No one likes to think about getting sick or injured to a degree where they are unable to make health or medical decisions for themselves. However, once you are 18 years old, it is important to appoint one or more persons you trust to make health, medical and lifestyle decisions for you. Why? Because:
- Once you turn 18 years old, your parents are no longer legally responsible for you and cannot automatically make health and medical decisions for you without your express permission. If your children are turning 18 years old, ask them to put an ACD in place, especially if they are about to go on holiday where quad bike riding, paragliding and other extreme sports are on the menu;
- If you do not appoint someone to make health and medical decisions for you, in circumstances where you are unable to make such decisions for yourself, your family members may become engaged in a dispute about who should be making those decisions or how and when those decisions should be made; and/or
- A court may have to decide who makes those decisions on your behalf.
None of this sounds pleasant for anyone concerned, does it? It will be especially difficult for you. That is why having an Advance Care Directive (ACD) in place before anything happens is a smart move. If you need convincing, cast your mind back a few short months to when COVID provided us with many recent examples of where an ACD would have made all the difference to families trying to make decisions for loved ones.
What is an ACD?
An ACD is a legal document that allows you, at a time you have legal capacity, to appoint one or more Substitute Decision Makers (SDM) to make future health care, residential and accommodation matters and personal affairs decisions on your behalf, in circumstances where you are unable able to make such decisions for yourself. If you would like to read more about ACDs, we have plenty of material on our website, including this article. Please note that:
- Voluntary Assisted Dying is a separate process to making an ACD; and
- an ACD is different from an enduring power of attorney, which covers the management of a person’s financial affairs.
Having an ACD in place provides you and your loved ones with a plan in a difficult time. You’ll know that your wishes and directions about health, medical treatment and lifestyle decisions will be followed, even if you can’t express them yourself at the crucial time, and importantly, your loved ones will know who can make decisions about your care and what your wishes are.
If you have decided to put an ACD in place, you must make sure that your ACD will be recognised as a legally binding document. We are often approached by clients attempting to act as SDMs for a family member but find they are unable to do so because an ACD was not properly signed. This is why the title of this blog post focuses on the making of a legally valid ACD.
Before reading on, please note, ADLV Law is always happy to assist you with the preparation and proper execution of an Advance Care Directive. We will routinely offer this service if you are wishing to put in place a suite of estate planning documents, including a Will and an Enduring Power of Attorney. The advantage of allowing us to assist you in the preparation of your ACD is that we have prepared and implemented ACDs many times before. We can help you to choose your SDMs and advise you about how they should act, jointly or jointly and severally, and what decisions they should make. We can also discuss the kind of wishes and directions you should include in your ACD and their implications as well as help you get your ACD signed and witnessed so that it is legally binding.
If you wish to make an ACD without our help, the relevant forms and instructions are downloadable from the South Australian Government Website.
What can go wrong?
It is important that your ACD is completed and signed correctly, otherwise it may be found to be invalid. If it is invalid then your wishes may not be followed, and the people you have appointed may not be able to act as your SDMs without applying to the South Australian Civil and Administration Tribunal (SACAT). Please note, that different States and Territories have different requirements when it comes to preparing a legally binding ACD, so the process in SA may be different to the process you may have followed in another jurisdiction.
Some common errors when signing an ACD include:
- Not having an authorised witness;
- Having witnesses who are related to you or who stand to benefit financially from your death;
- Having witnesses who are your health practitioner or paid professional carer;
- Your SDMs signing the ACD after you rather than accepting their appointment prior to your signing;
- Not completing all the required sections of the ACD form; or
- Failing to sign or date the ACD where required.
How do you correctly sign an ACD?
Follow these steps:
- Correctly fill out the official ACD form. We can assist you or you can download the form and accompanying instructions from the South Australian Government’s Advance Care Directives website or obtain a hard copy from your healthcare provider.
- Your Substitute-Decision Makers must sign the ACD: Once you have completed the form, the people you have appointed under your ACD as SDMs must sign and date their acceptance before you sign and date the form. Please note the opposite is required in the execution of an enduring power of attorney, where your attorneys sign and date after you sign.
- Sign and date the ACD: Once your SDMs (if any) have signed and dated the form, you must sign the ACD in the presence of an authorised witness.
How do you correctly fill out an ACD?
Your priority in completing an ACD is to ensure that your wishes are clearly and properly documented. The ACD form and the instructions sheets provide a guide about what wishes or directions you may like to include. You should think about your values, beliefs, and preferences for medical treatment and other health-related matters. You can include as much or as little detail as you want, but it’s a good idea to be as clear and specific as possible. Some things you might want to consider include:
- The types of medical treatment you want or do not want;
- Your preferred place of care;
- Placing restrictions on who is allowed access to you;
- Your views on life-sustaining treatment (such as ventilation or feeding tubes); or
- Your views on pain management and palliative care.
