Most people are probably somewhat familiar with the role of Enduring Powers of Guardianship, Medical Powers of Attorney and, to a lesser extent, Anticipatory Directions. These various documents are the means by which an individual can express his or her medical wishes, future health care and other personal matters. There are subtle differences between each of the documents and determining which documents were required usually only occurred in consultation with a lawyer.
I speak in the past tense because this is all about to change, in what is the most extensive overhaul of legislation related to this area of estate planning in more than 20 years. The Advanced Care Directives Act will commence operation on 1st July 2014. In a nutshell an Advanced Care Directive (“ACD”) will replace the Enduring Powers of Guardianship, Medical Powers of Attorney and Anticipatory Directions. It is a single legal document which enables competent adults to appoint one or more Substitute Decision-Makers to make medical decisions on their behalf after they lose mental capacity, to write down their wishes and preferences for future health care, residential, accommodation and personal matters.
Previously there was a large crossover between the appointment and authority/obligations on guardians and medical attorneys who may or may not have to also comply with any specific written directions contained within an anticipatory direction made separately. Now, all health care, residential, accommodation and personal decisions are contained within one single document.
From 1st July 2014 only an ACD is a lawful and valid way of appointing Substitute Decision-Makers and making statements about your health-care wishes and personal values.
When preparing an ACD you may choose to include statements about your wishes and values however, they should be clear, precise and well thought out. For example, you may wish for your Substitute Decision-Maker to consult with a specific friend when making decisions about your welfare. Perhaps because of your religious beliefs, you do not wish to receive a blood transfusion, even if it is judged medically necessary to save your life. Alternately, in the event you require supported accommodation, you would prefer to live close to a specific family member. It is vital to remember when preparing these documents that ambiguous statements are unlikely to assist health professionals or Substitute Decision-Makers.
If you have written a refusal of health care, it must be followed if relevant to the circumstances at the time. This means your health practitioner will not be able to give health care treatment that you have refused. All other information written in your ACD is advisory and should be used as a guide to decision-making by your Substitute Decision-Maker, your health practitioners and anyone else making decisions on your behalf. For instance, this may be observed in a statement about the refusal to receive life sustaining measures by artificial means or devices, if you are in the terminal phase of a terminal illness, and unlikely to return to a reasonable quality of life.
While this is a massive change for lawyers, this requires very little from the average Australian who already has documents for either Medical Powers of Attorney, Enduring Powers of Guardianship or Anticipatory Directions (assuming they were prepared and finalised before 30th June 2014). The old documents are still functional. However, as experienced solicitors in this field, we always recommend careful review of all testamentary documents on a regular basis.
Who you should appoint as your Substitute Decision-Makers, in what capacity they should be chosen and what conditions, limitations or directions you should give to them is still something a lawyer is best equipped to discuss, advise and provide guidance. Lawyers are uniquely equipped to manage expectations, provide a plethora of alternative solutions and suggestions and prepare an ACD which is uniquely suited to you, your individual needs and concerns, with a view to avoid confusion, conflict and ambiguity in the future.
For more information related to Advanced Care Directives, or for an appointment to discuss your individual needs, please contact Greg Welden or Jason Coluccio on 7225 8703
