If you are getting on in years, or you have loved ones in your family who are, which covers just about all of us, you really need to be aware that there has been a significant change in the legal landscape with the recent introduction of the Advance Care Directives Act 2013.
The Act came into operation on 1 July 2014.
It makes some fundamental changes in terms of how people who are unable to manage their own affairs because of age and/or incapacity can make advance formal decisions about this.
An “advance care directive” allows a person to set out their own guidelines and requirements in terms of:
- How decisions about their future healthcare and other personal issues are to be made;
- What medical treatment and other healthcare they specifically refuse to have in certain circumstances.
The critical thing to understand about the new Act is that it does away with:
- powers of guardianship under the Guardianship and Administration Act 1993 (although any Power of Guardianships entered into before 1 July 2014 are still effective and operative under the new Act and are taken to be advance care directives); and
- anticipatory directions or medical powers of attorney under the Consent to Medical Treatment and Palliative Care Act 1995 (although any directive or medical power of attorney appointed before 1 July 2014 will be taken to be an advance care directive and substitute decision-maker under the new Act).
Instead of people having a “guardian” appointed under a power of guardianship or a medical agent appointed under a medical power of attorney, they’re able to appoint a “substitute decision maker” in their advance care directive.
Unlike an enduring power of attorney, which deals with legal and financial issues only, an advance care directive covers personal matters such as your future health care, residential and accommodation matters and personal affairs.
Also unlike an enduring power of attorney, it is not necessary to appoint a substitute decision maker in your advance care directive. You can simply use your advance care directive as a personal blueprint about how you want to be dealt with by health providers and family members in the event you are no longer able to make your own decisions, instead of leaving these decisions to authorities such as the Guardianship Board of South Australia.
Like an enduring power of attorney, an advance care directive gives you or your loved one the ability to plan ahead, at a time when you’ve got capacity, about how you wish to have your personal and medical affairs taken care of if and when you lose capacity, whether you decided to appoint a substitute decision maker or not.
Although the Government has created a website, advancecaredirectives.sa.gov.au and a DIY advance care directives kit for personal use, we urge you to consider obtaining legal advice in relation to the drafting of the form. It is important to appreciate that ambiguities and disputes can arise with respect to the preparation, construction, interpretation and implementation of advance care directives, and the Guardianship Board and the Supreme Court of South Australia still have powers to intervene in the event of disputes.
It is better to be safe than sorry. We urge you to consult us well “in advance” by calling us on 8354 2233 and making an appointment to discuss your circumstances and what should happen to you in the future when you’re no longer able to make your own decisions.