Articles / Estate planning
By Manal Amro, LLB, GDLP, MBus, LLM
Principal Solicitor, PA Law Pty Ltd
Last reviewed:
An Advance Care Directive in South Australia records your wishes about future healthcare, accommodation and personal matters. It can also appoint substitute decision-makers to act when you have impaired decision-making capacity for the particular decision. It does not authorise financial decisions or replace your will. [1] [2] [3]
If you became seriously unwell tomorrow, would the people close to you know what mattered most to you? They may know your routines and preferences, but still feel uncertain about difficult care decisions.
As our short Advance Care Directive video explains, planning ahead can help your family understand your wishes. Here are seven questions to work through before completing the document.
Start with your values and everyday priorities. Consider what gives your life meaning, the relationships you want maintained, and any cultural or religious practices you want respected.
You might want decision-makers to consider staying near family if you need supported accommodation, maintaining contact with particular people, or including spiritual support in your care. Explain why these things matter to you. Clear context helps others understand your preferences when a situation arises that you have not specifically described.
These are prompts for discussion, not ready-made legal instructions. Your document should reflect your circumstances and wishes.
An ACD comes into force when properly witnessed. However, a substitute decision-maker or health practitioner may use it only when you have impaired decision-making capacity for the particular decision at that time. [3]
Signing an ACD does not hand over every decision. You must be supported to make the decisions you can still make, and capacity can change over time or differ between decisions.
Physical difficulty speaking is not automatically the same as being unable to decide. Someone who can communicate through writing, gestures or another method may still be able to make their own decision.
Think about who understands your wishes, can ask questions under pressure and would be willing to put your preferences ahead of their own. Speak to that person before naming them.
Useful questions include:
Legal eligibility requirements apply, and a paid professional carer cannot be appointed. You can also make an ACD that records your wishes without appointing a substitute decision-maker. [2]
Not every statement in an ACD has the same legal effect. A refusal of particular healthcare can be a binding provision. If it applies only in specified circumstances, those circumstances matter. Other wishes and preferences guide decisions but are classed as non-binding provisions. [4]
A binding refusal is subject to the Act and its application to the situation. An ACD cannot guarantee that a requested treatment will be provided or require unlawful action. [5]
If you are considering refusing treatment, discuss the medical implications with your treating health professional and obtain advice about the wording. Broad phrases such as “no heroic measures” can leave important questions unanswered. You do not have to include a treatment refusal simply because the form allows one.
These documents deal with different parts of your planning. An ACD does not replace an enduring power of attorney or a will.
| Document | Main purpose |
|---|---|
| Advance Care Directive | Future healthcare, accommodation and personal decisions when the relevant capacity requirements are met. |
| Enduring power of attorney | Authority for another person to deal with legal and financial affairs during your lifetime, according to its terms. |
| Will | Directions for your estate after your death, including the appointment of an executor. |
For example, authority to make a healthcare decision under an ACD does not, by itself, allow that person to access your bank account or sell your home. Consider your documents together so each covers its intended role. Read more about our enduring power of attorney services.
In South Australia, you must be an adult who understands what an ACD is and the consequences of making it. Use the required South Australian form and make your decisions voluntarily. If there are concerns about understanding, communication or pressure from someone else, obtain advice before proceeding. [6]
If you appoint substitute decision-makers, each must complete and sign their acceptance before you sign in front of a suitable witness. Their acceptance signatures do not need witnessing. [7]
Your witness must meet the eligibility requirements. An appointed substitute decision-maker, a person with an interest in your estate or your treating health practitioner cannot witness your ACD. Follow the current form instructions and check the witness’s suitability before arranging signing.
A completed document is most useful when the people involved in your care can access it. Give certified copies to your substitute decision-makers and doctor, and let them know where the original is kept. [2]
Make time to discuss the document with them. Reading it together can reveal questions that are easier to resolve now than during a crisis.
Review your arrangements when your health, relationships or preferences change. If changes are needed, seek advice about preparing a replacement and ensuring the people who hold copies receive the current version.
No. Unexpected illness or injury can affect adults at any age. An ACD can be relevant before retirement or a diagnosis, provided you meet the requirements for making it.
Your family cannot make your ACD on your behalf. They may support you, but the document must express your own decisions and you must meet the requirements for making it. If you can no longer do so, obtain advice about the decision-making arrangements that may be available. [2]
PA Law helps clients in Gawler, Adelaide and across South Australia prepare and review Advance Care Directives and consider how they work alongside wills and enduring powers of attorney.
Bring any existing documents and a short list of the people and preferences you would like to discuss. We can help you work through the legal requirements and next steps.
Arrange an appointment with PA Law, call 0431 614 696 or email manal@palaw.au. You can also explore our Advance Care Directive services.
This article provides general information about South Australian law and is not legal or medical advice. Obtain advice suited to your circumstances and discuss treatment choices with your health professional.
Manal Amro, LLB, GDLP, MBus, LLM is the Principal Solicitor of PA Law Pty Ltd. She holds a Bachelor of Laws, Graduate Diploma in Legal Practice, Master of Business and Master of Laws. Based in Evanston South, she assists clients in Gawler, Adelaide and across South Australia with estate planning, property and commercial legal matters.