This article was written by Grace Blake Solicitor at W & G Lawyers.
Most of us assume we will always be able to speak for ourselves when it comes to medical treatment. Illness, injury or an accident can change that in an instant. An advance health directive is one of the most practical documents you can put in place to make sure your wishes are respected, even if you lose the ability to communicate them yourself.
What an advance health directive is
An advance health directive is a written document in which you give directions about your future health care. People sometimes describe it as a living will, because it speaks for you at a time when you cannot speak for yourself. In Queensland it can do two things. It can record directions about the treatment you would or would not want, and it can appoint one or more people you trust, known as attorneys, to make health care decisions for you if your directions do not cover the situation that arises.
A directive only operates while you lack the capacity to make the particular decision yourself. While you have capacity, you continue to make your own choices about treatment, and your directive sits quietly in the background. Losing capacity does not cancel the document. It continues until you revoke it or until your death.
Why put one in place
Without a directive, your family may be left guessing about what you would have wanted, and doctors and family members may disagree about the best course of treatment. A directive gives your loved ones and your treating doctors a clear record of your wishes, and it eases the burden on family members who would otherwise have to make difficult decisions without knowing what you would have preferred.
Who can make one
You may make an advance health directive if you are an adult and, at the time you sign, you understand the nature and effect of the document and are making it freely and voluntarily. Broadly, that means understanding what each direction is likely to do, that the directive will only be used once you lose capacity, that you can revoke it while you still have capacity, and that once you lose capacity you will not be able to oversee how it is applied. It is best to put a directive in place while you are well, rather than waiting until a health crisis makes these conversations more difficult.
What you can include
1. General health care directions
You may set out your wishes about medical treatment generally, such as your preferences around pain relief and particular procedures you would or would not want.
2. Special health care directions
Some kinds of treatment cannot be decided by an attorney or a guardian at all. In Queensland this includes the donation of tissue while you are alive, sterilisation, termination of a pregnancy, and participation in special medical research or experimental treatment. If you want your wishes on those matters to carry legal weight, the directive itself must contain the direction, since an attorney cannot make those decisions and the tribunal would otherwise have to decide.
3. Appointment of an attorney for health matters
You may appoint one or more people to make health care decisions for you if you lose capacity and your directions do not deal with the situation.
4. End of life wishes
Many people use a directive to record whether they wish to receive life-sustaining treatment, such as resuscitation, assisted ventilation or artificial feeding, in particular circumstances.
The limits on end of life directions
A direction to withhold or withdraw life-sustaining treatment does not operate in every situation. Broadly, it may only take effect where you have a terminal or irreversible condition and two doctors expect you to die within a year, where you are in a persistent vegetative state or permanently unconscious, or where your illness or injury is so severe that there is no reasonable prospect of recovery without ongoing life support, and in each case only where you are unlikely to regain capacity. A direction to withhold artificial nutrition or hydration may also require that continuing it would be inconsistent with good medical practice.
A directive cannot authorise anything that the criminal law prohibits, so it is not a vehicle for euthanasia, and a request for voluntary assisted dying cannot be made through a directive, since that is governed by separate legislation and must come from you personally. A treating health provider may also decline to follow a direction that is uncertain, that is inconsistent with good medical practice, or that has been overtaken by changes in your circumstances or in medicine, although where you have appointed an attorney the doctor is generally expected to consult that attorney before treating a direction as uncertain. Clear, specific wording, discussed with your doctor, reduces the risk of a direction being set aside.
Choosing your attorney
An attorney for health matters must be an adult who is not your paid carer or health provider. Choose someone you trust to advocate for your wishes, who is likely to be available when needed, and discuss your wishes with them beforehand. You may appoint more than one attorney and specify whether they must act jointly or separately, bearing in mind that joint decisions could cause delay in an urgent situation.
One practical difference between a direction and an attorney’s decision is worth understanding. Your own direction to stop life-sustaining treatment operates in the circumstances described above. An attorney’s consent to stopping such treatment, by contrast, may only operate where your treating health provider considers that continuing the treatment would be inconsistent with good medical practice. If you hold strong views about end of life care, recording them as directions rather than leaving them to your attorney’s judgment may give them more force.
Signing requirements
A doctor or nurse practitioner must sign a certificate confirming that you appeared to have the capacity to make the directive. That person cannot be your witness, your attorney, a relative of you or your attorney, or a beneficiary under your will. Your signature must also be witnessed by a justice of the peace, commissioner for declarations, notary public or lawyer, and the witness likewise cannot be your attorney, a relative, your paid carer or health provider, or a beneficiary under your will. Each attorney you appoint must sign the document to accept the appointment.
In practice this means your directive is unlikely to be completed in a single sitting. A longer appointment with your regular doctor, who already knows your history, is a good opportunity to talk through what the medical terms in the document mean. Some practices charge a fee for completing the certificate.
