By: Formbys Lawyers
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Advance Health Directive
What is an advance health directive?
An advance health directive is a document under the Guardianship and
Administration Act 1990 by which you give directions on your future health care.
It only comes into effect if you are permanently or temporarily unable to make your own decisions.
Why should I have such a directive?
So people who are seriously ill, or unconscious following an accident or otherwise unable to communicate their wishes or treatment required, at the very time when critical decisions need to be made have appointed someone whose decision they trust, authorised to make the decision on their behalf.
‘Treatment’ refers to any medical, surgical or dental treatment or other health care.
Other reasons may include personal experience, religious beliefs or advice from loved ones and it is important to specify the treatments you want, or do not want to receive in the future.
It is wise to make your wishes known now, before any urgent matters arise.
What should I consider before making an advance health directive?
Carefully consider what you would like your medical treatment to achieve in the event you become very ill.
Take into consideration to what extent you would want to go to, to prolong your life, what would you find acceptable for your expectation or required ‘quality of life’ Would you like to refuse a particular treatment.
Who can make an advance health directive?
You may make an advance health directive if you are at least 18 years of age and have full legal capacity.
A person has full legal capacity if he/she is capable of understanding the nature, purpose and
consequences of the proposed treatment. Capacity is always assessed in the context of
the decision that is to be made.
The Mental Health Act 2014 defines a person as having capacity when they:
- understand any information or advice about the decision that is required
- understand the matters involved in the decision
- understand the effect of the decision
- weigh up the above factors for the purpose of making the treatment decision
- communicate the decision in some way.
Under the Mental Health Act 2014, adults are presumed to have capacity unless shown not to.
A child is presumed NOT to have capacity about a decision unless he or she is shown to have
What happens if I don’t have an advance health directive?
If you do not have an appropriate or valid advance health directive, the health professional will seek a treatment decision from the first person on the list who is 18 years of age or older, has full legal capacity and is willing and available to make the decision.
This person is also known as the ‘person responsible’.
If urgent treatment is required to save your life or prevent unnecessary pain, health
professionals can provide this treatment without seeking consent if the health professional is:
- unable to determine if the patient has made an advance health directive containing a treatment decision that is inconsistent with providing the treatment, or
- unable to obtain a treatment decision in respect of the treatment from the patient’s guardian
or enduring guardian or the person responsible for the patient.
However, they will need to seek consent for ongoing treatment once the treatment is no longer
Where an advance health directive does not exist or does not cover the treatment decision required, the health professional must seek a decision for non-urgent treatment, from the first person in the
hierarchy who is 18 years of age or older, has full legal capacity and is willing and available to
make a decision.
- de facto includes same sex de facto relationships.
Will my advance health directive be followed?
If you are unable to make a reasonable judgement about a treatment decision, the treatment
decisions contained in your advance health directive will come into effect.
Subject to some limited exceptions, health professionals are required to comply with your treatment decisions.
What issues can I cover in the advance health directive?
Directions as to treatment you want, or do not want if your condition is terminal, incurable, irreversible or likely to leave you in a condition unacceptable to you.
General directions about a particular treatment you do not wish to have, special medical conditions your health care providers should know about (e.g diabetes and allergy to medications) and any religious beliefs that could affect your treatment.
That only palliative care be given to you if you are in the last stages of an incurable illness, to keep you comfortable and pain-free as possible.
Whether you want particular types of medication intervention to keep you alive in various medical conditions (e.g sever brain damage, coma), such as emergency measures to sustain your heart and lungs, a machine to keep you breathing and artificial feeding.
Formbys can help
This is just one of the important estate planning documents you should consider, make an appointment today with Formby Lawyers to discuss your requirements and ensure your wishes are followed in the event of the unexpected.
Call us on 08 9354 0300 or email us with details of what you require.