Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
Making a Living Will
If you or your partner are looking at Estate Planning, you may have been advised to think about making a living will.
In NSW, a living will is also known as an Advance Care Directive. It is a document (or conversation) that details what medical care you would like to receive should you become unwell and are unable to express your medical decisions.
Depending on where you live, different state laws apply when creating an Advance Care Directive.
What Is Included in An Advance Care Directive?
When making a living will, or advance care directive, several things should be included. You can start by considering your values and what will be important to you should you become ill and unable to make health care decisions for yourself. This may include:
- What types of care you would accept and refuse
- Where you would like to be cared for should you become incapacitated
- Who you would like to make decisions on your behalf, should you become unable to do so for yourself. This is also known as appointing an enduring guardian.
The most common instructions described in an ADC relate to circumstances in which you would refuse resuscitation (DNR) or would choose to have your life support turned off.
Once you have thought about your wishes, you should then sit down and discuss them with your family, friends, and health professionals. You should also think about obtaining legal advice from a trusted law firm.
Making an Advance Care Directive in NSW
Making an Advance Care Directive in NSW differs slightly to the laws for other states.
Unlike other states, in NSW, an ADC can be spoken or written and can still be enforceable whether it is signed or not. However, having a written signed document is advisable if you want your wishes to be recorded and respected should the time come.
To make a living will, you can:
- Write a letter or statement that details your medical wishes
- Have a conversation with someone you know and trust, letting them know your wishes
If your advance care directive is deemed to be legally valid, medical professionals and family members cannot override your wishes.
An Advance Care Directive is considered to be valid if:
- The person writing it had testamentary capacity at the time
- It clearly specifies the person’s wishes about specific treatment options and choices
- It applies to the medical situation the person is currently in
Appointing an Enduring Guardian
Appointing an enduring guardian is something that many people overlook when planning for their future. While estate planning, people tend to focus on selecting the person who will act as power of attorney over their business affairs. In doing so, they often neglect to appoint someone to look after their medical affairs. Such an appointment is known as an enduring guardian, and they make lifestyle, health, and medical decisions should you become unable to do so for yourself.
Appointing an enduring guardian, is separate to creating a living will. It will only come into effect should you lose capacity, and only for the period in which you are incapacitated.
Why Is An Advance Care Directive Important?
Creating an Advance Care Directive is important for several reasons. Thinking about your future health can be confronting for both you and your loved ones. Having these discussions ahead of time ensures your medical wishes are respected and takes the pressure off family and friends having to make difficult decisions.