused specific health care in your Advance Care Directive, your Substitute Decision-Maker(s) (Person Responsible) and your health practitioner must follow that refusal if it is relevant to the current circumstances.

This means that your health practitioner will not be able to give health care treatment you have refused.

If you refuse health care but do not write down when the refusal applies, it will apply at all times.

A health practitioner can only override a refusal of health care if there is evidence to suggest you have changed your mind but did not update your Advance Care Directive, or the health practitioner believes you didn’t mean the refusal of health care to apply in the current circumstance.

If this happens they will need consent from your Substitute Decision-Makers, if you have any, or a Person Responsible, to provide any health care.
You cannot refuse compulsory mental health treatment as listed in a community or involuntary treatment order if you have one.

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The following sample legal document is provided by Family Law Express for informational purposes only. It is intended to be used as a guide prior to consultation with a solicitor or other legal professionals familiar with your specific legal requirements and circumstances.

Family Law Express does not provide legal advice and we stress that this sample legal document is not a substitute on its own for consultation with a solicitor and/or other legal professional. If you intend to legally rely on a sample legal document acquired via the Sample Legal Document module on Family Law Express, you should seek expert legal advice from a suitably qualified legal expert to ensure that the document meets all legal requirements for your state or other jurisdiction.

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