Living WIlls – what are they?

An “Advance Care Directive” (also referred to as a Living Will) is a document stating the specific medical treatment that the patient does or does not wish to receive. In order to make an Advance Care Directive a person must have legal capacity, and the document must set out the medical treatment that they want to receive  in a clear and unambiguous way

All jurisdictions in Australia have enacted legislation enabling a person to register a refusal to accept medical treatment or appoint another person to carry out their wishes.

Advance Care Directives enable you to set out the medical care you wish to receive when medical technology might be required to keep you alive. Importantly as you may lack the capacity to make decisions about your medical treatment the person or persons you appoint as substitute decision-makers, family members and significant others must be informed of your medical wishes.

In the absence of an advance care directive consent for medical treatment must be considered on a case by case basis and may be given by:

the patient if they have legal capacity;

the patient’s guardian;

the spouse of the patient (if they have capacity),

by the patient’s carer;

or by a close friend or relative of the patient.

A persons capacity to make health care decisions, must be carefully considered as what appears to be valid consent given by a capable adult may be the result of undue influence, or of some other circumstance.

As consent for treatment is considered on a case-by-case basis if an unconscious patient presents at a hospital, and it is not practicable to obtain the consent of the next of Kin, or there is no record that the patient does not wish the treatment to be carried out they may be administered emergency medical treatment that is reasonably necessary.

In most circumstances it would be assault to administer medical treatment prohibited by the advance care directive.

In order to create an Advance Care Directive a person needs to carefully consider their wishes, and preferences for future health care, end of life, and the appointment one or more Substitute Decision-Makers to make these decisions if you are unable to do so yourself.

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