Legal Documents Explained

Advance Care Document, Advance Care Plan, Advance Care Directive, Living Will. Are they all the same?

An Advance Care Directive is a document that outlines a person’s choices for medical care they do or do not want, in the event they can no longer speak for themselves.

An Advance Care Plan is similar to a Directive but also includes the names of people you have chosen to make decisions on your behalf about the medical care you receive- in case you lose the ability to make or express those decisions yourself. These people you choose are called your Substitute Decision Makers, Responsible Person(s) or  in the US-  your health proxies. In your Advance Care Plan it is a good idea to include your values, as this will guide others to make better decisions about you. You can refuse certain treatments in your plan, and also include comments such as what sort of life or death you want to have, what a good day would look like for you, and what a bad day would look like.

In addition:

  1. The person must be mentally competent
  2. They must complete it voluntarily (ie not under any coercion)
  3. They should consider their state of health now as well as in the future.
  4. The person must set out the medical treatment they want administered or refused, in different circumstances.

What are the Legal Requirements for an Advance Care Document in Australia?

In NSW:

Your Advance Care Plan does not need to be written to be valid- it may be a verbal agreement.

Your Advance Care Plan is legally enforceable and NSW Health practitioners must comply with it.

Administering treatment that a patient has refused in a valid advance care directive can be judged as a criminal assault or a      civil battery.

There is reciprocity which means if an advance care directive is written in another State, regardless of the laws in the State in  which it was written, it will be honoured in NSW.

Although there is no requirement for an advance care plan to be written, signed and witnessed, it is likely to be more readily followed if there is something electronic or written down, that has been seen as well as discussed in advance with others, and that names  your Responsible Person(s) or Substitute Decision Maker(s) clearly.  A signature and a witness may attest to your mental competency at the time of signing and may make your plan more readily followed.

In general:

  1. The person must be mentally competent
  2. They must complete it voluntarily (ie not under any coercion)
  3. They should consider their state of health now as well as in the future.
  4. The person must set out the medical treatment they want administered or refused, in different circumstances.

In other states the laws and forms vary. However the more valid your Advance Care Plan- dated, written, discussed, shared, with Substitute Decision Makers named and known – with a witnessed signature for good measure- the more likely it is to be accepted interstate.

In NSW, ACT, NT, SA  TAS and WA you can write your own Advance Care Plan and while there are no formal requirements such as signatures, dates, witnesses or particular wording, it is likely to be more readily followed if there is something electronically accessible or written down, that has been seen as well as discussed in advance with others, and that names  your Responsible Person(s) or Substitute Decision Maker(s) clearly.  A signature and a witness may attest to your mental competency at the time of signing and may make your plan more readily followed.

In Victoria, a person has a choice- you can make a common law Advance Directive that refuses treatment, and/or a statutory Advance Directive.

In Queensland, only statutory Advance Directives are legally binding. It needs to be signed by the person, or a person instructed on behalf of the person. The instructed person must be over 18 and not a witness or the person’s enduring power of attorney. It also needs to be witnessed (visit the Office of the Public Guardian Queensland for further information about who can be a witness and witnessing requirements), as well as signed and dated by a health professional who is not the witness or connected to the person. The health professional must certify that the person appeared to have capacity.

Read more about laws in Queensland here. 

Read more about laws in Victoria  here

Read more about laws around Australia here. 

There is scope for an Advance Directive made in one State or Territory to be recognised and effective in another State or Territory but the law differs between each State and Territory. Therefore to ensure your Advance Care Plan is more likely to be respected in another state, no matter where you live  we recommend you:

Have a digital or written copy you can show.

Make sure others see it and discuss it and have a copy.

Name your Substitute Decision Maker(s) or Responsible Person(s) clearly on the form.

Add a signature and witness it.

 

It is simple to add a signature and witness to the front of your Touchstone Life Care Advance Care plan so it is more likely for your plan to be followed By a health professional.

We also recommend you upload the document to your online My Health Record, which can be done from the dashboard of your Touchstone Life Care dashboard or through the MyGov website.

 

What is A Power of Attorney? 

  • This is a legal document that appoints someone else to act on your behalf for financial and administrative affairs if you are sick, overseas or unable to look after your own affairs.
  • It stops having effect if you, the person who appointed someone else to manage your affairs, lose your mental capacity.
  • A Power of Attorney is invalid after death.

What Is An Enduring Power of Attorney?

  • Similar to a Power of Attorney, this is a document that appoints someone else to act on your behalf, but unlike a Power of Attorney it continues beyond the loss of capacity, ie if the person who signed loses their mental capacity, the Enduring Power of Attorney continues.
  • It is used for financial and administrative affairs if you are sick, overseas or unable to look after your own affairs.

Enduring Guardianship

  • An Enduring Guardian is a person appointed to act on your behalf in matters of medical treatment and quality of life decisions. There is no directive from you to this person, or others, about your wishes.
  • Where there is both an Advance Care Plan and an Enduring Guardianship, the wishes expressed in the Advance Care Plan must be followed by the Enduring Guardian.