Imagine being in hospital following a serious illness or accident, unable to communicate or make decisions about your medical treatment. Without clear instructions about your wishes, your family may face difficult decisions at an already stressful time.
Advance care planning allows you to consider your future healthcare preferences before you become unable to communicate them. It can help your loved ones and healthcare professionals understand what matters to you and the treatment you would or would not want to receive.
One way to document these preferences is through an Advance Care Directive (ACD), sometimes called a living will. You may also wish to appoint an Enduring Guardian to make personal, health and lifestyle decisions on your behalf if you lose the capacity to make them yourself.
Although these documents serve different purposes, both can form an important part of planning for the future.
What Is an Advance Care Directive?
An Advance Care Directive is a document that records your preferences about future medical treatment and healthcare. It explains what you would want to happen if you became seriously ill or injured and could no longer make or communicate decisions about your treatment.
Your directive may include instructions about:
- Medical treatments you would accept or refuse.
- Life-sustaining treatments, including ventilation and resuscitation.
- Palliative care and end-of-life treatment preferences.
- Your values, beliefs and priorities when making healthcare decisions.
- The circumstances in which you would not want certain medical interventions.
For example, you may wish to document whether you would accept cardiopulmonary resuscitation (CPR) or other life-sustaining treatments in particular circumstances.
An Advance Care Directive is not only relevant to older people or those with an existing medical condition. An unexpected accident or illness can affect anyone, regardless of age. Planning ahead gives you an opportunity to communicate your preferences while you can still make decisions for yourself.
In NSW, there is no single mandatory form for making an Advance Care Directive. It can be spoken or written, although a written and signed document is generally recommended because it provides a clear record of your wishes.
For more information, visit NSW Health’s Advance Care Planning resources.
Are Advance Care Directives Legally Binding in NSW?
Yes. An Advance Care Directive can be legally binding in NSW under common law, provided it meets the requirements for validity.
There is no specific NSW legislation that establishes a mandatory Advance Care Directive form. However, a valid directive must generally satisfy several important conditions:
- Decision-making capacity: You must have the capacity to understand the decisions you are making and the consequences of your instructions when you create the directive.
- Voluntary decision: You must make the directive freely, without pressure, coercion or influence from another person.
- Clear instructions: Your preferences must clearly identify the medical treatments you would accept or refuse.
- Relevant circumstances: The instructions must apply to the medical circumstances in which the directive is being considered.
- Current wishes: The directive must not have been revoked or replaced by a later expression of your wishes.
If an Advance Care Directive is valid and applies to the circumstances, healthcare professionals and substitute decision-makers must respect it. A person appointed to make decisions on your behalf cannot simply disregard a valid directive because they disagree with your wishes.
It is important to understand that an Advance Care Directive can communicate your consent to or refusal of treatment. However, requesting a particular treatment does not necessarily require a healthcare professional to provide it if it is not clinically appropriate or otherwise legally available.
To help ensure your wishes are understood, consider discussing your directive with your GP or treating medical team. You should also provide copies to your family, relevant healthcare professionals and anyone who may need to refer to it.
You can find further information about making a valid directive through Service NSW.
What Is an Enduring Guardian?
An Enduring Guardian is someone you legally appoint to make personal, health and lifestyle decisions on your behalf if you lose the capacity to make those decisions yourself.
In NSW, an Enduring Guardian is appointed under the Guardianship Act 1987 (NSW).
Depending on the functions you give them, your Enduring Guardian may be able to make decisions about:
- Where you live and the type of accommodation you receive.
- What medical and dental treatment you receive.
- Which healthcare and support services you access.
- Other personal and lifestyle matters covered by their appointment.
You can also place conditions or limitations on the authority you give your Enduring Guardian. This allows you to specify how certain decisions should be made and which responsibilities you want them to have.
Your Enduring Guardian only begins exercising their authority when you can no longer make the relevant personal or lifestyle decisions yourself. If you regain the capacity to make those decisions, you can make them independently again.
What Is the Difference Between an Advance Care Directive and an Enduring Guardian?
Although both arrangements relate to future healthcare decisions, they serve different purposes.
An Advance Care Directive records your own instructions about the treatment you would accept or refuse. An Enduring Guardian, on the other hand, is a person you appoint to make certain personal, health and lifestyle decisions if you lose decision-making capacity.
| Advance Care Directive | Enduring Guardian |
|---|---|
| Records your preferences about future medical treatment and care. | Appoints someone to make personal, health and lifestyle decisions on your behalf. |
| Must reflect your own wishes and be made while you have decision-making capacity. | Must be formally appointed while you have decision-making capacity. |
| Can be legally binding under NSW common law if valid. | Is a formal legal appointment under NSW guardianship legislation. |
| Guides healthcare professionals and substitute decision-makers about treatment you would accept or refuse. | Allows your appointed guardian to exercise the functions you have given them when you lose the relevant decision-making capacity. |
Having both documents can provide a more comprehensive approach to planning for your future. Your Advance Care Directive records your healthcare preferences, while your Enduring Guardian can make decisions within the authority you have granted them.
