Creating and Advising NSW Seniors on Advanced Care Directives

Advanced Care Directives in NSW

An Advance Care Directive is a written statement regarding your wishes for your future health care. It is used when you have a serious illness or injury and are unable to make a decision about the medical treatment you are to receive. It has important legal consequences and should only be signed after consultation with your doctor, your family and after obtaining legal advice.

A Directive should be prepared in conjunction with your other important legal documents such as: an Enduring Guardianship Appointment, your Will and Power of Attorney.

Advanced Care Directive for NSW Seniors

We are able to assist by:

  • Advising what to include in a Directive.
  • Preparing a Directive for you.
  • Reviewing your Will and other important legal documents to ensure that they do not conflict with your Directive



Advanced Care Directives Explained

Often referred to as a ‘Living Will’ an Advance Care Directive (ACD), is a document created by you about your healthcare wishes. It is used for future decision making if you are no longer able to make and communicate your own healthcare decisions. Having an ACD will make it easier for your loved ones and health staff to make important decisions on your behalf. The directive can contain all your needs, values and preferences for your future care and details of a substitute decision-maker.

What should an Advanced Care Directive include?

An adult with decision-making capacity, can document their preferences for care, values and/or appoint a substitute decision-maker if they wish. An ACD must comply with legislation, common law or policy by including statements that support quality palliative and end of life care. You are able to outline your instructions on emergency treatment or severe clinical deterioration (e.g. not for resuscitation).

Your Advance Care Directive can include one or more of the following;

  • A statement confirming that you want to make an advance directive and your reasons for doing so
  • the name of the person you would like to be your substitute decision-maker. In NSW, the substitute decision-maker appointed by you is an Enduring Guardian (you are able to choose one or more adults in this role).
  • details of what is important to you, such as your values, quality of life, goals and or preferred outcomes. For example, you may prefer to receive palliative care at home (if possible) rather than in a clinical, hospice environment.
  • whether or not you want to appoint an attorney
  • the medical treatments and care you would like or would refuse if you have a life-threatening illness or injury. This is for both physical and/or mental conditions. For example, you may not want to have a blood transfusion or chemotherapy treatments under any circumstances.
  • information around any existing health conditions or allergies
  • religious, spiritual or cultural beliefs that might affect your health care
  • a statement advising that this directive is to be binding on your treating doctor
  • it is common for an ACD to include details regarding your organ donation status


How Is An ACD Prepared?

Before the creation of an ACD, it is recommended that you have discussed your health care wishes with your family and close friends and perhaps your GP too (although it is not compulsory). You may want to discuss your current health situation with your GP to help you think about the treatments you would want to have and ones which you would refuse (for example, a pain management plan).

After you have given it some thought, your health care instructions are noted in an Advanced Care Directive.
Next, your ACD will include your Enduring Guardian(s) who will make health decisions for you if you are unable to do so. Remember that your Enduring Guardian must act in accordance with any lawful directions contained in the ACD. They must make the decision they believe you would make if you were able to do this yourself. It is, for this reason, we advise of talking to your Enduring Guardian about what is important to you and any preferences you have.

Our team at Joseph Trimarchi and Associates will be able to assist with the right forms and resources you need to make a valid ACD and will carefully guide you through the process involved.

Can My Will Conflict With My ACD?

An Advanced Care Directive is not a Will. An ACD cannot be used to make financial or legal decisions. An ACD empowers you to make clear, legal arrangements for your future health care, end of life, including preferred living arrangements. Your substitute decision-maker (Enduring Guardian), is legally bound to follow the instructions on your ACD.

Your Enduring Guardian(s) is not able to make financial decisions on your behalf. For this reason, it is recommended that you appoint an Enduring Power of Attorney (EPA) to make the decisions about your future finances and legal matters.

An EPA is only able to manage financial affairs on your behalf while you are alive. It is therefore important that you have an ADC, an EPA and a Will. Our legal team will be able to ensure that there is no conflict of interest between your ACD, your EPA, and your Will or other legally binding agreements.

How is an Advanced Care Directive different to an Enduring Guardianship?

An Enduring Guardianship is a legal appointment of a Guardian you chose to be a substitute decision-maker when you have lost capacity. This person may be entitled to decide where you might live, make arrangements to your health care, personal services and medical and dental treatment. The Enduring Guardianship is a different document to an Advance Care Directive.

An ACD is a voluntary statement or a decision you can make while you have the capacity (rather than by your Enduring Guardian or any other Person Responsible for you), as to the types of healthcare arrangements and procedures you will accept and will not accept.

Who will make a medical decision for me if I’ve lost capacity and I do not have an ACD or an Enduring Guardianship?

There are laws that govern the treatment of adults who have lost capacity and do not have an ACD or an Enduring Guardianship in place. Section 37 of the Guardianship Act (NSW) allows medical or dental treatment to be permissible without a person’s consent if the doctor or dentist considers the treatment is needed as a matter of urgency to save the person’s life, or to prevent serious, long term health damage.

It is also possible for minor treatment to be carried out without consent. For example, if there is no Person Responsible, or they’re uncontactable, or they refuse to make a decision for whatever reason. Without an emergency, doctors and dentists will need to authorise consent from their patient or the patient’s Person Responsible prior to any proposed treatment.

What do you mean by ‘Persons Responsible’ for my medical health?

A ‘Person Responsible’ is someone who is legally able to make medical and dental decisions on behalf of another person who lacks the capacity to give their own consent to treatment. Section 33A of the Guardianship Act (NSW) lists a hierarchy (in descending order) of Persons Responsible for the medial and dental treatment of another individual. In order, the people are;

  1. The person’s Enduring Guardian
  2. The person’s spouse
  3. The person’s carer
  4. A close friend or relative of the person

Please note that if these people listed above are not available, or refuse to make a decision, then the NSW Civil and Administrative Tribunal will be allowed to make the decision.

Under what conditions is an ACD valid and enforceable?

When an ACD is valid, it must be followed. Therefore, for an ACD to come into effect, it must have met the following criteria;

  1.  you had capacity when you made it.
  2.  it was made voluntarily without force or coercion.
  3.  it has clear and specific details about treatments that you will accept or refuse.
  4.  it is current and applicable to your present situation .

What is meant by ‘Capacity’?

Capacity means that you have cognitive function to understand the facts and choices involved, can weigh up the consequences and can communicate the decision in some form.

Will my ACD apply in other States and Territories?

If an ACD is valid, it will apply in other places in Australia. However, there may be some limitations and additional requirements needed. Similar to this, an Enduring Guardian will usually apply, but there is variation in the laws within Australia. If you are permanently moving state or territory, it is recommended that you update your documentation. Our team at Joseph Trimarchi & Associates will be able to advise on any implications to interstate or territory movements.

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