Everyone has the right to make their own decisions about the medical treatment they receive. But sometimes an injury or illness can leave you unable to make those decisions yourself. If you’re in the process of estate planning and making a Last Will & Testament, then you should also consider a Living Will as a measure to protect yourself in the event that you can’t make decisions for yourself later on.
A living will, which is also called an advance care directive, health direction or similar, can contain all your needs, values and preferences for your future care and details of a substitute decision-maker. When correctly prepared and executed, this legal document will take precedence over other estate documents.
This article will explain living wills and how to access the relevant forms for each state and territory in Australia. It’s broken down into the following sections:
- What is a living will?
- Why is a living will important?
- How do you make a living will?
- Advance care directive downloadable forms
- Final thoughts on living wills
1. WHAT IS A LIVING WILL?
A living will, formally called an advance care directive, is a formalised version of your advance care plan. It outlines your preferences for your future care along with your beliefs, values and goals. While advance directives differ between states and territories, they outline an individual’s wishes for their future medical treatment in circumstances where they are unable to provide their consent. They also allow you to formally appoint a substitute decision-maker to act on your behalf if you can no longer make decisions yourself.
2. WHY IS A LIVING WILL IMPORTANT?
Making a living will, or advance directive, is an important part of your end-of-life care planning. It is impossible to know what will happen in the future concerning your health and you might have firm ideas about how you want to live the rest of your life. So outlining your health and medical wishes in a document, while you are sound of mind, gives you the assurance that they will be upheld if you become unable to make those decisions yourself later on.
Health practitioners need your consent before providing medical treatment. However, an illness or injury may mean that you do not have the decision-making capacity to make the medical treatment decision. In a crisis, your loved ones may find it difficult to decide what treatment is best for you. An advance directive will help everyone know what you would want if you can’t tell them. It’s a legal document that provides an instructional directive with legally binding instructions about future medical treatment you consent to or refuse.
A living will allows you to express your broader preferences and values for end of life and future medical treatment – like what ‘living well’ means to you, what treatments you would or wouldn’t like, and any other preferences in terms of spiritual care or cultural beliefs when the time comes.
You can make a values directive about your preferences for medical treatment to help guide your decision-maker (e.g. “Quality of life is most important to me”) and/or an instructional directive which is a legally binding statement of your consent to or refusal of specific future medical treatment (e.g. “I do not wish to be resuscitated”).
3. HOW DO YOU MAKE A LIVING WILL?
A living will, or advance directive, can include one or more of the following:
- the appointed person you would like to be your substitute decision-maker;
- details of what is important to you, including values and preferred outcomes;
- the treatments and care you would like or would refuse if you have a life-threatening illness or injury.
You must have decision-making capacity in order to make an advance care directive, however you don’t require a lawyer to complete a valid directive. Forms and requirements for writing advance directives and appointing substitute decision-makers vary between and states and territories. You can download the forms for your state or territory through the links in the below section.
Once you have written your advance directive, you should sign and date it. Your substitute decision-maker and your doctor can also sign it. If you have appointed a medical treatment decision-maker, ensure that they have read and understood it. You should then give copies of your directive to your family, substitute decision-maker, hospital and doctor. Please keep your original advance directive safe and accessible for when it is needed. Your advance care directive can also be uploaded to your My Health Record.
It is recommended that you review your advance directive every two years, or whenever there is a change in your personal or medical situation.
An advance directive will generally become legally valid if it’s signed by a person who has decision-making capacity and by an eligible witness (or two in some instances). The directions are usually valid in other parts of Australia, although there may be some limitations and additional requirements. If you are permanently moving state or territory, it is a good idea to update your documentation.
4. ADVANCE CARE DIRECTIVE DOWNLOADABLE FORMS
Living Wills – South Australia
In South Australia a Substitute Decision-Maker can be appointed through an Advance Care Directive.
The form will only be valid if it is signed by an independent authorised witness, such as a Justice of the Peace, lawyer, doctor, nurse, pharmacist, teacher or public servant (for more than five years).
You can download the Advance Care Directive Form (SA) here.
