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Home | Wills & Estate Planning | Advance Care Directives

A Substitute Decision-Maker

It is important to consider who would make medical or lifestyle decisions if you were no longer capable of doing so yourself.

Preparing an advance care directive with the assistance of one of our lawyers brings peace of mind to you and your family, knowing that you have a legal and valid document in place that nominates people you trust to act on your behalf. It can also include your wishes and directions about your future lifestyle, health care and other personal matters.

FAQ

What is an advance care directive?

What is an advance care directive?

An advance care directive is a legal document that allows you to express your wishes regarding future medical and lifestyle decisions, and to nominate persons to make those decisions for you if you are incapable of making them yourself.

In an advance care directive you can:

  • choose one or more persons to make decisions for you when you have impaired decision-making capacity;
  • give directions and express wishes about healthcare, living arrangements and personal affairs;
  • specify outcomes or treatment you wish to avoid, such as life support or cardiopulmonary resuscitation;
  • express wishes taking into account your culture, background, history, and spiritual and religious beliefs.

Why should I have an advance care directive?

Why should I have an advance care directive?

An advance care directive allows you to record your wishes in a legally-effective manner.

If you have not recorded your wishes, then your family and health practitioners will be in the dark as to what type of treatment, care and lifestyle you would like.

Your advance care directive assists others to make the best decisions for you.

Who can make an advance care directive?

Who can make an advance care directive?

Any competent person aged 18 years or over and who understands what an advance care directive is and the consequences of making one can prepare an advance care directive.

No one can make an advance care directive on behalf of another person. For example, no one can make an advance care directive for their parent or child.

When can it be used?

When can it be used?

A person appointed under an advance care directive is called a 'substitute decision-maker'.

Substitute decision-makers may only make decisions under the advance care directive if the person who appointed them has impaired decision-making capacity at the relevant time and in respect to the relevant decision.

'Impaired decision-making capacity' is defined in legislation, under section 7 of the Advance Care Directives Act 2013 (SA). It says that a person will be taken to have impaired decision making capacity in respect of a particular decision if they are not capable of:

  • understanding any information that may be relevant to the decision (including information relating to the consequences of making a particular decision); or
  • retaining such information; or
  • using such information in the course of making the decision; or
  • communicating his or her decision in any manner.

People can also specify in their advance care directive when they should be considered as having impaired decision-making capacity, and so if that requirement is satisfied, then the substitute decision-maker can also act.

Who can I name?

Who can I name?

You can name up to three persons aged 18 years or over as the persons who will make decisions on your behalf. These people are called your 'substitute decision-makers'.

You can specify how you want them to act. For example, you may want only one person to act at a time, or any one or more persons to act, or all of them to act jointly.

You cannot name any person who is:

  • not competent;
  • your health practitioner; or
  • your paid carer.

Can the person I appoint make financial and legal decisions for me?

Can the person I appoint make financial and legal decisions for me?

No, not unless you have also appointed them as your attorney under your power of attorney.

An advance care directive cannot be used to make a power of attorney.

Can I cancel my advance care directive?

Can I cancel my advance care directive?

Any person who is competent and understands the consequences of cancelling their advance care directive may cancel it at any time. You should contact us to prepare the relevant document.

Persons who are not competent or cannot understand the consequences of cancelling their advance care directive may be able to cancel them upon application to the South Australian Civil and Administrative Tribunal ("SACAT").

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