A valid Advance Care Directive must still be followed. An Enduring Guardian cannot override your valid treatment instructions simply because they would prefer a different outcome.
What Are the Requirements for Appointing an Enduring Guardian in NSW?
There are specific legal requirements for appointing an Enduring Guardian in NSW. These help ensure the appointment is made voluntarily and that everyone involved understands their responsibilities.
Generally, the requirements include:
- You must be at least 18 years old: You must also have the decision-making capacity to understand the nature and effect of the appointment.
- Your chosen guardian must be at least 18: They must be willing to accept the appointment and understand the responsibilities involved.
- The appointment must be properly documented: You must complete an Appointment of Enduring Guardian document in the required form.
- The document must be witnessed correctly: Your signature and your guardian’s acceptance must be witnessed by an eligible person, such as an Australian legal practitioner, an eligible Local Court registrar or an approved NSW Trustee and Guardian employee.
- The guardian must accept the appointment: The person you nominate must formally agree to take on the role.
- You must make the appointment voluntarily: You must understand the appointment and make it without pressure or coercion.
You can appoint more than one Enduring Guardian. Depending on how you structure the appointment, they may be required to make decisions jointly or may be authorised to act separately. You can also appoint an alternative guardian to step in if your original choice is unable to act.
There are also restrictions on who can be appointed. For example, a person who provides paid treatment, accommodation, support or care to you generally cannot be appointed, subject to certain exceptions.
It is important to choose someone you trust, who understands your values and is comfortable making potentially difficult decisions on your behalf.
For further guidance, see Legal Aid NSW’s information about Enduring Guardianship.
Can an Enduring Guardian Make Any Decision on Your Behalf?
No. An Enduring Guardian can only exercise the functions you have authorised in your appointment and must act within the relevant legal requirements.
For example, an Enduring Guardian cannot:
- Make financial decisions under an Enduring Guardianship appointment. These arrangements are generally dealt with through an Enduring Power of Attorney.
- Override a valid Advance Care Directive.
- Make decisions outside the functions and authority granted in the appointment.
- Direct healthcare professionals to provide treatment that is not legally or clinically available.
- Consent to voluntary assisted dying on your behalf or use an Enduring Guardianship appointment to request it.
An Enduring Guardian is responsible for making decisions within their authority, taking your known wishes, values and preferences into account.
Why Is Planning Ahead Important?
Planning ahead can help reduce uncertainty for your family and ensure your healthcare preferences are understood if you become unable to communicate them.
Without clear arrangements, your loved ones may be left trying to determine what you would have wanted. They may also face disagreements about treatment decisions or uncertainty about who has the authority to make them.
Preparing an Advance Care Directive and appointing an Enduring Guardian can help address these concerns. It gives you an opportunity to express your wishes, choose someone you trust and provide guidance for future decisions.
It is also important to review your arrangements from time to time. Your medical circumstances, personal preferences and relationships may change. If you update your Advance Care Directive, make sure your family and healthcare professionals have access to the latest version.
Frequently Asked Questions About Advance Care Directives and Enduring Guardianship
Do I Need a Lawyer to Make an Advance Care Directive in NSW?
You do not have to use a lawyer to make an Advance Care Directive in NSW. However, obtaining legal advice can help you understand the requirements for a valid directive and ensure your instructions are clear. It is also sensible to discuss your proposed treatment preferences with your doctor or healthcare team.
Can I Change or Cancel My Advance Care Directive?
Yes. You can change or revoke your Advance Care Directive while you have decision-making capacity. If you prepare a new directive, make sure you tell the relevant people and replace any older copies so your current wishes are clear.
When Does an Enduring Guardian Start Making Decisions?
An Enduring Guardian can begin exercising their authority when you are no longer able to make the relevant personal or lifestyle decisions yourself. If there is uncertainty about your capacity, a medical professional may be asked to assess your circumstances.
Is an Enduring Guardian the Same as an Enduring Power of Attorney?
No. An Enduring Guardian makes personal, health and lifestyle decisions within the authority granted to them. An Enduring Power of Attorney appoints someone to make financial and legal decisions on your behalf. These are separate legal appointments and serve different purposes.
Can My Family Override My Advance Care Directive?
No. If your Advance Care Directive is valid and applies to your circumstances, your family and substitute decision-makers cannot simply disregard your instructions. Healthcare professionals must also take the directive into account when making treatment decisions.
Get Legal Advice About Planning Ahead
Making decisions about your future healthcare and appointing someone to act on your behalf can be important steps in protecting your interests. However, it is essential to understand the legal requirements and ensure your documents accurately reflect your wishes.
At Somerville Laundry Lomax, we understand the importance of planning ahead and putting appropriate legal arrangements in place. Our team can provide guidance on relevant legal matters and help you understand your options.
If you would like advice about planning ahead, contact our team by emailing [email protected] or calling one of our offices:
- Lismore: 02 6621 2481
- Ballina: 02 6686 2522
- Byron Bay: 02 6680 8525
This article provides general information about Advance Care Directives and Enduring Guardianship in NSW. It is not legal or medical advice and should not be relied upon as a substitute for advice about your individual circumstances.