Advance Health Directives - Question of Life or Death

An Advance Health Directive (“AHD”) is a document containing a person’s decisions about future health treatment and includes medical, surgical, dental treatment and other health care. You can either provide or refuse consent to future treatment.

An AHD only comes into effect if you are unable to make reasonable judgments about a treatment decision at the time the treatment is required. In these circumstances, the Advance Health Directive acts as you ‘voice’. 

Given the media coverage that Advance Health Directives (“AHD”) have received recently (for example, to listen to an interesting radio discussion on the topic please click here) it seems timely to give an overview of the document and how they can assist in estate planning. 

Why is having an AHD important?

Some people, perhaps because of a personal experience, religious beliefs or advice from loved ones, feel it is important to specify the treatments they want, or do not want, to receive in the future if they are unable to make those decisions for themselves.

For example, Judy (in the radio broadcast mentioned above) told her story of how she and her sister had to make the decision of whether or not to resuscitate her mother. She said that it was one of the most stressful decisions she has ever had to make in her life. Some people do not want their loved ones to have to make such a confronting decision and therefore make an AHD. As Judy said, you want that to have been their decision. 

Who can make an AHD?

You can make an AHD if you are over 18 years of age and have full legal capacity. If you have any doubts about your capacity to make an effective AHD you should ask your doctor for an assessment. You must make your own AHD and you cannot make an AHD for someone else. 

Will my AHD be followed?

If you are unable to make a treatment decision, the treatment decisions contained in your AHD will come into effect. Subject to some limited exceptions, health professionals are required to comply with your treatment decisions.

Are there any times when my treatment decision will be invalid?

A treatment decision contained in an AHD will be invalid if:

  • it was not made voluntarily. For example, if you were pressured by another person to make the treatment decision and you felt that you had no choice but to do so;

  • it was made as a result of inducement. For example, if you were told that you or another person close to you would receive some financial benefit if you agreed to make the treatment decision, and you made the decision based on this;

  • it was made as a result of coercion. For example, if you were told that your family would only continue to care for you if you agreed to make a treatment decision, and you made the treatment decision for this reason;

  • at the time that you made it, you did not understand the treatment decision. For example, if you made a decision which provided consent to receive a particular type of treatment, and you did not know what this treatment was, what it involved or what the risks of the treatment were; or

  • at the time that you made it, you did not understand the consequences of making the treatment decision. For example, if you did not understand that the treatment you refused consent for was necessary to save your life.

If there is any doubt about the validity of your AHD, an application can be made to the State Administrative Tribunal for clarification.

Are there any times when my treatment decision will be inoperative?

A treatment decision contained in an AHD will be inoperative if:
  • circumstances relevant to your treatment decision have changed since you made the treatment decision;
  • you could not have reasonably anticipated those changes at the time that you made the treatment decision; and
  • a reasonable person with knowledge of the change of circumstances would now change their mind. For example, if you made a treatment decision thinking your illness would get severely worse, and a new treatment or cure became available after the time you made the treatment decision.

What if I don’t make an AHD?

If you are unable to make reasonable judgments about your treatment, and if you have not made an AHD, the treatment decision will be made on your behalf. This may arise in conflict if family members have differing opinions.

Are there any other options available?

f you do not want to make an AHD you can appoint someone else to make decisions for you in the event that you can’t make your own decisions. A person you appoint to make personal, lifestyle and treatment decisions on your behalf is called an Enduring Guardian. You cannot use your AHD to appoint an Enduring Guardian.

To appoint an Enduring Guardian you must complete an Enduring Power of Guardianship form.

You can also discuss your wishes and values with your family and friends so that they will have a better understanding of what you may or may not want in case they are ever called upon to help make treatment decisions on your behalf.

Some people choose to appoint an Enduring Attorney to act on their behalf on financial matters. Unlike an Enduring Guardian, an Enduring Attorney is not able to make personal, lifestyle and treatment decisions on your behalf. However, it is possible for the same person to be appointed as both your Enduring Guardian and Enduring Attorney at the same time.

How do I make an AHD (or an Enduring Power of Guardianship)?

You can discuss making an AHD (or an Enduring Power of Guardianship) by arranging an appointment to come and meet with our solicitor Laura Di Cristofaro for an obligation and cost free appointment.