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What is a Living Will?

In Short

  • A living will (or Advance Care Directive) allows you to specify medical treatment preferences if you’re unable to make decisions.

  • Each Australian state and territory has its own rules for creating and validating a living will.

  • This document ensures your wishes are followed and avoids potential disputes about medical care.

Tips for Businesses
Encourage clients to prepare a living will as part of their broader estate planning. Ensure they understand the specific requirements in their state or territory for the document to be valid. Provide guidance on where to find the necessary forms and resources to complete the directive. This can help protect their wishes and prevent complications in the future.


Table of Contents

Nobody wants to imagine the situation where they are unable to make medical decisions because of hospitalisation or incapacitation. However, it can and does happen. There are legal mechanisms that you can put in place if such situations arise. In particular, a living will is a suitable measure to protect yourself and your loved ones. This article will explore what a living will is and detail the laws governing them in the different states and territories in Australia. Additionally, it will provide guidance on where to find the relevant forms and further information, based on the state or territory in which you are located. 

What is a Living Will?

All Australian states recognise, in differing forms, the estate-planning instrument known as an ‘Advance Directive’, ‘Health Direction’, or similar. This document is commonly referred to as a living will. It dictates an individual’s future medical treatment in circumstances where they are unable to provide their consent.

When correctly prepared and executed, this document will take precedence over other estate documents that appoint another person to make decisions on your behalf. The key to the enforceability of a living will is that it is made voluntarily and the individual fully understands its effects.

South Australia

In South Australia (SA), a living will is referred to as an ‘Advance Care Directive’. The laws in SA allow you to make a direction about your future medical treatment where you are unable to do so. This inability may be because you:

  • have a terminal illness;
  • are in a vegetative state; or
  • are incapable of making decisions.

The living will is legally valid when:

  • a person 18 years or over who is of sound mind makes the Advance Care Directive;
  • the Advance Care Directive is written in the form required by the law; and
  • an authorised witness signs and witnesses the Advance Care Directive.

Making an Advance Care Directive in South Australia

The South Australian Government provides a form for an Advance Care Directive on its website. Alongside the form is a number of resources, where you can find more information to assist you with completing the Advanced Care Directive

Victoria

In Victoria (VIC), a living will is referred to as an ‘Advance Care Directive for Adults’. The Advance Care Directive enables you to document your preferences for future medical treatment should you lose the capacity to make decisions. You can record general statements about values and preferences, as well as instructions regarding consenting to or refusing specific types of treatment. Victoria also provides forms for individuals under the age of 18 to make an advance care directive. 

The Advance Care Directive will only be valid if it is:

  • signed by the person making the directive, who is of sound mind;
  • witnessed by another individual who is 18 years or over; and
  • witnessed by a medical practitioner (or registered psychologist in the case of advance care directives for persons under the age of 18).

Making an Advance Care Directive in Victoria

The Victorian Government sets out a form for an Advance Care Directive for both adults and individuals under the age of 18 on their website. Alongside the form are a number of resources and FAQs, where you can find more information to assist you with completing the Advanced Care Directive.

Australian Capital Territory

In the Australian Capital Territory (ACT), the living will is referred to as a ‘Health Direction’. Similar to the VIC living will, you can refuse or withdraw from future medical treatment. You can also refuse or withdraw from a specific kind of medical treatment. However, you can not use the living will to refuse palliative care.

The legal validity of the ACT’s living will depends on whether the:

  • person making the will was 18 years or older without an impaired decision-making capacity; and
  • individual making the direction signed the will in the presence of two witnesses; or
  • person making the will did so orally in the presence of two health professionals (one being a doctor).

The direction takes effect when the person no longer has the capacity to make decisions.

The government may appoint a legal guardian after you have signed the living will. If so, then this guardian must act consistently with the health direction unless it is unreasonable to do so.

For example, if there is no time to locate and consider the living will, this legal guardian may be able to make decisions on your behalf.

Making a Health Direction in the ACT

The ACT Government provides a form for a Health Direction on its website. The ACT Government website also provides a number of resources where you can find more information to assist you with completing the Health Direction form.

Northern Territory

In the Northern Territory (NT), the living will is referred to as an ‘Advance Personal Plan’. An Advanced Personal Plan is a document that may outline an advance consent decision, which is a decision about your future care, as well as an advance care statement, which allows you to express your wishes and beliefs. You can also appoint a decision maker to make decisions for you in the future. 

If you change your mind about the plan and are able to make decisions, you can create a new plan at any time.

