Imagine being in hospital unable to move or communicate following a serious medical event.
It is much easier for your family and loved ones to be sure they are making decisions consistent with your wishes provided they have been considered in advance. Today Australians are living longer and statistically some of us will face a drawn-out decline in our health, so being clear about your future healthcare plans is now more important than ever before.
This is where an advanced care directives or a “living will” can help.
What is an advanced care directive?
You might have heard of something called a “living will”, or as they’re officially called, advanced care directives (ACD).
An ACD describes what treatment you would or would not consent to have, in the event of a life threatening illness or injury. The most common instructions relate to circumstances in which you would refuse resuscitation (commonly called ‘Do Not Resuscitate’).
ACDs are more than just a directive for the elderly on when to end life support. They are just as useful for younger victims of disease or accident.
Are they legally binding?
Living wills are not legally binding in NSW.
There is no absolute legal requirement that your doctors or your relatives must carry them out. However, a court will regard them as persuasive in the right circumstances. This means that if they are relatively current, clearly expressed, and appear to concur with what you have said while you were still of sound mind, they will be preferred to any other opinion unless there are very strong arguments to the contrary.
A living will may be of some use if you suspect your intentions might not be heeded if you become incapacitated. As well as keeping the document up-to-date, you should provide copies to your doctors, family and maybe a responsible friend.
Enduring Guardianship should also be used
While a living will is certainly better than nothing, appointing an enduring guardian is better still.
Living wills have become less common since appointment of an enduring guardian became possible under the Guardianship Act 1997.
This is because enduring guardians are empowered to make legally binding decisions.
An enduring guardian can make personal, health or lifestyle decisions on your behalf, in the event you are no longer physically or mentally capable of making them.
You can direct your guardian to follow your wishes, or impose conditions or limitations on what they can do. You can even create a number of guardians to make different decisions.
What are the requirements for an Enduring Guardianship?
The form is simple enough, although there are some legal restrictions, in particular that:
- You and your guardian have to be over eighteen,
- You signed a document before certain witnesses prescribed by the law,
- You had capacity when you wrote the document,
- Your guardian can’t be someone responsible for your medical treatment,
- It has specific details about treatments that you would accept or refuse,
- Were not influenced or pressured by anyone else when you wrote it
You cannot instruct your guardian to do something illegal and that includes euthanasia.
Conclusion
Given the lack of uniformity within and between States, there’s understandable confusion about the legal validity of a living will. It is still persuasive in the eyes of a court.
However, in addition to a living will it is sensible to have an Enduring Guardianship document set up, particularly if you are unwell at a mature point in life.
No family member wants to be in a situation where no-one knows what you would have wanted and what if your family members disagree or don’t agree with your doctors?
If you want to have peace of mind and avoid these issues and you need assistance or advice on how to proceed please email us on [email protected], or phone us at Lismore on 02 6621 2481, Ballina on 02 6686 2522 or Byron Bay on 02 6680 8525.