An Advance Care Directive (ACD) is a legal estate planning document allowing you to outline your wishes and preferences when it comes to future medical care and end-of-life treatment. An ACD is a tool used by your medical treatment decision maker to guide them through any decision making.
This article provides a brief overview of the Advance Care Directive and answers the most common questions. If you have further questions make an appointment with our estate planning experts here or call (03) 9917 3388.
What is an Advance Care Directive?
An Advance Care Directive is a formalised version of your advanced healthcare plan. It can contain all your needs, values and preferences for your future care and details of a medical treatment decision maker. When correctly prepared and executed, this legal document will take precedence over other estate documents.
It outlines your preferences for your future care, along with your beliefs, values and goals. While health care directives differ slightly 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.
An Advance Care Directive guides your medical treatment decision maker when they are acting on your behalf when you can no longer make decisions yourself. It can be useful to have one in place if you become unwell later on, or lose the ability to make medical decisions yourself.
When should I make an Advance Care Directive?
You should make an Advance Care Directive if you have an ongoing medical condition; have an upcoming medical procedure or surgery; or if you are elderly or nearing your end of life.
Anyone aged 18 years or over can make a health directive at any time as long as they have ‘full legal capacity’ to do so.
What should I include in it?
When making an Advance Care Directive, there are a few things you will need to consider:
- Details of what is important to you: including values and preferred outcomes; and
- The treatments and care you would like or would refuse if you have a life-threatening illness or injury.
Do I lose the ability to make my own decisions?
Making an Advance Care Directive does not mean that you will lose control over your medical decision making. It simply informs others of your end-of-life wishes, including medical decisions, in the event that you can’t communicate these for yourself later on.
Is an Advance Care Directive called something else?
An Advance Care Directive is sometimes also known as a Living Will. The directive is called different things in each state. In addition, the decision making aspect is dealt with slightly differently depending on which state you reside in:
- An Advance Care Directive exists in Victoria, NSW, South Australia and Tasmania.
- An Advance Health Directive exists in Queensland and Western Australia.
- A Health Direction exists in the ACT.
In most states, an advance health directive will deal with your medical preferences only. Most commonly, it will not give the ability for someone to make medical decisions on your behalf.
For example, in Victoria, medical decisions come under an Appointment of Medical Decision Maker (AMDM). However, if both an Advance Care Directive and an Appointment of Medical Decision Maker are in place, the medical decision maker is then bound by the directive.
For advice on which directive is required in your state, and what medical authority it has, make an appointment with our estate planning team here or call (03) 9917 3388.
Who needs to sign an Advance Care Directive?
Before it can become a legally binding document, the advance health directive document must be signed and witnessed. This differs in each state.
- In Victoria, an Advance Care Directive must be signed by two independent adults, including one registered medical practitioner.
- In NSW, there isn’t a specific form to make an advance health directive. It can simply be written on a piece of paper, not witnessed and still be legally enforceable.
- In the ACT, a Health Direction must be signed by two witnesses in the presence of each other and the person making the direction.
- In Queensland, a doctor must complete Section 5 of the Advance Health Directive 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).
- In Western Australia, an Advance Health Directive must be signed by an authorised witness 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.
- In South Australia, an Advance Care Directive must be signed by an independent authorised person.
- In Tasmania, an Advance Care Directive must be signed by a witness who is 18 years or over and unrelated to the person making the direction and is not a known beneficiary in that person’s Will.
Do I need to register it?
Your Advance Care Directive doesn’t need to be registered anywhere. However, the signed document, along with an Appointment of Medical Decision Maker (if one exists) can be uploaded to your My Health Record. Is recommended that copies are given to your Next of Kin and relevant health practitioners or health services.
Make your Next of Kin and family aware of the advance health directive and store it in a safe and accessible place. If you are storing the document with your Last Will & Testament, be sure not to staple it or attach it to the Will document in any way, otherwise it can invalidate your Will.
This article is not legal advice. You should chat with a legal professional for specific advice on your personal or financial situation.
At Bare Cremation, we have a team of estate planning experts on hand to help you make an Advance Care Directive. Our team of Wills and Estates lawyers and estate planning experts are here to support you in creating or updating your Will, getting your estate plan in place, or simply answering any questions you have about a complicated topic.
Whether you just need a free Will or an entire estate planning kit, we have a package that suits your needs. Visit the Bare Law website here, or chat with our estate planning team on (03) 9917 3388.
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