In Australia, and probably within many other countries, every competent adult has the legal right to accept or decline any medical treatment.
However, if you are unable to communicate your wishes or have lost the mental capacity to make your own decisions, what then?
This is when an Advance Care Directive comes in to support you.
In this article I will briefly discuss Advance Care Directive – What is it and why is it important?
Many people believe that if they have a ‘Last Will and Testament’ in place this will cover their medical wishes…. But this is wrong. A will is a document that records your wishes regarding the distribution of your property and the care of any minor children, and only comes into effect after you have died.
Furthermore, many people believe that if they have an ‘Enduring Power of Attorney’ appointed, once more their medical wishes will be observed… but again this is wrong. An Enduring Power of Attorney only authorises someone to make financial decisions for you when you’re not able to for yourself.
An Advance Care Directive is a simple document that records your wishes regarding your current and future health care, and is greatly influenced by your values, beliefs and what you cherish in life.
This document records the medical treatments you want to have, and most importantly which medical treatments that you do not want to have, and only comes into effect if you are incapacitated and unable to communicate your wishes or have lost the mental capacity to make your own decisions.
What is Mental Capacity?
To have mental capacity means being able to make decisions for ourselves. This is a legal term and each Australian state and/or Territory offers a variation to the definition of having mental capacity. However, broadly speaking when a person has mental capacity they can do all of the following:
Comprehend information given to them
Be able to weigh up the information available to make a decision
Understand the consequences of their decision
Retain that information long enough to be able to make a decision
Communicate their decision to others
What is Mental Incapacity?
Having a mental incapacity means not being able to make some decisions even after the necessary information, advice and support has been given, and mental incapacity may be temporary or ongoing. Capacity to make a particular decision will be in doubt if a person:
Does not understand the information given or
Unable to consider the main issues, options and likely consequences involved in making that decision or
Does not remember relevant information long enough to be able to make a decision or
Cannot communicate their decision to others
Under Australian law, every adult is presumed to have mental capacity and this is probably similar within many other countries. However, mental capacity is compromised when a person is unconscious or has a severe cognitive disability, such as dementia. If a person doesn't have mental capacity, someone called a 'substitute decision-maker' might need to make the decision for them, and an Advance Care Directive would have your healthcare wishes recorded to direct this person to act accordingly to your wishes.
As with a Last Will and Testament, if you do not have an Advance Care Directive in place when it is needed your wishes are unknown and medical professionals may use aggressive and invasive medical treatments that you may not want.
Although Advance Care Directives may be different between Australian states and/or territories, recording your preferences and future medical care wishes in an Advance Care Directive is simple.
An organisation called ‘Advance Care Planning Australia’ have government approved FREE kits for each state and/or territory. Links to these are below and are correct as of June 2022.
Legal professionals are required when creating both your Last Will and Testament and when appointing an Enduring Power of Attorney, however no lawyers are necessary with an Advance Care Directive, and this is a valid legal document and health professionals and family members must follow a valid directive. They cannot override it. However, you will need to nominate a substitute decision-maker who can speak on your behalf, and different Australian states and/or territories may have different titles for a substitute decision-maker, but they all have the same function.
Selecting a substitute decision-maker.
Choosing who will be your substitute decision-maker is very, very important. Think carefully about who this person will be because they will be making decisions for you, and following your instructions if you no longer have decision-making capacity. To formalise your pick of a substitute decision-maker, you simply complete the relevant form corresponding to your state/territory.
This substitute decision maker should be a person-
you trust
who is over 18 years
who will listen to and understand your preferences and values for future care
who will be comfortable making decisions in difficult situations.
Most importantly ask yourself the question: ‘Am I confident this person will make decisions based on what I would want?’ You can also choose a second person to be an alternate decision-maker and they will step in if your first decision-maker is unable to make decisions on your behalf.
Get your doctor involved
Gather advice and information regarding your current health situation from your doctor and also discuss what may happen in the future and potential changes if there are any specific areas of concern. It would be appropriate to discuss with your doctor your Advance Care Directive.
Once your Advance Care Directive is completed, you need to sign and date it, and your substitute decision-maker and your doctor can also sign it.
Finally, give copies of your directive to:
your family
your substitute decision-maker
your doctor
anyone else who you feel is appropriate
More information about Advance Care Directives is available from a short video on my YouTube channel ‘Ask a Dementia Champion’.
In summary
Your decision about which of these tools will help best when your are planning ahead will greatly depends on your stage of life and/or your specific circumstances, and it is hard to argue against the merits of each tool. However, where both a Last Will and Testament and an Enduring Power of Attorney are well known about, an Advance Care Directive is lesser known, but still very important to have in place. By documenting and communicating your wishes and intentions you can have peace of mind and reduce family stress, conflict, uncertainty or potential disputes with how your affairs, wishes and preferences are managed.
In short all three are legal documents with specific goals and outcomes.
· An Advance Care Directive records a person’s instructions, wishes and preferences for future health care, and appoints one or more substitute decision makers who are people selected to made decisions on their behalf in any period of impaired decision making capacity, or as determined by the individual creating the directive.
· An Enduring Power of Attorney is used for appointing an attorney (substitute decision maker) to make financial decisions on your behalf.
· A Last Will and Testament appoints an executor and directs your estate to be distributed according to your wishes after your death.
It may be confronting to record your preferences and medical care wishes but it makes sense to plan for tomorrow so you can live for today.
Tim England – Dementia Champion
(B.Dem.Care; M.Dem)
Disclosure - Not Medical and/or Legal Advice: Information in this article is for general informational and educational purposes only and is not meant to be a substitute for the advice provided by a Medical and/or Legal Practitioner.