You may also wish to consider your cultural and spiritual beliefs, for example, if you are a Roman Catholic, you may direct that you want the sacrament of Last Rites. You can also include information about any beliefs that may impact health or personal decisions, such as refusal of certain medical treatments. You can also include special instructions, for example, who you want to be informed about your health status, if your SDMs can have access to your Will and any dying wishes.
Currently, you cannot include directions in your ACD about voluntary assisted dying. You can read more about that here.
If you wish to leave parts of the ACD blank, then you must strike out the empty section with a “z”.
Please call us on 1300 654 590 or email us if you need assistance in the preparation of an ACD. We can help you to write your wishes to ensure that they are clear, understandable and comprehensive.
Substitute-Decision Makers
A substitute decision-maker (SDM) is the person you appoint to make decisions on your behalf if you become legally unable to make decisions for yourself. Your SDM can be anyone you trust to make decisions that reflect your wishes and values. This may be a family member, friend, or another trusted individual. However, it’s important to choose someone who is willing and able to take on this responsibility and who understands your wishes and values. You can appoint more than one SDM and as well as back-ups SDMs and if you have more than one SDM, you may wish to include methods for making decisions.
Unlike an enduring power of attorney document where the donor of the power must appoint someone (an attorney) to make decisions on the donor’s behalf, you do not need to appoint a SDM to have a valid ACD. The directive may simply be used to set out a person’s wishes in relation to future health care, residential and accommodation matters and their personal affairs. If you have not appointed a SDM, then the relevant medical professional(s) or carers should abide by the directions you have left.
Why do my Substitute-Decision Makers need to sign first?
Your SDM has a critical role to play in ensuring that your wishes are respected if you become unable to express them. By having your SDM sign your ACD before you do, they are indicating that they understand your wishes and are willing to act on them if you are unable to make decisions about your medical treatment and other health-related matters.
If your SDM signed after you have completed the document, this may mean that their appointment as your substitute decision-maker will be found invalid and they will be unable to act. We emphasise this point as this is where many appointments of SDMs fail to meet the legal requirements.
Who is an authorised witness?
When you sign your ACD, your signature will need to be witnessed by an ‘authorised witness’. An authorised witness includes:
- Registered professionals, such as teachers, nurses, doctors (see further discussion below) or pharmacists;
- Lawyers or Justices of the Peace (JP);
- Local, State or Commonwealth Government employees with more than five years continuous service;
- Bank managers or police offers with more than five years continuous service; or
- Ministers of religion.
A full list of authorised witnesses can be found here.
It’s important to note that the authorised witness must be an independent party and cannot be:
- your spouse;
- your SDM;
- anyone who could benefit from your death, for example, a beneficiary under your Will.
This is to ensure that the ACD is not open to any accusations of undue influence or coercion.
Additionally, the authorised witness cannot be a healthcare professional who provides you with direct or indirect care, such as a doctor, nurse, or aged care staff member. This can also include professionals who are likely to provide care in the future, such as a general practitioner in a rural area.
Capacity
Prior to signing an ACD, the authorised witness should review the entire form with you to ensure that you comprehend its purpose, function, and potential effects. If the witness believes that you do not understand the ACD or suspect that you may be acting under duress or coercion, they should refrain from completing the form.
It is important that you have capacity and are operating under your own instructions when completing the ACD. If there is the possibility that you do not have capacity or have concerns about your capacity (for example you have been diagnosed with an illness that impairs your cognitive functions), you should consult with a medical professional and undergo a legal capacity test prior to completing the form. If you complete an ACD when you have lost capacity, it will be invalid.
Signing the ACD
If everything has been filled out correctly, your SDM has signed their acceptance and the authorised witness is satisfied you understand the document, you can now sign the ACD. To properly complete the ACD, you will need to initial and date at the bottom of each page in the designated boxes. The authorised witness will also initial each page and provide confirmation of their office on the first page where indicated. Finally, you and the authorised witness must both sign and date where indicated in Part 4 of the ACD.
After the ACD is signed
After the ACD has been signed, it is important to take the following steps:
- Provide copies of the signed ACD to your SDM, healthcare providers, and anyone else who needs to be aware of your healthcare wishes.
- Ensure that the original signed ACD is kept in a safe and accessible location, such as with your important legal documents or with your healthcare provider. ADLV Law offers a Safe Storage option for our clients.
- Consider reviewing your ACD periodically to ensure that it still accurately reflects your healthcare wishes, especially if your health or personal circumstances change.
- Inform your family and friends about your ACD and your healthcare wishes, so they are aware of your preferences in case of a medical emergency.
- Keep a record of who has a copy of your ACD and when they received it.
By taking these steps, you can ensure that your ACD is properly executed and that your healthcare wishes will be honoured in case you become unable to make decisions for yourself.
If you have been considering preparing an Advance Care Directive or are in the process of signing your ACD and would like help, call us on 1300 654 590 or email us. We can help you prepare this very important document and any other estate planning documents you need.
