This page provides a plain-English overview of the legal processes involved in planning ahead, as well as links to local information. To get advice about your individual circumstances it is recommended that you consult with one of the agencies referred to below or a legal practitioner.
Apart from appointing a substitute decision-maker, how else can I document my wishes?
- While having conversations about your wishes is crucial, it is strongly recommended that you also document your wishes in at least one of the ways outlined below. This will avoid situations such as the person(s) you have spoken with not quite remembering what you had said, the person not being available when decisions need to be made or the person not relaying your views if they were not really in agreement with them.
- As the first two options below have a clear legal basis in Australian Capital Territory legislation, it is recommended that you explore these options first.
Complete a ‘Health Direction’
- This is a written document that has a clear legal basis in legislation under the Medical Treatment (Health Directions) Act 2006.
- A Health Direction can be made by any adult with decision-making capacity that is not under the care of a legal guardian.
- A Health Direction is focused on the withholding or withdrawal of current or future medical treatment generally, or of specified medical treatments.
- The Health Direction document does not provide for you to specify under what circumstances you would want treatments to be withheld or withdrawn.
- It is important to discuss your decisions with others – such as your GP – because your Health Direction may be considered invalid if it is thought that you did not understand the consequences of your directive at the time you were writing it.
- If a person makes a Health Direction and later appoints someone under an Enduring Power of Attorney with healthcare function, the Health Direction is no longer valid.
Include instructions in the appointment of an Enduring Power of Attorney for personal care and/or healthcare matters
- The forms for this appointment allow you to specify directions, limitations and conditions about how the attorney(s) should perform their functions.
Make a written statement of your wishes other than in a Health Direction
- This may be a general statement of your values, wishes and preferences. It may also include directions about whether you would, or would not, consent to specific treatments in particular circumstances.
- Documents for this purpose can be found from a range of programs – including the worksheets on this website and other programs listed on this site.
- This type of document is often referred to as a ‘common law directive’ because it potentially has a legal basis in common law (law decided by courts rather than legislation).
- A common law directive written by you needs to be used to guide anyone who has to make decisions on your behalf.
- There are different opinions about the degree to which common law directives are legally binding, and there have been no court findings in the Australian Capital Territory to give clear guidance on this.
- If you choose to make a common law directive, it is strongly recommended that you use one of the forms developed for this purpose and that you have the form witnessed. This will increase the likelihood that your directive will be accepted and acted on if the need arises.
Whatever type of documents you make, it is vital to give copies to people who may have to make decisions for you in the future and to make sure they understand how you want them to use these documents.