Wills & Estate Planning Fact Sheet
Living Wills in NSW
Sandra Rocha, Senior Associate October 2009
‘Living Will’, ‘Anticipatory Direction’ and ‘Advance Care Directive’ are all general terms for written statements specifying a person’s instructions regarding the nature and extent of medical care that the person wishes to receive once that person has lost the capacity to give instructions regarding his or her medical treatment. This article uses the term Advance Care Directive (ACD), as this is the term generally used by the medical profession and by government agencies in NSW.
New South Wales
There are two possible forms which an ACD may take in NSW. It can form a part of an Appointment of Enduring Guardian or it can be an individual, less formal document. In the first case, the instructions regarding medical care act as constraints to the authority of the guardian, particularly if the instructions are detailed and explicit. However, if a conflict exists between an ACD and enduring guardianship, the guardian is entitled to make decisions which disregard the instructions given in the ACD.
An Advance Care Directive: • Is generally prepared by a person who is expecting a loss of capcity to make decisions or to give instructions regarding medical treatment • Specifies the types of medical treatment that the person would like to receive in the future, after the loss of the capacity to give instructions • Specifies the types of medical treatment that the person would like to have withheld after the loss of the capacity to give instructions The NSW Health Department and the medical profession both support the use of informal Advance Care Directives. NSW Health’s policy on the use of Advance Care Directives can be downloaded from the NSW Health website. With the exception of ACDs forming part of an Appointment of Enduring Guardian, there is no required format for an ACD in NSW. A person who wants to create an ACD in NSW can simply write their instructions down. However, recently a number of organisations have developed standard forms for creating an ACD. The use of such forms is becoming increasingly widespread. Further information and standard forms for creating ACDs can be obtained from the following websites: http://www.health.nsw.gov.au/policies/gl/2005/GL2005_056.html http://www.communitylaw.org.au/mentalhealth/cb_pages/images/ mhlcadvancedirective.pdf www.advancecaredirectives.org.au
Variations between Australian states
In South Australia, Queensland and the Northern Territory, an ACD is a legally binding document. In Victoria a person can record his or her wishes in three ways - by means of an Enduring Power of Attorney (Medical Treatment), by completing a Refusal of Treatment Certificate (which is legally binding) or by creating an informal ACD. While Tasmania, Western Australia and NSW do not have legislation regarding ACDs, they are still valid under common law. In NSW in particular, ACDs have formal government endorsement and are widely recognised within the medical profession. This article examines the legal standing of ACDs in NSW.
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In its guidelines, NSW Health has set down four criteria which should be satisfied in order for the ACD to have sufficient authority to be followed:
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This article is not legal advice and the views and comments are of general nature only. This document is not to be relied upon in substitution for detailed legal advice.
Specifity
The Advance Care Directive should be clear and specific enough to guide clinical care by including details such as who to contact for advice and who not to contact, as well as the types of medical treatment to be refused or consented to, for example parenteral feeding, artificial ventilation, cardiopulmonary resuscitation etc. However, the ACD cannot prohibit basic care, nor can it endorse assisted suicide. The ACD should take into account both medical conditions existing at the time the ACD is made and future anticipated conditions (including catastrophic injury).
What are the advantages of an ACD?
• Encourages communication about end-of-life decisions • Gives direction to treatment decisions when a person is no longer able to decide for themselves • Ensures that a person’s wishes are being met and their autonomy is respected Despite the absence of corresponding legislation, the use of ACDs in NSW is becoming more widespread and they seem generally to be adhered to by medical professionals.
Currency
An ACD should be kept up to date. People should be encouraged to review their directives periodically, for example once a year, after an illness, or with a change in health as treatment preferences may change accordingly.
For further information please contact: Sandra Rocha Senior Associate Wills & Estate Planning
Phone: + 61 2 9233 5544 Email: smr@swaab.com.au
Competence
The person must have been competent to make their own health care decisions when the advance directive was drafted.
Witnessing
It is not essential to have an ACD witnessed. It is, however, recommended because it offers some protection against forgery, may allay concerns about undue influence in the expressed treatment choices and allows for later follow-up if doubts are raised about the person’s competence at the time of drafting.
NSW Health guidelines also specify that failure to comply with an ACD that meets the stated criteria may be considered an assault and battery under common law. Civil liability may also ensue.
Where should the ACD be kept and by whom?
The person to be responsible for care of the person making the ACD should be given a copy of it and of any revisions it receives, along with the GP, any other doctors involved and other key family members. An ACD should be brought to the attention of new treating clinicians as soon as possible. The ACD should be included in a prominent position in the medical history.