Advance Care Directives

by | Wills & Estate Planning

The Advance Care Directives Act, 2013 (SA) came into operation on 1 July 2014.  The Act allows adults to make legally binding arrangements for their future health care, end of life wishes, living arrangements and other lifestyle matters by appointing one or more Substitute Decision Makers in an Advance Care Directive (“ACD”) Form.

Enduring Powers of Guardianship, Anticipatory Directions and Medical Powers of Attorney in existence prior to 1 July 2014 will still have legal effect but thereafter the new ACD will replace all of these documents.

The ACD is a form which allows a person giving an Advance Care Directive to record their written instructions as to their wishes for future health care and accommodation, and matters relevant to their personal decision making.  The ACD Form also allows a person to appoint one or more Substitute Decision-Makers which person or persons will have the legal power to make health and lifestyle type decisions on behalf of the person giving the ACD should that person lose their mental capacity (determined by a health professional).

The ACD Form has been designed so that it can be completed without legal assistance.  This doesn’t mean that it should be taken lightly or completed without significant thought and discussion.  Indeed, it is our opinion that the appointment of Substitute Decision-Makers and the drafting of their conditions of appointment is something that should be discussed with a lawyer at the same time as giving instructions for a Will and Enduring Power of Attorney as part of an estate plan.

Medical professionals can rely on an ACD or the decision of a Substitute Decision-Maker where that decision is made in accordance with the terms of the ACD.  Where a medical professional relies on an ACD that professional is protected from criminal and civil liability where he or she acted in accordance with the ACD or the Substitute’s valid instructions.

Subject to the provisions of the ACD, a Substitute Decision-Maker will have the power to make decisions with respect to a person who gave the ACD in the following areas:

  • health care (other than areas of health care excluded by regulation);
  • residential and accommodation arrangements; and
  • personal affairs.

The ACD does not give the Substitute Decision-Maker the right to deal with the donor’s financial and legal affairs.  This is why an Enduring Power of Attorney is still a very important document to consider as part of an estate plan.

For further information please contact Danny on 8362 6400 or email Danny Beger.  Join our mailing list to receive updates and advice on current issues.

  • Danny Beger

    About the author: Danny Beger

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