Advance Care Directives (Living Will)
Advance Care Directives also commonly known as a living will, are directions about your future healthcare if you become incapacitated and unable to make decisions about your treatment. It can outline your values and preferences when it comes to your future care. A valid Advance Care Directive is recognised under common law and has been upheld by the courts. It must be followed by the family members and health professionals if:
- It was written when you had mental capacity.
- It provides details about the treatments you will or will not accept.
- It applies to the situation you are in.
Advanced Care Directives can be discussed with your family and health professionals, to ensure that you are making the best decisions for your future. However, it is a good idea to have your Advanced Care Directives written down. We recommend that you state your full name, date of birth, address and that the document is signed by you. The document can be as simple as a letter or a template for Advanced Care Directives. Some people like to have their Advanced Care Directives signed by a witness or attached to their enduring guardianship document.
The enduring guardianship is a legally recognised document that appoints a person/s to make health and living decisions on your behalf if you lose the capacity to make decisions for yourself. A lawyer can help you legally appoint an enduring guardian. If you have not appointed an enduring guardian, a person who has a continuing and close relationship with you may be appointed to be a decision-maker. This could include a spouse, an unpaid carer or friend or relative that has a close relationship and knows your wishes. However, it is good to also be aware that if you do not have an appointed enduring guardian or a close person to make your decisions, then the NSW Civil and Administrative Tribunal (NCAT) can appoint a guardian on your behalf. This could be a person who works for the NSW Guardian and Trustee, and not a person that you know.
Adding your Advance Care Directives to your enduring guardianship may eliminate any doubt or dispute as to whether you had capacity when you made your Advanced Care Directives. It also gives your enduring guardian or decision-maker peace that they are making the right decisions about your medical care.
NSW Health have created a document that outlines the process of Making an Advanced Care Directive. It is a useful tool that explains the importance of an Advanced Care Directives and what you need to consider when making decisions about your future healthcare.
In NSW any adult who has the mental capacity can make an Advanced Care Directive. It is particularly important if you:
- Are reaching the end of life or getting older
- Have a chronic illness or disability
- Have multiple medical conditions
- In the early stages of a cognitive condition.
Contact us for a free thirty-minute initial consultation with a lawyer about Advance Care Directives and Enduring Guardianships.
Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.