An Advance Health Directive is a document that contains your decisions about future treatment. Treatment includes medical, surgical and dental treatment and other health care. You can make an Advance Health Directive in which you either provide consent, or refuse consent, to future treatment.
Why prepare an Advance Health Directive?
Some people, perhaps because of a personal experience, religious beliefs or advice from loved ones, feel it is important to specify the treatments they want, or do not want, to receive in the future. However, you don’t have to prepare an Advance Health Directive. Each person should decide whether completing an Advance Health Directive is right for them or not.
What if I don’t make an Advance Health Directive?
If you have chosen not to make an Advance Health Directive, a treatment decision will be made on your behalf in the event that you are unable to make the treatment decision for yourself. The treatment decision will be made by (in the following order of priority) your Enduring Guardian (if you have appointed one), your Guardian (if one has been appointed for you), or by a person responsible for you (such as your spouse, parent, child, sibling or unpaid carer).
When will my Advance Health Directive come into effect?
An Advance Health Directive comes into effect only if you are unable to make reasonable judgments about a treatment decision at the time that the treatment is required. In these circumstances, the Advance Health Directive acts as your ‘voice’.
Is there a time limit from when the form is signed to when the directive will be acted upon?
Your Advance Health Directive has no time limit and only comes into effect if you are unable to make reasonable judgements about the treatment at the time that the treatment is required.
Who can make an Advance Health Directive?
You may make an Advance Health Directive if you are at least 18 years of age and have full legal capacity. You have full legal capacity if you are capable of understanding the nature and effect of your Advance Health Directive. You may lack full legal capacity if your decision making is impaired, for example, by reason of illness, disease or injury, or the effects of medication, drugs or alcohol.
If you have any doubts about your capacity to make an effective Advance Health Directive, you should ask your doctor for an assessment.
Are there any age limits?
Yes. You may only make an Advance Health Directive if you are at least 18 years of age.
I am not able to sign my Advance Health Directive. Can someone else sign on my behalf?
Yes. If you are incapable of signing (or writing) your Advance Health Directive, someone may sign the Advance Health Directive at your direction. If someone signs the Advance Health Directive at your direction, they are not able to be one of the witnesses. Having someone sign the Advance Health Directive at your direction is different from them making the Advance Health Directive on your behalf (which is not permitted).
Can my Guardian or Enduring Guardian make an Advance Health Directive for me?
No, it is not possible for another person to make an Advance Health Directive on your behalf.
Am I required to discuss my Advance Health Directive with my doctor before signing it?
No, although you are encouraged to do so.
Am I required to discuss my Advance Health Directive with a lawyer before signing it?
No, although it is open to you to do so.
If I want to change my Advance Health Directive can I amend my current document?
Rather than amending your Advance Health Directive, it is preferable for you to complete a new Advance Health Directive, making sure that you comply with the witnessing requirements.
Can I be forced to sign an Advance Health Directive against my will?
A treatment decision contained in an Advance Health Directive which was not made voluntarily or which was made as a result of an inducement or coercion will be invalid.
In circumstances where it is suspected that an Advance Health Directive was not made voluntarily or was influenced by inducement or coercion, it would be appropriate to make an application to the State Administrative Tribunal for a determination of (in) validity.
What do I do with my completed Advance Health Directive?
Keep it in a safe place
Give a copy to your family, hospital, GP or other health professional
If you have an Enduring Guardian or Guardian you should give them a copy
If you are admitted to hospital or any other facility (for example an aged-care service) a copy should be provided to the service
You may also wish to carry a card or statement in your purse or wallet stating that you have made an Advance Health Directive and how a copy can be obtained
You may wish to consider purchasing a Medic Alert bracelet to inform any treating doctors that you have created an Advance Health Directive.
Can I register my Advance Health Directive?
At this stage it is not possible to register Advance Health Directives.
Will my Advance Health Directive be valid in other states and territories of Australia?
This will depend on the legislation in the particular state or territory.
Can an Advance Health Directive include permission regarding organ donation?
An Advance Health Directive is ineffective after death. Therefore, this is not the appropriate document on which to record your wishes with regards to organ donation.
Can I include a treatment decision to consent to some aspects of palliative care and not others in my Advance Health Directive?
Yes. An Advance Health Directive allows you to describe in very specific terms which treatments you would consent to (or refuse) in specific circumstances.
Does an Advance Health Directive permit euthanasia?
No, an Advance Health Directive cannot require or authorise a doctor or other health professional to take active steps to unnaturally end life.
How long will an Advance Health Directive be valid?
There is no set time period after which an Advance Health Directive will become elapse or expire. However, given that people can change their mind, if a long period of time has elapsed between the time that you made the Advance Health Directive and the time that the treatment decision is required, it may create some uncertainty. As such, it is recommended that you regularly review your Advance Health Directive to ensure that it reflects your current wishes.
What is the difference between a living will and an Advance Health Directive?
Under the common (or judge made) law, it is possible to make a “living will”. This is a general term for a written statement made in advance regarding the person’s wishes with respect to future treatment.
An AHD is a specific type of “living will” which is recognised by legislation. The Act enshrines the enforceability of the AHD, subject to certain safeguards, and provides protections for health professionals who take treatment actions in good faith.
If you have doubts about the validity of a “living will”, or the person has made both a “living will” and an AHD and they are inconsistent with each other, it is recommended that you obtain legal advice.
If by chance you find some error of law or fact in any Net Lawman information page, do please tell us. We should also welcome your suggestions for new subjects for information pages. These notes:
Do not provide a complete or authoritative statement of the law;
Do not constitute legal advice by Net Lawman;
Do not create a contractual relationship;
Do not form part of any other advice, whether paid or free.
