In Wills & Estates

The new Advanced Care Directive (ACD), introduced on 1 July 2014, enables you (if you’re over 18 and of sound mind) to appoint one or more substitute decision-makers to make decisions regarding your future care, including your health care.

It is important to note that your Advanced Care Directive will only become operative if your decision-making capacity is impaired and you are unable to make your own decisions (whether temporarily or permanently). For example the document will come into operation if you suffer from dementia, are in a coma or acquire a brain injury. While it is not fun to contemplate, it is wise to have an ACD in place so that those you love have authority to step in if they’re needed.

People often use an ACD to give direction in relation to health care, including directions about the withdrawal of life support in certain circumstances. These directions must be followed by your substitute decision-maker and your health practitioner. They will not be able to give health care treatment that is contrary to your directions.

Before 1 July 2014, people managed these issues by preparing other documents: an Enduring Power of Guardianship, a Medical Power of attorney and an Anticipatory Direction. These documents have all been replaced by the Advanced Care Directive. While people are no longer able to enter into an Enduring Power of Guardianship, a Medical Power of attorney or an Anticipatory Direction, those documents executed prior to 1 July 2014 will remain valid unless revoked or overturned by the Guardianship Board.

You can complete an ACD yourself using a ‘do it yourself kit’. We urge caution. Directions to substitute decision-makers, if not properly considered, may cause significant concern or confusion to the person trying to decipher those instructions in the future. It is anticipated that a number of ACDs that are not executed properly or that contain vague or ambiguous directions for the substitute decision-maker will end up before the Guardianship Board for interpretation or challenge. We always recommend that people obtain legal advice to ensure that a lawyer properly drafts and executes the ACD.

If you need advice in this important area of wills and estate planning, please contact Emma Wilkinson or any other members of our Wills and Estates team on 8231 1110.

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