Advance directive is a critical document in a healthcare emergency

If and when the time comes that you are unable to communicate or manage your own affairs, there are many decisions to be made by those who care for you. To make things easier for them and to ensure your wishes are known, you can put in place ahead of time a legal instrument, which sets out how you want your financial affairs, daily needs and health care decisions managed.

There are several choices of legal instrument available, each with a different purpose. These include an Enduring Power of Attorney, the appointment of an Enduring Guardian and the creation of an Advance Directive document (also known as an Advance Healthcare Directive, a Personal Health Directive and a Living Will).

An Enduring Power of Attorney authorises someone else to carry out business, financial or property affairs on your behalf. It does not cover healthcare and lifestyle decisions.

The appointment of an Enduring Guardian enables the person appointed to deal with health and lifestyle decisions. The Enduring Guardian can consent to or withhold medical treatment based on your known wishes and can also determine which services you receive and where you will live. But an Enduring Guardian has no authority to make financial decisions on your behalf.

An Advance Directive is a document that sets out your wishes or directions regarding your future healthcare.

Streeterlaw advises that it is wise for all adults to at least have an Advance Directive in place.

“We strongly recommend that you sign an Advance Directive if you wish to have a say in your future medical treatment in the event of serious illness or injury, which may mean you are incapable of making decisions for yourself,”

When you are well, competent and can speak for yourself, you have the legal right to accept or refuse any form of medical or healthcare treatment. Unfortunately, many critical decisions need to be made during severe illness or injury, when people are unconscious or otherwise unable to communicate their wishes. An Advance Directive will enable you to make your wishes known before this happens. It may assist you in living more comfortably and dying with dignity in accordance with your personal values.

We strongly recommend that you sign an Advance Directive if you wish to have a say in your future medical treatment in the event of serious illness or injury.

An Advance Directive can be made by anyone who has the capacity to do so. It will only be used if the person becomes incapable (due to illness or injury) of making healthcare decisions for themselves.

Advance Directives are legally binding in New South Wales but they must:

• Be made by a capable adult over the age of 18 years
• Be made while you have mental capacity
• Contain clear instructions that are relevant and specific about what you want to happen if you become unwell
• Be witnessed by an independent adult witness.

There is no set form for making an Advance Directive and there is no limit to what you can include. They often focus on end-of-life decisions, such as whether or not you want to be resuscitated or kept on life support if you lose consciousness or stop breathing in certain circumstances. A request for euthanasia would not be followed as this would be a breach of the law.

A valid Advance Directive, which expresses wishes regarding active treatment or refusal of treatment, takes priority over the wishes of family or the recommendations of medical staff. It is advisable when making an Advance Directive to discuss its provisions with your family, friends and healthcare professionals. Copies of the document should be distributed to people who may be involved in making medical decisions once you lose the capacity to make them yourself. Family members are often grateful and value the opportunity to discuss and better understand your wishes. Disputes among family members as to what you would have wanted can also be avoided.

You can change the wishes expressed in your Advance Directive or revoke it completely at any time, provided you are mentally capable of doing so. It is advisable to review the Directive at regular intervals and when there are significant changes in your health.

At present, there is no national framework in Australia dealing with Advance Directives. Unlike other Australian states, New South Wales does not have any legislation dealing with Advance Directives. You may need to take into account differences between state laws and health regulations if you reside outside New South Wales.

Written by Mark Streeter

The Director of Streeterlaw, Mark has been practicing Law since 1994. He has attained his Masters of Law in 1999 and in 2006 was awarded his Specialist Accreditation in Commercial Litigation. Mark is a member of ARITA, a graduate of the AICD and a member of AICM. A member of STEP, Mark enjoys working in the area of Wills and Estates. In 2020 Mark is the Chair of STEP NSW.

Call us on 02 8197 0105 to book an appointment with Mark Streeter!