Advanced Care Directive
…also known as…
The Living Will
This is an important document that lets people know about your wishes for healthcare and treatment should you find yourself where you are seriously ill or injured and cannot make those decisions. It makes it easier for your loved ones, your health professional or your Enduring Guardian to make those decisions. The Advance Care Directive is a result of Advanced Care Planning and can only be made by you as an adult with decision making capacity.
Is the Advanced Care Directive legally binding?
While NSW does not have a statutory scheme in place the NSW Courts have upheld the validity of Advanced Care Directives, therefore in NSW, health professionals and family members have no authority to override a valid Advance Care Directive. These types of directives are known as common law directives and exist in all States expect Queensland. Statutory Advance Care Directives which are governed by state and territory legislation. These types of Directives exist in all states and territories except New South Wales and Tasmania.
There are some limited circumstances in which a Directive does not have to be followed. Examples are where a Directive is too uncertain to guide decision-making or where circumstances have changed so much since completing the Directive that it should not be followed. The law on this differs across Australia.
What wishes can I express in the Advance Care Directive?
The Directive can be used to :
- make specific decisions about future treatment. This can include consenting in advance to treatment but more commonly involves refusing treatment, even if that might result in death.
- express general wishes (for example goals of care, or wanting to die at home rather than in hospital) and personal values (spiritual, religious or cultural beliefs relevant to the person’s care).
- in most states and territories, appoint a substitute decision-maker to make future health care decisions if the person loses capacity
Your doctors can help by explaining what treatments you could include in your Advance Care Directive based on your current health. They can also make sure that what you write can be understood by a health professional.
Who will make the decisions if I cannot?
It is important to think about who you would like to make those decisions. Some people choose a family member or close friend, or some people appoint an Enduring Guardian. If it’s not clear in your Advance Care Directive who this person or people are, your doctor will ask
someone else to make the decision for you. This person is known as the Person Responsible. The person responsible is not always the next-of kin but will be the first readily available from the following:
- Spouse (including de facto or same-sex partner), provided the relationship is close and continuing;
- Non-professional carer (someone in receipt of a carer’s pension is eligible); or
- Close relative or friend
In an emergency where there is no Directive, or the Doctor or Hospital is unaware of one, and it is not possible to obtain the consent for treatment from the Enduring Guardian or Personal Representative, the medical intervention may be carried out. Once the patient is stabilised consent will be required for any further treatment.
How do I make an Advance Care Directive?
In NSW, there isn’t a specific form to use for an Advance Care Directive. The Directive can written on a piece of paper or be spoken. However, signed Advance Care Directives are the recommended way to ensure that your wishes are recorded.
If you want to make an Advance Care Directive you can choose to:
• use another form, such as one of those available from www.planningaheadtools.com.au
• write a letter or statement about your wishes
• tell someone that you trust and who knows you well.
• use our Advance Care Directive form. Simply click below