Like the other states, the validity of a living will depends on whether the document has been:

  • made by a person who is 18 years or over who has decision-making capacity; 
  • written in the form required by the law; and
  • witnessed by an authorised witness, and you have signed it.

Making an Advance Personal Plan in the NT

The NT Government provides a form for an Advance Personal Plan on its website. Alongside the form are a number of resources and FAQs, where you can find more information to assist you with completing the Advance Personal Plan.

New South Wales

In New South Wales (NSW), the living will is referred to as an ‘Advance Care Directive’. In NSW, an Advance Care Directive allows you to set out what treatments you would like to have or refuse if you have a life-threatening illness or injury..

To be legally valid, the living will must be:

  • made voluntarily without coercion by an adult who has decision-making capacity; and
  • specific enough to apply to the situation that may arise later.

Making an Advance Care Directive in NSW

The NSW Government outlines several options for Advance Care Directive forms on its website. Alongside the forms are a number of resources and FAQs, where you can find more information to assist you with completing the Advanced Care Directive.

Tasmania

In Tasmania, a living will is referred to as an ‘Advance Care Directive.’ The Advance Care Directive enables you to document your preferences for future medical treatment should you lose the capacity to make decisions. You can record general statements about values and preferences, as well as instructions regarding consenting to or refusing specific types of treatment.

To be legally valid, the Advance Care Directive must be:

  • made by a person with decision-making ability, 
  • made freely and voluntarily; and
  • be witnessed by an authorised person.

Making an Advance Care Directive in Tasmania

The Tasmanian Government provides a form for an Advance Care Directive on its website. Also on the Tasmanian Government’s website has a number of resources and FAQs, where you can find more information to assist you with completing the Advanced Care Directive.

Western Australia

In Western Australia (WA), the living will is called an ‘Advance Health Directive’. A living will in Western Australia impacts:

  • future medical and surgical treatment;
  • any life-sustaining measures; and
  • palliative care.

It comes into effect as soon as you no longer have the capacity or the ability to make a reasonable judgement about your treatment.

To be legally valid, the living will must be:

  • made by a person who is 18 years or older, who is of full legal capacity;
  • written in the form required by the law;
  • signed and witnessed by two authorised persons; and
  • contain a statement that signals that you have sought legal or medical advice beforehand.

Making an Advance Health Directive in WA

The Western Australian Government provides the Advance Health Directive form on their website. Alongside the form are a number of resources and FAQs, where you can find more information to assist you with completing the Advanced Health Directive.

Queensland

In Queensland (QLD), the document is referred to as an ‘Advance Health Directive’. Under QLD laws, you may give directions about your health matters if your decision-making capacity becomes impaired.

However, you may only choose to provide or withdraw life support in certain circumstances, including:

  • if you are terminally ill, or otherwise suffering an incurable or irreversible illness;
  • permanently unconscious; or
  • in a vegetative state.

You can also use a living will to appoint a ‘health attorney’ to make decisions on your behalf if you become incapacitated.

Much like the other states and territories, a legally valid directive will be:

  • made by a person 18 years or older, who has been certified as having capacity via a certificate signed by a doctor;
  • written in the form required by the law; and
  • signed by you and witnessed by an eligible witness.

Making an Advance Health Directive in Queensland

The Queensland Government provides the Advance Health Directive form (Form 4) on their website. Alongside the form is an explanatory guide from the Queensland Governmen, where you can find more information to assist you with completing the Advanced Health Directive.

Key Takeaways

Like any other estate planning document, a living will is a crucial legal document that allows you to inform others of your wishes before you become unable to do so. The requirements of your living will vary depending on the state or territory in which you live.

Please note that LegalVision is a commercial law firm and cannot assist in matters surrounding wills.

Frequently Asked Questions

What is a living will?
A living will, also known as an Advance Care Directive or Health Direction, is a legal document that outlines your medical treatment preferences in case you become unable to make decisions due to illness or incapacity.

How do I create a valid living will?
The requirements for creating a valid living will vary by state or territory in Australia. Generally, you must be of sound mind, over 18 years old, and your directive must be signed and witnessed by authorized individuals. Check your local government website for specific forms and guidelines.

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Maddison Zahra

Maddison Zahra

Lawyer | View profile

Maddison is a Lawyer at LegalVision, working in the Corporate and Commercial Team. She has particular expertise in commercial contracts, data and privacy and regulatory compliance advice for small businesses and startups within the Australian landscape. She also has previous experience in Government and Property Law, where she worked with a variety of clients, from small to medium businesses to large corporate and Government clients.

Qualifications:  Bachelor of Laws, Bachelor of International Studies, University of New South Wales.

Read all articles by Maddison

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