What do I need to know about Advance Care Directives?

What is an Advance Care Directive?

An Advance Care Directive, commonly known as a living will, is a document that outlines a person's wishes and directions regarding their future healthcare. It comes into effect only if a person's health deteriorates to an extent, they become unable to make and communicate their own decisions to their family members and most importantly treating health professionals.

In New South Wales, an Advance Care Directive is not a formal legal document like a Will, however, they have been upheld by the NSW Supreme Court. The NSW health system will follow the Advanced Care Directive if it provides clear and specific instructions about the medical care you will or will not accept. 

The Advance Care Directive can include directions about:

1. Medical treatment and procedures you would accept or refuse
2. Where you would like to be looked after when dying, such as in a hospital, hospice, residential aged care facility or at home
3. Personal, religious, or spiritual care you would like to receive when dying.

It's important to note that an Advance Care Directive cannot be used to request euthanasia or assisted suicide.

Who can make an advance care directive?

An Advance Care Directive can only be made by an adult who has decision-making capacity. This means that the person must be able to understand the nature and effect of the document at the time that it is made. The decisions expressed in the documents must be made freely and voluntarily. The individual also needs to be able to articulate their decisions to their family and health professionals.

Is an Advance care directive legally binding?

The NSW Supreme Court has upheld Advance Care Directives. This means that health professionals must adhere to the instructions contained in an Advance Care Directive, as long as those instructions are valid and are applicable to your medical circumstances.

Is there a prescribed form of advance care directive?

In New South Wales, there is no prescribed statutory form for an Advance Care Directive. However, NSW Health has a Making an Advance Care Directive book, which contains an Advance Care Directive form. It is not compulsory to complete the form but is recommended as it covers all the information necessary for an Advance Care Directive.

The Advance Care Directive should be completed in English and include the person’s full name, date of birth, and address. It should be signed by the person making the directive and witnessed by two adults, one of whom should ideally be the treating health professional. Neither witness should be the person’s appointed enduring guardian. The witnesses must certify that the person completing the directive has mental capacity to do so and acted freely and voluntarily in making the Advance Care Directive.

Once completed, the Advance Care Directive can be uploaded to your My Health Record, so it is available to your treating doctors if the need arises.

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.

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