How a directive differs from an enduring power of attorney
The two documents are often prepared together, and they are easily confused. An enduring power of attorney may cover your financial matters and your personal matters, which include health care. An advance health directive is confined to health care, but it can do something an enduring power of attorney cannot. It can record binding directions, including directions about special health care, rather than simply handing the decision to someone else.
Where both documents exist, your directions in the advance health directive take priority over any decision an attorney would otherwise make, whether that attorney was appointed under the directive or under the enduring power of attorney. If both documents appoint attorneys for health matters and the directive does not cover the situation, it is generally the attorney under the more recent document who acts, and a later document revokes an earlier one to the extent that the two are inconsistent. For that reason it is sensible to have both documents prepared together, or reviewed together, so that the appointments line up.
The formalities also differ, since an enduring power of attorney needs an eligible witness but no medical certificate. Under both documents an attorney’s power over health matters begins only once you lose capacity, and neither document can give an attorney power over special health care.
Storing and sharing your directive
Queensland has no register for advance health directives, so a directive that nobody can find may be of little use when it is needed. You may upload a copy to your My Health Record, which allows treating doctors and hospital staff to access it in an emergency, including at a hospital you have never attended. Give copies to your attorney and your regular doctor, tell your close family where the original is kept, and take a copy with you if you are admitted to hospital or move into residential care. If we prepare your directive, we can also keep a copy on your file.
Reviewing and revoking
Your circumstances, relationships and views on treatment may change over time. Review your directive periodically, particularly after a change in health, a new diagnosis or a change in your family circumstances. You may revoke a directive in writing at any time while you have capacity, and a new directive generally replaces an earlier one to the extent that the two are inconsistent. Marrying, entering a civil partnership, divorcing or ending a civil partnership may also cancel the appointment of an attorney who is not your new spouse, or who is your former spouse, so those events are a prompt to revisit the document. Replace the copies you have given out, including the My Health Record version, so that nobody acts on an out of date document.
Where the tribunal fits in
The Queensland Civil and Administrative Tribunal, commonly called QCAT, shares jurisdiction with the Supreme Court over advance health directives and enduring powers of attorney. It is the forum to which you, a family member, your attorney, your treating health provider, the Public Guardian or any other person with a genuine interest in your welfare may apply if something goes wrong.
The tribunal may declare whether a person has capacity, decide whether a directive or power of attorney is valid, remove an attorney, change the terms of a document, revoke all or part of it, and give directions or advice about how a document should be interpreted or applied. An attorney who follows the tribunal’s directions is generally protected. Where an adult has no directive and no attorney, or the existing arrangements are not working, the tribunal may appoint a guardian for health matters, and it may make an interim order for up to three months where there is an immediate risk of harm. The tribunal is also the body that consents to most special health care where the directive is silent. There is generally no filing fee for these applications.
Before matters reach the tribunal, the Office of the Public Guardian may investigate complaints about an attorney, mediate disagreements between attorneys, family members and health providers, suspend an attorney’s powers for a limited period, and, where a disagreement about a health matter cannot be resolved, make the decision itself.
What if you do not have a directive
If you lose capacity without a directive, a health decision is made by the first of the following who is available. A guardian for health matters appointed by the tribunal, then an attorney for health matters under your most recent enduring power of attorney, then your statutory health attorney.
Your statutory health attorney is the first readily available and culturally appropriate adult in the following order. Your spouse, including a de facto or civil partner, if the relationship is close and continuing. Your unpaid carer. A close friend or relative who is not your paid carer or health provider. If there is nobody in those categories, the Public Guardian will act as your statutory health attorney.
How W & G Lawyers can help
Putting an advance health directive in place is a meaningful way to protect your autonomy and provide clarity for your family and treating doctors during what could be a difficult time. If you would like to discuss preparing a directive, reviewing an existing one, or preparing an enduring power of attorney alongside it, our team at W & G Lawyers would be pleased to assist.
Helpful Resources
References
- Powers of Attorney Act 1998 (Qld), ss 6C–6D, 29, 31, 35–37, 42, 44, 48–53A, 63, 100–103, 109A–118 and Schedule 2
- Guardianship and Administration Act 2000 (Qld), ss 11B–11C, 12, 14, 42–43, 63, 63A, 65–68, 81–82, 114B, 115, 129, 138, 146 and Schedules 2 and 4
- Public Guardian Act 2014 (Qld), ss 12, 19, 34–35
- Queensland Government, Advance health directive (Form 4) and explanatory guide; Understanding advance health directives and Making and ending an advance health directive (qld.gov.au)
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This article is general information only and does not constitute legal advice under Australian law. For advice specific to your situation, please contact W & G Lawyers. For further details, please click here to view our disclaimer.