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What is a Living Will in Australia?

advance care directive | Justice Family Lawyers

Advance care directives are powerful legal documents that give you a voice in shaping your future medical care.  

Have you ever wondered what kind of treatment you’d receive if you were in an accident and couldn’t speak for yourself?  

In this blog post, we’ll explore why these documents are essential for everyone, regardless of age or health status. 

We’ll break down the legality behind Advance Care Directives, how it can be put as a legally binding document, and its difference to Advance Care Plan.

Where Can an Advance Care Directive be Written?

You don’t necessarily need a specific location to write an advance care directive in Sydney. It can be done at your own home using any of the following ways:

  • NSW Government Form: The NSW Government provides an Advance Care Directive book that includes guidance and a form to complete.
  • Written Letter: You can create a simple written letter outlining your preferences for future healthcare and any specific treatments you’d agree to or refuse. This needs to be clearly structured, signed, and dated.
  • My Health Record: You have the option of uploading your Advance Care Directive to your My Health Record. This ensures healthcare professionals have easy access to your wishes.
  • With Assistance: You can seek assistance in preparing your ACD from:
  1. Your doctor or healthcare team
  2. A solicitor speacialising in Advance Care Directives
  3. Advance Care Planning Australia

Is an Advance Care Directive Legally Binding?

Advance Care Directives (ACDs) in New South Wales have a complex legal status. Here’s the breakdown:

  • Generally Binding: Common law in NSW recognizes ACDs as legally binding when the following conditions are met:
    • You had the mental capacity to make the directive when it was created.
    • The ACD is clear and unambiguous about your medical preferences for specific situations.
    • The situation it addresses has arisen (e.g., you have a condition that aligns with what your ACD describes).
  • Limitations: Despite being generally binding, there are situations where healthcare providers might not follow your ACD exactly:
    • Ambiguity: If your ACD is unclear or open to interpretation, healthcare providers may need to act in your best interests as they understand them.
    • Medical Inappropriateness: If a doctor deems a treatment request medically inappropriate or impossible, they don’t have to follow it.
    • Emergency Situations: In life-threatening emergencies, doctors may act to save your life even if it temporarily contradicts your ACD. They should aim to follow your wishes as soon as possible.
  • Not Absolute, But Highly Influential: Due to potential exceptions, ACDs in NSW are best considered legally persuasive rather than absolutely binding. Healthcare providers should make all reasonable efforts to uphold your wishes as expressed in your ACD.

Also read: Letter of Wishes Australia: What It Is and How to Write One

Why you should still create an ACD

Even with limitations, an ACD is crucial for ensuring your medical preferences are known and respected. 

An ACD gives clear guidance to your healthcare providers and loved ones, preventing confusion or conflict about your wishes.

Lastly, it offers some protection against unwanted medical interventions if you lose the ability to communicate your choices.

Important Things to Do

  • Be as clear about what treatments you want or refuse under specific circumstances.
  • Discuss your wishes with your family and substitute decision-maker(s) to ensure they understand your choices.
  • Revisit your ACD periodically, especially if your health situation changes.

Who Can Witness an Advance Care Directive?

In New South Wales (NSW), Australia, the requirements for witnessing an Advance Care Directive are not as strictly legislated as they are for some other legal documents.

However, best practices and general recommendations suggest that certain criteria should be met to ensure the document is considered credible and valid, especially during critical medical decisions.

Here are the key points regarding who can witness an Advance Care Directive in NSW:

  1. Healthcare Professionals: It is often recommended that a healthcare professional, such as your general practitioner or a specialist involved in your care, witnesses your Advance Care Directive. Their endorsement can add weight to the document, indicating that you were informed about the medical implications of your decisions.
  2. Legal Professionals: While not mandatory, having a solicitor or notary public witness your Advance Care Directive can also lend it additional legal credibility. This is particularly useful if there are concerns about the document being challenged or if your family dynamics are complex.
  3. Adults of Sound Mind: Generally, any adult who is competent and understands the nature of the document can act as a witness. This could include friends or family members. However, to avoid potential conflicts of interest or challenges, it is advisable not to have beneficiaries of your estate or those with vested interests in your medical decisions serve as witnesses.
  4. Documentation: Ensure that the witness signs and dates the document, clearly indicating their capacity (e.g., Dr., RN, Solicitor) and their contact information, if appropriate. This information can be vital if the Advance Care Directive is later scrutinized or if its validity is questioned.

While NSW law does not set rigid requirements for who must witness an Advance Care Directive, following these best practices can help ensure the document is respected and adhered to when it is most needed.

It is also a good idea to review and follow any specific guidelines or recommendations provided by healthcare institutions or legal advisors in NSW.

Advance Care Plan Vs Advance Care Directive

An Advance Care Plan and an Advance Care Directive are both crucial tools in planning for future healthcare, but they serve slightly different purposes and have different levels of legal standing. Here’s a breakdown of the differences:

FeatureAdvance Care PlanAdvance Care Directive
PurposeOutlines broad preferences for future care, reflecting values and beliefs.Provides specific instructions about medical treatment preferences.
Legal StatusNot legally binding. Serves as a guide for decision-making.Legally binding to an extent; healthcare providers should make all reasonable efforts to uphold your wishes as expressed in your ACD.
ContentMay include general wishes, comfort measures, and living arrangements.Contains specific instructions on accepting or refusing medical treatment.
FlexibilityBroad and flexible, covering a wide range of preferences.More focused and specific, particularly regarding medical interventions.
FormalityGenerally informal and can be created without specific legal procedures.Often requires formalities like witnessing and clear understanding acknowledgments.
This table outlines the key distinctions between the two types of documents to help understand their roles in healthcare planning.

Why should you create an Advance Care Directive with Justice Family Lawyers?

Take control of your future medical care and ensure your wishes are respected with an Advance Care Directive.

At Justice Family Lawyers, we understand the importance of your healthcare preferences and the peace of mind that comes from having a clear plan.

Let our compassionate and experienced team guide you through the process, ensuring your directive is legally sound and tailored to your wishes. Secure your peace of mind today with Justice Family Lawyers.