Put simply, an advanced care directive is a written statement from a person laying out their specific wishes regarding their medical treatment, and other associated matters in the event they are unable, due to incapacity, to instruct medical practitioners directly. This directive are a way to afford yourself control over your body and to dictate how health-related matters are approached in the event you are unable to make these decisions at the relevant time. These directives are commonly known as “living wills”.
Although, there is no set form for an advanced care directive, and no particular area of decision-making which needs to be covered therein, there are common areas which are covered in advance care directives. These include:
- whether or not life support (or life sustaining measures such as artificial feeding or hydration) is to be applied or continued;
- particular treatments the person does not want administered, for example, blood transfusions; and
- directions regarding cardiopulmonary resuscitation (commonly referred to as “do not resuscitate” clauses).
Each state and territory has a different framework governing the form, content and use of advance care directives. Accordingly, many differences (some slight, some prominent) have arisen between the respective states’ frameworks for advance care directives.
In Queensland, there is a prescribed form for an advance health directive which may be used. The matters covered in the advance health directive include whether the person wishes to receive:
- cardio-pulmonary resuscitation;
- assisted ventilation;
- artificial nutrition and hydration; or
- other treatment, for example, antibiotics.
When and why advance care directives are necessary
It is never too early to prepare an advance care directive when dealing with a person’s overarching desires regarding accommodation, medical treatment and end of life decisions.
If you are seeking to exhaustively cover your estate planning/advance care planning, preparation of all relevant documents, including enduring powers of attorney, appointments of enduring guardian and advance care directives are necessary. Even with an enduring power of attorney appointed, the preparation of an advance health directive means that you make own decisions regarding your medical treatment at the end stages of life. You are not solely dependent upon an attorney or statutory health attorney providing appropriate instructions to the medical practitioners, nor burdening the attorney with those decisions.
In Queensland, if you have made an enduring power of attorney appointing an attorney for personal and health decisions, then that attorney has the power to make decisions regarding the withholding or withdrawal of life sustaining measures on your behalf. Accordingly, it is not essential for a person who has made such an enduring power of attorney to put in place an advance health directive. However, again, it affords you control over health-related matters which may arise.
Statutory Health Attorney
Importantly, in Queensland, in the absence of a person having appointed an attorney with power to make health decisions, a statutory health attorney is appointed and provided with the authority to make decisions regarding medical decisions, including the withholding or withdrawal of life sustaining measures. At law, a statutory health attorney is presumed to be the first available adult who is either the spouse of the person requiring care, or an adult responsible for his or her care (other than a paid carer or health care provider). If no person is available, then the Public Guardian will become the statutory health attorney.
How we can help
If you would like assistance regarding Wills and Estates matters such as Wills, Powers of Attorney, Advanced Health Directives or Probate or Letters of Administration applications, our team can help.