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, and 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. This article will explore what a living will is and detail the laws 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. 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 you make it voluntarily and fully understand its effect.

South Australia

In South Australia (SA),  living will is referred to as an ‘Anticipatory Direction (Grant or Refusal of Consent)’. 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:

Victoria

In Victoria (VIC), a living will is referred to as a ‘Refusal of Treatment Certificate’. The laws in VIC are more restrictive than other forms of living wills. It allows you to refuse medical treatment or refuse a specific kind of treatment for a particular condition.

Like the SA laws, the certificate will only be valid if it is:

  • signed by a person 18 years or over, who is of sound mind;
  • witnessed by another individual; and
  • witnessed by a medical practitioner.

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 medical treatment in the future. 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 is dependant on if 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 decision-making capacity.

If the government may appoint you with 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.

Northern Territory

In the Northern Territory (NT), the living will is referred to as a ‘Direction to Refuse Extraordinary Measures’. The laws in NT allow 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 depend on whether the document has been:

  • made by a person of sound mind who is 18 years or over; and
  • written in the form required by the law; and
  • witnessed by two authorised witnesses and you have signed it.

New South Wales

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

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 later arises.

Tasmania

Tasmania has no specific laws relating to living wills. However, there are certain principles that apply to individuals who wish to plan ahead.

These principles are substantially the same as those that apply in NSW. Despite there being no specific laws, it is important to ensure the directive is:

  • made in writing; and
  • witnessed by two authorised persons.

Western Australia

The Western Australia (WA) 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 which signals that you have sought legal or medical advice beforehand.

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 withhold or withdraw life support in certain circumstances, including:

  • if you are terminally ill, or otherwise suffering an incurable or irreversible illness;
  • permanently unconsciousness; 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.

Key Takeaways

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. The requirements of your living will varies depending on what state or territory you live in. If you would like assistance with drafting or reviewing your living will, contact LegalVision’s contract lawyers on 1300 544 755 or fill out the form on this page.

Bonnie-Anne Talese
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