Getting Things in Order

Advance Care Directives

From 1 July 2014, South Australians have been able to record their instructions and wishes for future health care and living arrangements in a new document, known as an “Advance Care Directive”.  The Advance Care Directive has replaced three earlier documents, namely, the Enduring Power of Guardianship, the Medical Power of Attorney, and the Anticipatory Direction.  However, any of these earlier documents executed before 1 July 2014 continue to have legal effect.

Matters dealt with under an Advance Care Directive

Under an Advance Care Directive, a person is able to:

  • specify their instructions, preferences and wishes concerning their future health care, living arrangements and other personal matters; and
  • appoint one or more “Substitute Decision-Makers” to make decisions about health care, residential and accommodation arrangements, and personal affairs in the event of becoming unable to make or communicate those decisions.

An Advance Care Directive does not give the Substitute Decision-Maker any power over property or financial matters.  (These are instead dealt with under an Enduring Power of Attorney).

Validity

An Advance Care Directive becomes valid when it is witnessed in accordance with the Advance Care Directives Act 2013.  One of the main requirements is that the person giving the directive must sign the form in the presence of a “suitable witness”, such as a Justice of the Peace, lawyer, Minister of Religion, or bank officer with five years or more continuous service, together with a range of other persons listed in the Advance Care Directives Regulations 2014.

Effective from 28 May 2015, however, the Regulations impose a new (and slightly unusual) requirement – each Substitute Decision-Maker must now sign ahead of the person giving the directive.  If a Substitute Decision-Maker signs last, the Advance Care Directive will not be taken to have been witnessed in accordance with the Regulations.  The validity of the Advance Care Directive would therefore be in doubt.

Other requirements

An Advance Care Directive can only be made by an adult.  He or she must be competent to give the directive, that is, he or she must understand what an Advance Care Directive is and the consequences of making an Advance Care Directive.

Before signing and accepting an appointment, the Substitute Decision-Maker is required under the Regulations to have read an information sheet, Substitute Decision-Maker Guidelines.

Under the Regulations, the person giving the directive is required to read an information sheet, Advance Care Directive Information Statement.  Apart from ensuring that the relevant person has received and read the Advance Care Directive Information Statement, the “suitable witness” must certify that the person appeared to understand the Statement and that the person did not appear to be acting under any form of duress or coercion.

When an Advance Care Directive is used

A Substitute Decision-Maker or health practitioner can act under an Advance Care Directive if the person who gave the directive:

  • is required to make a particular decision; and
  • has impaired decision-making capacity, whether temporarily or permanently, in relation to that decision.

Observations

Although there are obvious advantages in making an Advance Care Directive, it seems a backward step that the State Government should now insist on the Substitute Decision-Maker signing first.  This is likely to cause delays for many of the persons giving a directive who, having arranged for the Advance Care Directive to be prepared, must then await the return of the signed form from each of the Substitute Decision-Makers before finally making arrangements for it to be witnessed in the presence of a suitable witness.

There seems a danger that, in order to save time, many persons will make an inappropriate choice of Substitute Decision-Maker rather than choosing a more suitable family member or friend who happens to be living further afield.  A further problem is that, being used to dealing with the conventional order in which documents are signed, the suitable witness may not be alert to the fact that the Substitute Decision-Makers are required to sign first.

For more information, please contact:
Mark Minarelli

Mark Minarelli
Director
p.   +61 8 8124 1808
e.  Email me


Director

This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this report, or what it means for you, your business or your clients' businesses, please feel free to contact us.

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