What Are Advanced care Directives?

It may be the case that you want to express your wishes regarding an end of life decision.  These wishes are contained in a document called an “advanced care directive”.

In addition to stating these directives you should appoint an enduring guardian who is a person who can make decisions about your health and welfare if you lose the ability to make that type of decision.  Your guardian can consent to medical treatment or withhold medical treatment.

End of life decisions are generally made in consultation with your medical advisers.  There is case law in NSW where the court upheld a persons wishes outlined in an advance care directive. The court had held that: “If an advance care directive is made by a capable adult, and is clear and unambiguous, and extends to the situation at hand, it must be respected”.

Your advance care directive will state your wishes that you do not wish to receive medical treatment, or if you do, what treatment that you would consent to i.e. pain management. You should review the directive periodically in case your wishes or circumstances have changed.

If you wish to discuss this further or to arrange other estate planning issues please contact our Estates & Property team on 1800 770 780 (free call).

What Should Your Advance Directives State?

That you want to make an advance directive

Why you want to make an advance directive

What treatment you would consent to

What treatment you would not consent to

That you consider this directive to be binding on your treating doctor

If you wish to make an advance directive please contact our Estates Planning team for further advice.

Why and how?

The presumption that an adult is capable of consenting or refusing medical treatment is rebuttable. Thus an Advance Care Directive (ACD) is an effective way for people to decide for themselves who should assist them and what decisions should be made in their behalf when they no longer have the capacity to make medical decisions.

There is no legislation in NSW regulating ACDs, thus there is no legal form or requirement to lodge the directive. This does little to respect and protect the needs of dementia sufferers, illustrating that legislation is non-existent rather than ineffective.

Nevertheless an ACD can be incorporated into an Enduring Guardianship document. With common law holding that if it is made by a capable adult, is clear and unambiguous and is applicable to the situation it must be respected. It can only be challenged if the patient was incompetent, unduly influenced or coerced when creating it. Thus while NSW legislation lacks in this regard, common law acts to protect sufferers of dementia unable to make decisions, embedding ACD’s into an Enduring Guardianship which is provided for by legislation.

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