Advanced Health Directive

Advance health directives

If you become seriously ill or unconscious or are no longer able to make decisions, you may be unable to communicate your healthcare decisions.

An advance health directive allows you to plan what medical treatment or health care you would like in the event that you cannot make decisions for yourself. An advance health directive also enables you to appoint an attorney for health matters if you wish.

You should carry a card with you stating that you have an advance health directive, and medical staff can refer to the document when needed. You should give copies of your advance health directive to your doctor, family and friends.

Information to include in an advance health directive

If you do not have an advance health directive and become so ill you cannot make decisions or speak for yourself, you have no legal way of making your wishes known about when to withdraw or withhold life-sustaining measures.

By making an advance health directive you can specify what treatment you would like to have or you would like to refuse if you become seriously ill, unconscious, or are no longer able to make your own decisions, and are unable to communicate your health care wishes.

Medical staff will refer to your directive if you can no longer make decisions for yourself. However, doctors have the ability to disregard a direction if it is uncertain, inconsistent with good medical practice or no longer appropriate because circumstances have changed.

You can express your wishes in a general way. For example, you can state:

  • particular treatment you do not want
  • special medical conditions that your doctor or other medical staff should know about (such as diabetes or allergy to certain medications)
  • religious, spiritual or cultural beliefs that could affect your treatment (such as if you have particular views about receiving a blood transfusion).

Life-sustaining measures

You can give specific instructions about the withholding or withdrawing of life-sustaining measures if you have one of the medical conditions listed below:

  • you have a terminal illness for which there is no known cure or there is no possibility that you will recover; and doctors believe you have only 12 months or less to live. (While this is written in the law, medical opinions differ as to what a terminal illness is and how long it is predicted to last.)
  • you are in a persistent vegetative state. This means you have severe and irreversible brain damage with some other characteristics
  • you are permanently unconscious from severe brain damage
  • you have an illness or injury that is so severe that there is no reasonable prospect that you will recover and be able to live without continuing life sustaining measures.

Examples of life-sustaining measures include:

  • cardiopulmonary resuscitation to keep your heart beating
  • assisted ventilation to keep you breathing
  • being fed food and water through a tube directly into the stomach.

Palliative care

You can also specify your wishes about palliative care which offers comfort, support and adequate pain relief to people who are dying – even if treatment is futile or a life sustaining measure is withheld or withdrawn.

Euthansia

Euthanasia is illegal. Nobody, including your doctor may give you anything that is intended to actively cause your death.

Your doctor can only give treatment that aims to maintain or improve your health and wellbeing. If treatment cannot achieve this, a doctor can lawfully and ethically withdraw or withhold treatment provided this is not inconsistent with good medical practice. This is not euthanasia. In your directive, you can ask to be given only palliative care.

Combination with an enduring power of attorney

There are advantages to having both an advance health directive and an attorney for personal matters. If you become so ill that your directive is in force but doesn’t cover all the health conditions you suffer, then your attorney can make decisions on your behalf and in your best interests.

If you haven’t appointed an attorney for personal or health matters under an enduring power of attorney, the advance health directive form  (PDF file 273.4 KB) contains a section for appointing one.

Making an advance health directive

You can make an advance health directive if you are over 18 and have the capacity to do so. This means that you:

  • understand the nature and consequences of your health care decisions
  • understand the nature and effect of the directive
  • freely and voluntarily make these decisions
  • communicate your decisions in some way.

When to make a directive

The best time to make an advance health directive is now, before any urgent health condition arises. However, it is particularly important to make one if:

  • you are about to be admitted to hospital
  • your medical condition is likely to affect your ability to make decisions
  • you have a chronic medical condition that could result in serious complications such as diabetes, asthma and heart or kidney disease.

How to make a directive

Fill out the advance health directive form (PDF file 273.4 KB) stating what type of medical treatment you want or do not want. This can be a general statement of your wishes, or it can give specific instructions about certain medical conditions or types of treatments.

Discuss with your doctor

Your doctor is the best person to talk to because they know your medical background and can explain any terms you do not understand. There is a section in the advance health directive form (PDF file 273.4 KB) that must be completed by a doctor.

Discuss with your family

You should also discuss the directive with your family. If you have already made an enduring power of attorney, talk to your attorney appointed to make decisions for you regarding personal matters. If you do not have an enduring power of attorney, discuss issues with the person you want to act as personal attorney under the directive.

Directives must be witnessed correctly

Besides you and your doctor, there must be a witness who is aged 21 or over and is a justice of the peace, commissioner for declarations, lawyer or notary public. The role of the witness is very important because they are responsible for making sure that your signature is genuine and that you understand the decisions you have made.

If you are using the form to appoint someone as an attorney for personal and health matters, this person will also have to sign the advance health directive. Your witness must not be:

  • your attorney for personal matters
  • your relative or a relative of your attorney
  • a current health provider
  • a current paid carer (this does not include a person on a carer’s pension)
  • a beneficiary under your will.

