Advance Care Directives (ACDs) were introduced in South Australia by legislation in 2013 to replace and amalgamate three older documents about personal and medical wishes, Enduring Power of Guardian, Medical Power of Attorney and Anticipatory Direction. Other States and Territories have a similar document and ideally the document you prepare depends on where you live.

ACDs have three main components:

1. Appointing substitute decision maker(s) – including any order of appointment, how they should act if more than one, etc
2. Values and wishes – what you want, and want to avoid, for your care and dignity if you are unable to communicate this yourself
3. Binding refusals of health care – you can specifically refuse certain medical treatments in the circumstances you prescribe.

Each of these are optional. For example, you can make an ACD that just makes binding refusals of health care and appoints no one, or just appoint substituted decision makers, who know your wishes anyway.

ACDs are published in hard copy (usually available at a library) or on the internet, in a kit. The kit includes sample wording for various scenarios. The ACD regime was designed so that your wishes can be documented in ‘plain English’ and as such, it is not necessary to see a lawyer/solicitor to have them prepared. They can be contrasted from other estate planning documents like your will, in which it is highly recommended a lawyer is involved, so that you receive sound legal advice tailored to your circumstances, and expert drafting so that no beneficiary is disappointed, or has to incur significant legal costs and delays after you die.

When we meet with clients for estate or succession planning, we review your existing will, enduring power of attorney, advance care directive, superannuation and any trusts or other entities. We often recommend that clients could save some legal costs and prepare ACDs themselves, if they feel comfortable to do so. Other clients prefer that we prepare everything to have their affairs in order.

If you are preparing your own ACD, it is important to think about how a doctor or nurse might need to interpret your wishes. For example, if you say something like “I do not want any life-preserving treatment…”, then this could raise the question of whether that would mean you are refusing things like ordinary pain relief or fluids, which can preserve life.

Generally, when our estate planning clients prepare their own ACDs, we offer to witness them without charge, when they sign their other documents. If you do appoint a substituted decision maker, they must sign their acceptance before you execute the document. This is the opposite of a power of attorney, and can cause some logistical issues.

If you are considering an ACD as part of your estate planning, please contact us to discuss.