Living Wills – Victoria
In Victoria, you can formally appoint someone to act on your behalf for medical matters under an Appointment of Medical Decision Maker. This document will enable you to grant the decision-making ability to someone who you trust. Your medical treatment decision maker will have legal authority to make medical treatment decisions on your behalf, should you become unable to do so.
An Appointment of Medical Decision Maker document must be witnessed by two independent adults, including one who is an authorised witness, such as a Justice of the Peace, lawyer, doctor, nurse, pharmacist or teacher.
You may wish to create an Advance Care Directive to compliment your Appointment of Medical Decision Maker. An Advance Care Directive creates a detailed outline of your medical values and preferences and can be extremely useful for your Medical Decision Maker to refer to when they are making decisions on your behalf.
An Advance Care Directive must be witnessed by two independent adults, including one who is a registered medical practitioner.
If you made an advance care plan prior to 12 March 2018, this will merely be considered by your medical treatment decision-maker as a statement of your values and preferences. You may want to consider making a new legally binding directive.
Living Wills – NSW
In New South Wales, the living will is referred to as an Advance Care Directive.
Unlike in other states, in NSW there isn’t a specific form to use for an Advance Care Directive. An Advance Care Directive can simply be written on a piece of paper, not witnessed and still be legally enforceable. However, a signed Advance Care Directive is the recommended way to ensure that your wishes are recorded.
More information on Making an Advance Care Directive (NSW) can be found here.
For further assistance with wills and estate planning in NSW, read our Estate Planning Guide – NSW here.
Living Wills – Queensland
In Queensland, a living will is referred to as an Advance Health Directive.
A doctor must complete Section 5, and a witness must complete Section 9. Your witness must be at least 21 years of age and either a justice of the peace, a commissioner for declarations, a lawyer or a notary public. They must not be your attorney, a relation of yours, a beneficiary under your will, your current paid carer or your current health-care provider (e.g. nurse or doctor).
You can download the Advance Health Directive (QLD) form here.
For further assistance with estate planning in Queensland, read our Estate Planning Guide – Victoria here.
Living Wills – Western Australia
In Western Australia, a living will is called an Advance Health Directive. It impacts future medical and surgical treatment; any life-sustaining measures; and palliative care.
To be legally valid, the living will must be witnessed by an authorised person such as a Justice of the Peace, lawyer, doctor, nurse, pharmacist or teacher. It also needs to contain a statement which confirms that you have sought legal or medical advice beforehand.
You can download the Advance Health Directive (WA) form here.
Living Wills – Australian Capital Territory (ACT)
In the ACT, the living will is referred to as a Health Direction. It must be signed by two witnesses in the presence of each other and the person making the direction.
You can download the Health Direction form (ACT) here.
Living Wills – Tasmania
In Tasmania, a living will is known as an Advance Care Directive for Care at the End of Life. It must be signed by a witness who is over 18, unrelated to the person making the direction and is not a known beneficiary in that person’s will.
You can download the Advance Care Directive (TAS) form here.
Living Wills – Northern Territory (NT)
In the Northern Territory, the living will is referred to as an Advance Personal Plan.
To be valid, it needs to be signed by an authorised witness. These may include any of the following: Commissioners for Oaths, including legal practitioners, Justices of the Peace and police officers; doctors, nurses, pharmacists, health practitioners; accountants; Chief Executive Officers of Local Government Authorities; social workers; or principals of Northern Territory schools.
You can download the Advance Personal Plan (NT) form here.
5. FINAL THOUGHTS ON LIVING WILLS
Like other estate planning documents, a living will is an important legal document that should be in place if you want to inform others of your end-of-life wishes, including for medical decisions, in the event you become unable to do so later on.
It’s important to ensure these documents are up to date and safely stored. Keep a copy in a safe place and give another to your appointed decision-maker, a trusted family member or lawyer. And get back to living!
We hope this guide to living wills and advance care directives has provided you a better understanding of the process. More advice on estates is available bare.com.au including our article What can be paid out of a deceased estate account.
To learn more, visit the Bare Law website or chat with our estate team for a free consultation, on (03) 9917 3388.
This article is not legal advice. You should speak with your solicitor or accountant for specific advice on your personal or financial situation.