What to do with the completed form

Keep the original in a safe place and give a copy to your doctor, your attorney for personal matters (if you have appointed one) and a family member or friend. It is a good idea to carry a card stating that you have made an advance health directive where it can be found, and contact details of your personal attorney or a family member or friend.

Changing or revoking an advance health directive

Your wishes as stated in a directive are not final. You can change them at any time provided you still have the decision-making capacity to do so. You should review your directive every two years or if your health changes significantly.

If you do want to make changes to your directive, you should destroy the current one along with any copies and make a new one.

You may also revoke your directive at any time. This must be done in writing. No specific form is required and the person witnessing your signature does not need to be a justice of the peace, commissioner for declarations or a lawyer.

Planning your endgame: Advance Care Directives

TALKING ABOUT DEATH AND DYING – Can we be forced to live despite our wish to have our lives end at some natural point? What options do we have for having a say in how and when we are to die? Today we look at the main recourse for having a say in how our lives end. Many people in the community fear the…

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An Advance Directive is a written document that ensures a person’s wishes about the end of their lives are known. Luke Addison

TALKING ABOUT DEATH AND DYING – Can we be forced to live despite our wish to have our lives end at some natural point? What options do we have for having a say in how and when we are to die? Today we look at the main recourse for having a say in how our lives end.

Many people in the community fear the end stage of life, not because they’re afraid of dying but because they fear such things as the loss of mental faculties, control and dignity, being a burden on family and not receiving adequate pain relief.

This is often the result of having witnessed distressing deaths of loved ones, as illustrated in cases such as these:

  • Daughter: Mum always said she wouldn’t want to be resuscitated if her heart stopped, but they wouldn’t listen.
  • Wife: First of all he was stubborn when he was in hospital; he wouldn’t eat – he was just starving himself… so they had to force-feed him. They put a tube down his nose and then they had to tie him in the bed, because he kept pulling it out. He just didn’t want it.

Every competent person has a right to refuse treatment – even life-saving treatment – and the cases above are actually assault under the law in Australia.

Advance Care Planning provides a way for competent people who fear aggressive end-of-life treatment to record what kind of medical attention they would or wouldn’t want if they no longer had the capacity to make their own decisions.

There are two ways to do this: one is to write down your wishes in an Advance Directive; the second way is to appoint someone to make decisions for you once you’re no longer capable of deciding for yourself. Doing both gives greater certainty.

Naomi Ibuki

Advance Directives

An Advance Directive is a written document that ensures a person’s wishes are known. It also assists health-care providers to make decisions in line with what the patient desires and – because Advance Directives are legally binding in every state and territory in Australia – it gives people confidence that their wishes will be carried out.

You can also appoint a substitute decision maker (called an Enduring Guardian, Medical Agent or Enduring Power of Attorney for health matters) to make personal, lifestyle and/or medical and dental treatment decisions on your behalf, in case you lose the capacity to do so yourself.

This option is available in every state and territory except the Northern Territory, and the appointed person is usually a trusted relative or friend.

You can also appoint more than one substitute decision maker and say how they’re to make the decisions. The chosen person must agree to the appointment, should understand your wishes and be prepared to carry them out.

The appointment must be in writing, in an approved form, which must be signed by the person choosing their substitute decision maker/s; by the person or people appointed and; by an independent witness (depending on the state or territory this might be a solicitor, a justice of the peace or a Registrar of the Courts).

What if no-one has been appointed?

If there’s no Advance Directive and you haven’t appointed a substitute decision-maker, the legislation in each state/ territory provides for decisions to be made by the first person in a specified list.

In most states and territories, the order of authority starts with spouse (including de facto or same-sex spouse) and if there’s no spouse it moves to a non-professional carer. If there’s no carer, it’s usually or a close relative or friend of the patient.

Garry Wilmore

It’s important to note that that the order of authority isn’t based on next-of-kin and the person who has the legal right to make health-care decisions may not be the person the patient themselves would’ve chosen.

How well do such arrangements work?

There’s a great deal of confusion in hospitals, residential aged-care facilities, and in the general community about Advance Care Planning (ACP). This confusion not only means that patients’ wishes for end-of-life care are often not respected, but it can also put health-care providers at risk of serious legal consequences.

Part of the confusion is caused by the fact that the law relating to ACP is different in every Australian state and territory, each of which uses different terminology and different documents. To start to address this issue, the Australian Government recently released the National End-of-Life Framework, which is promoting Advance Care Planning consistency across Australia.

A full listing of the laws in each state and territory can be found at the end of a discussion booklet End-of-life care for people with dementia (find downloads along the top menu line, scroll down to Publications and Reports, to the fourth document) published by Alzheimer’s Australia.

Most people want at least a measure of predictability and self-determination in relation to death and dying. Advance Care Planning can help to provide that.

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