Nobody wants to imagine the situation where they are unable to make medical decisions on their behalf because of hospitalisation or incapacitation. Although unfortunate, it can and does happen, and there are legal mechanisms you can put in place to prepare yourself if and when such situations arise. In particular, a living will is an advisable and suitable measure to protect yourself. This article will explore what a living will is and detail the legislation governing them in the different states and territories in Australia.

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 (although there is no statutory recognition in Tasmania). This document, commonly referred to as a living will, dictates an individual’s future medical treatment in circumstances where they are unable to provide their consent.

Correctly prepared and executed, this document will take precedence over other estate documents that appoint another person to make decisions on the principal’s behalf. The key to the enforceability of these documents is that they are made voluntarily, with an understanding of their legal effect.

South Australia

In South Australia, the document is referred to as an ‘Anticipatory Direction (Grant or Refusal of Consent)’ and receives effect from the Consent to Medical Treatment and Palliative Care Act 1995 (SA) (‘the South Australian Act’). The South Australian Act allows a person to make a direction about their future medical treatment where they are unable to do so. This inability may be due to terminal illness, because they are in a vegetative state, or incapable of making decisions.

The living will is legally valid in the following circumstances:

  • A person 18 years or over who is of sound mind (that is, they have the mental capacity to make the specific decision in question) makes the will;
  • The will is in written in the form required by the legislation; and
  • An authorised witness signs and witnesses the will.

Victoria

In Victoria, a living will is referred to as a ‘Refusal of Treatment Certificate’, provided for by the Medical Treatment Act 1988 (Vic) (‘the Victorian Act’).

The Victorian Act is more restrictive than other forms of living wills. It allows a person to refuse medical treatment or refuse a specific kind of medical treatment for a particular condition.

Like the South Australian Act, the Certificate will only be valid if it is:

  • Signed by a person 18 years or over, who is of a ‘sound mind’; and
  • Witnessed by another individual and a medical practitioner.

Australian Capital Territory

In the ACT, the living will is referred to as a ‘Health Direction’. The Medical Treatment (Health Directions) Act 2006 (ACT) outlines the laws surrounding living wills in the ACT. It is similar to the Victorian living will, in that a person may refuse or withdraw from medical treatment in the future. They can also refuse or withdraw from a specific kind of medical treatment. However, they can not use the living will to refuse palliative care.

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

  • The person making the will was 18 years or older without an impaired decision-making capacity; and
  • The individual making the direction signed the will in the presence of two witnesses; or
  • The 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 decision-making capacity.

If a legal guardian is appointed after the living will is signed, they must act consistently with the health direction unless it is unreasonable to do so (e.g. there is no time to locate and consider the direction).

Northern Territory

In the Northern Territory, the document is referred to as a ‘Direction to Refuse Extraordinary Measures’. The Natural Death Act 1988 (NT) allows a living will to operate where extraordinary measures can prolong the dying process. ‘Extraordinary measures’ are those that can extend a person’s life.

Like the other states, the validity of a living will depends on whether the directive was:

  • Made by a person of ‘sound mind’ who is 18 years or over; and
  • Written in the form required by the legislation; and
  • Signed by the individual making the direction and witnessed by two authorised witnesses.

New South Wales

In New South Wales, the living will is referred to as an ‘Advance Care Directive’. Under section 33(3) of the Guardianship Act 1987 (NSW), a person who lacks the capacity to refuse medical treatment may refuse treatment in advance.

To be legally valid, the directive must be:

  • Made voluntarily without coercion by an adult who has decision-making capacity; and
  • Specific enough to apply to the situation that later arises.

Tasmania

Tasmania has no legislation relating to living wills. However, there are certain common law principles for individuals who wish to plan ahead.

These principles are substantially the same as those that apply in New South Wales. Despite there being no legislation, it is prudent to ensure the directive is made in writing and witnessed by two authorised persons.

Western Australia

The Western Australia living will is called an ‘Advance Health Directive’. The appropriate legislation is the Guardianship and Administration Act 1990 (WA).

A living will in Western Australia impacts future medical and surgical treatment, any life-sustaining measures as well as palliative care. It comes into effect as soon as the person no longer has the capacity or the ability to make a reasonable judgement about their treatment.

To be legally valid, the directive 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 legislation;
  • Signed and witnessed by two authorised persons; and
  • Contain a statement which signals that the individual making the directive has sought legal or medical advice beforehand

Queensland

In Queensland, the document is referred to as an ‘Advance Health Directive’. Under the Powers of Attorney Act 1998 (QLD), a person may give directions about their health matters when their decision-making capacity becomes impaired.

However, they may only choose to withhold or withdraw life support in certain circumstances, including:

  • If they are terminally ill, or otherwise suffering an incurable or irreversible illness;
  • Permanently unconsciousness; or
  • In a vegetative state.

The directive can also be used to appoint a ‘health attorney’ to make decisions on their behalf in the event the person becomes 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 legislation; and
  • Signed by the person making the directive and witnessed by an eligible witness.

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Like any other estate planning document, a living will is an important legal document that you should have if you want to inform others of your wishes before you become unable to do so. If you would like assistance with drafting or reviewing your living will or have any questions, get in touch with our estate planning lawyers on 1300 544 755.

Bonnie-Anne Talese

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