Planning Advance Care Directives in NSW

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  1. What are Advance Care Directives?
  2. Why Create an Advance Health Care Directive?
  3. Process of Advance Care Planning
  4. What Should Your Advance Care Directive State?

Advance care directives allow you to state your wishes regarding your end of life health care decisions. Using a health care directive provides you with a vehicle to make decisions regarding being resuscitated, the use of feeding and hydration to prolong your life, and even allow you to direct your health care professionals to not take any extraordinary measures to keep you alive. While these issues can be very difficult to consider, many people do find that they want to make these types of decisions for themselves while they are able to do so.

At Owen Hodge Lawyers, we have a team of professional expert solicitors who can assist you in making these decisions and then properly codifying them in an advance health care directive document that is legally enforceable and will allow your health care proxy to carry out your stated wishes.

What Are Advance 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 “Advance Care Directive.”

In addition to stating these directives you should appoint an enduring guardian. An enduring guardian is a person who can make decisions about your health and welfare if you lose the ability to make that type of decision yourself.  Depending upon your directives, 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 person’s 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 which can include that you do not wish to receive medical treatment, or if you do, what treatment you would consent to i.e. pain management. You should review the directive periodically in case your wishes or circumstances have changed.

Why Create an Advance Health Care Directive?

An Advance Care Directive is an effective way for people to decide for themselves who should assist them and what decisions should be made on their behalf when they no longer have the capacity to make medical decisions.

There is no legislation in NSW regulating Advance Care Directives, 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 Advance Care Directive can be incorporated into an Enduring Guardianship document. Common law holds that if the Advance Care Directive 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, what NSW legislation lacks in protecting advance health care directive rights, common law acts to protect those rights.

Process of Advance Care Planning

Firstly, you must consider what your directives will be as these directives will be different for everyone. It is important to share your ideas and concerns with your medical care team so that you can make informed decisions about your end of life health care.

Next, you must elect an enduring guardian to carry out your directives. It is important that this is a person that you trust and has the maturity and willingness to carry out your wishes, even in the face of controversy by those who might not agree with your choices. Before you select this person, it is a good idea to sit down and discuss your plans with them and confirm that they are comfortable in assisting you with carrying out your wishes.

Last, once your directive is complete, it needs to be given to your doctor or medical care team, possibly registered with your local hospital, and provided to your enduring guardian. In addition, your physician and your enduring guardian should have the contact information of your attorney so that they can reach them in the event a legal issue arises in the implementation of your wishes.

What Should Your Advance Care Directive State?

An advance care directive involves documenting your preferences for your future care, and any specific wishes that you may have. It will typically involve what medical treatment and care you do or do not want or consent to, but it can also include wishes about any aspect of your life such as values or goals.

An Advance Directive should also state that you wish to formally make this document and your reasons for doing so. It is also important to include that you consider this directive to be binding on your treating doctor and share the document (once formalised) with your medical practitioner.

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Frequently Asked Questions

Yes, case law provides that the proper creation and implementation of an advance care directive will be legally binding, despite that advance care directives are not included in NSW legislation.

Advance care directives are specific to end of life decisions. A living will can encompass these decisions and other legal concerns. Therefore, living wills can be advance care directive oriented, but an advance care directive can only address issues of your future medical treatment and therefore are more restrictive in their use than a living will.

The most common advance care directives include; do not resuscitate and do not insert a feeding/hydration tube.

No, an enduring guardian cannot override an advance care directive.

Ask our lawyers anything

At Owen Hodge, we provide all services related to Wills, Trust, Power of Attorney, and Advance Care Directives. The solicitors at Owen Hodge Lawyers have expertise in the areas of Last Will and Testament, Contesting a Will, Deceased Estate, and Elder Law. Within each of these areas, our lawyers can provide clients with additional guidance for drafting an Advance Care Directive, as needed and appropriate.

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