An advance care directive is a written statement from a person, setting out their specific wishes regarding medical treatment and associated matters in the event they are unable, due to incapacity, to instruct practitioners and others directly.

Advance care directives are commonly known as “living wills”.

In New South Wales and Australian Capital Territory there is no set form for an advance care directive, and no particular area of decision making needs to be covered.

In South Australia, an advance care directive must be made on the approved form and the requirements for making one are set out in the Advance Care Directives Act 2013 (SA).

Broadly speaking, an advance care directive made in South Australia allows a person to do one or more of 3 things:

• to appoint one or more “substitute decision makers” to make decisions on their behalf if they lose capacity to do so;

• to set out their values and wishes around things such as accommodation, medical treatment and end of life decisions; and

• to make a binding direction about end of life decisions (specifically, withdrawal of treatment in certain situations).

In the ACT, the requirements for a written advanced care directive (known in the ACT as a written health care direction) are set out in s 8 of the Medical Treatment (Health Directions) Act 2006 (ACT). There is an approved form which should be used. See the ACT Legislation Register for the approved Health direction — Form. The health care direction is not valid if it is inconsistent with an existing enduring power of attorney. It will be revoked by a subsequent enduring power of attorney unless specifically referenced and retained.

Common areas covered in advance care directives are:

• whether or not life support (or life sustaining measures such as artificial feeding or hydration) is to be applied or continued;

• particular treatments the person does not want administered, for example blood transfusions; and

• directions regarding cardiopulmonary resuscitation (commonly referred to as “do not resuscitate” clauses).

In Queensland, there is a prescribed form for an advance health directive (s 44(2), Powers of Attorney Act 1998 which may be used. The matters covered in the advance health directive include whether the person wishes to receive:

• cardio-pulmonary resuscitation;

• assisted ventilation;

• artificial nutrition and hydration; or

• other treatment eg, antibiotics.

Advance care directives can broadly describe any type of document which allows a person to appoint others to make decisions for them or which sets out a person’s wishes in the event they lose capacity to make decisions for themselves.

In South Australia, prior to the introduction of the Advance Care Directives Act 2013 (SA), a person could (under different pieces of legislation) appoint one or more enduring guardians to make health care, accommodation and lifestyle decisions on their behalf, could appoint a medical attorney to make medical treatment decisions only and could make a binding “anticipatory direction” in relation to end of life health care decisions. From 1 July 2014, the Advance Care Directives Act allows people to now make advance care directive documents which allow (in one document) a person (the principal) to do 1 or more of 3 key things:

• appoint one or more substitute decision makers to make decisions about their health care, accommodation and other personal decisions if the principal is unable to make those decisions themselves due to having impaired decision making capacity;

• set out their wishes and values regarding health care, accommodation, end of life decision, etc. to provide guidance to their substitute decision maker(s) (if appointed) or to others such as medical staff if no substitute decision makers are appointed; and

• make a binding direction in relation to withdrawal of medical treatment in certain circumstances.

The principal can do only one of these things or all of them in this document.

In the 2004, NSW Government Ministry of Health publication “Using Advance Care Directives — New South Wales”, a distinction was drawn between advance care plans and advance care directives:

Advance care planning refers to the process of preparing for likely scenarios near the end of life and usually includes assessment of, and dialogue about, a person’s understanding of their medical history and condition, values, preferences and personal and family resources. An advance care directive (ACD)… describes one’s future preferences for medical treatment in anticipation of a time when one is unable to express those preferences because of illness or injury. Completion of an ACD ideally should be one component of the broader advance care planning process.

It is never too early to prepare an advance care directive when dealing with a person's overarching desires regarding accommodation, medical treatment and end of life decisions. That said, if a person is suffering from an illness or disease at the time of crafting the advanced care directive, the greater foreknowledge of particular scenarios with respect to the person's health means that the advance care directive can address specific circumstances, as well as the overarching desires referred to above.

Sometimes, a person with a validly executed appointment of enduring guardian (in NSW, or the equivalent thereof in other states, in the ACT — an enduring power of attorney), who has set out in that document their specific wishes regarding matters such as end of life decisions, may feel they are in less need of a separate advance care directive than someone without an appointment of enduring guardian or whose appointment of enduring guardian is silent on the issue of such decisions. This is because the appointment of enduring guardian is an appointment of a person to make decisions on the principal's behalf. If the appointee is appropriately guided in the document and trusted to make the right decision, the need for a separate document setting out the principal's wishes is lessened.

However, a client wishing to exhaustively cover the estate planning/advance care planning area would be well-served by the preparation of all relevant documents, including enduring powers of attorney, appointments of enduring guardian and advance care directives. Even with an enduring guardian appointed, the advance care directive will provide the guardian and healthcare practitioners with guidance in relation to those areas of importance to the principal, and will have the authority arising from being at the principal’s own hand, rather than a person to whom decision making power was delegated, such as a guardian.

In SA, enduring powers of guardianship have been replaced by advance care directives. In SA, an ACD will revoke a previous power of guardianship.

If the person has made an enduring power of attorney appointing an attorney for personal and health decision, then that attorney has the power to make decisions regarding the withholding or withdrawal of life sustaining measures on the principal’s behalf. Accordingly, it is not essential for a person who has made such an enduring power of attorney to put in place an advance health directive.

Furthermore, in Queensland, in the absence of a person having appointed an attorney with power to make health decisions, a statutory health attorney is appointed under the Powers of Attorney Act 1998 and provided with the authority to make decisions regarding medical decisions, including the withholding or withdrawal of life sustaining measures. A statutory health attorney is the first available adult who is either the spouse of the person requiring care, or an adult responsible for his or her care (other than a paid carer or health care provider). If no person is available, then the Public Guardian will become the statutory health attorney. See s 63, Powers of Attorney Act 1998.

However, a client wishing to exhaustively cover his or her advance care planning would be well-served by the preparation of all relevant documents, including an enduring power of attorney and advance care directive. The preparation of an advance health directive means that the person makes their own decisions regarding their medical treatment at the end stages of life and is not dependent upon an attorney or statutory health attorney providing appropriate instructions to the medical practitioners, nor burdening the attorney with those decisions.

Advance care directives exist in all Australian states and territories. However, each state and territory has a different framework governing the form, content and use of advance care directives. For example, some states make specific provision in legislation for advance care directives, whereas in other states advance care directives are a product of the common law only.

Accordingly, many differences (some slight, some pronounced) have arisen between the respective states’ frameworks for advance care directives.

See Advance care directives — NSW. See Advance care directives — ACT.

See Advance care directives — SA.