Advance Care Directives in South Australia: Planning for When You Cannot Speak for Yourself

None of us likes to contemplate a time when we may be unable to communicate our own wishes about medical treatment. Yet illness, accident, or the gradual decline that can accompany old age may leave us in precisely that position. An Advance Care Directive (ACD) is South Australia’s legal mechanism for ensuring that your voice is heard even when you cannot speak — and it is one of the most important documents an adult can have in place.

This article explains what an Advance Care Directive is, how it works in South Australia, who should have one, and what happens if you do not. It is written for a general audience, not legal professionals, because everyone deserves to understand their options.

What Is an Advance Care Directive?

An Advance Care Directive is a legal document in which you record your wishes, values, and instructions regarding your future health care, personal care, and end-of-life decisions. You may also use it to appoint a Substitute Decision-Maker who will make decisions on your behalf if you lose capacity.

In South Australia, Advance Care Directives are governed by the Advance Care Directives Act 2013 (SA). The document replaced a range of earlier instruments, including older ‘living wills’ and Medical Powers of Attorney, and created a single, comprehensive form recognised throughout the state health system.

An ACD is not the same as a Will. Your Will speaks after your death. An Advance Care Directive speaks during your life, at a time when you are still alive but unable to make or communicate decisions about your own care.

What Can an Advance Care Directive Cover?

The ACD form in South Australia is intentionally broad. It can address:

• Your values and beliefs, so that health care providers understand what matters most to you;
• Specific instructions about medical treatment you do or do not wish to receive, including resuscitation, mechanical ventilation, artificial nutrition and hydration, and palliative sedation;
• Personal care decisions such as where you wish to live, what food you prefer, and how you would like to be treated day-to-day;
• End-of-life preferences, including your wishes about being kept comfortable rather than having life prolonged by all available means;
• The appointment of one or more Substitute Decision-Makers, and any limitations on the authority you grant them.

An ACD can be as simple or as detailed as you choose. Many people write brief, values-based statements; others provide very specific instructions. Neither approach is wrong — the key is that the document reflects your genuine wishes.

Who Can Make an Advance Care Directive?

Any adult who has decision-making capacity may make an ACD. In South Australia, ‘adult’ generally means a person aged 18 or over, though the Act does make provision for certain persons under 18 in limited circumstances. ‘Decision-making capacity’ means that you can understand the nature and effect of the document you are creating, and you are making it voluntarily and free from undue pressure.

The document must be signed in front of an authorised witness who certifies that you appeared to have capacity and were not acting under duress. Certain categories of people — including close family members and persons who stand to benefit financially from your estate — are not eligible to serve as your ACD witness. This safeguard is designed to protect vulnerable individuals from being pressured into recording wishes that are not truly their own.

Because an ACD must be made while you have capacity, the time to create one is now — not after a diagnosis or injury has already compromised your ability to make decisions. One empathises with those who find the conversation uncomfortable, but the discomfort of addressing these matters in good health is far preferable to the distress of having no plan in place at a crisis point.

Choosing a Substitute Decision-Maker

One of the most important functions of an ACD is the appointment of a Substitute Decision-Maker. This is the person — or persons — who will make decisions on your behalf when you cannot. In South Australia, a Substitute Decision-Maker appointed under an ACD has broad authority, covering both health care and personal care decisions, unless you specifically limit their powers in the document.

Choosing the right Substitute Decision-Maker is not simply a matter of picking whoever loves you most. Consider the following:

• Will this person be willing and able to advocate firmly for your wishes, even under pressure from medical professionals or other family members?
• Will they be available and accessible when decisions need to be made quickly?
• Can they remain calm and focused in a medical crisis?
• Do they genuinely understand and respect your values, even if those values differ from their own?

Important: You should have a thorough conversation with your chosen Substitute Decision-Maker before you finalise your ACD. They should understand your wishes in detail, not merely know that they have been appointed. The document cannot substitute for that personal conversation.

You may appoint more than one Substitute Decision-Maker, either to act jointly (meaning they must agree) or severally (meaning either may act independently). Where joint decision-making is specified, a mechanism for resolving disagreements is essential — otherwise, a genuine impasse could leave healthcare providers unable to act.

What Happens If I Do Not Have an ACD?

If you lose decision-making capacity and have no Advance Care Directive, South Australian law provides a default hierarchy of decision-makers. Under the Advance Care Directives Act 2013 (SA), the hierarchy runs broadly from a spouse or domestic partner, to adult children, to parents, to adult siblings, and so on. A healthcare provider will consult the highest-ranking person available.

The difficulty with relying on this default hierarchy is that it may produce an outcome that does not reflect your actual wishes. Your family may disagree among themselves. The person highest in the hierarchy may be estranged, overseas, or simply not the person you would have chosen. Disputes between family members about the appropriate course of care can be distressing, expensive, and deeply damaging to relationships at an already difficult time.

Without a documented record of your values and wishes, those making decisions must guess. They may guess wrongly. They may also experience significant guilt and burden as a result. An ACD protects not only you but also the people who love you.

In the most serious cases, where no family member is available or where there is an unresolvable dispute, the matter may need to be referred to the South Australian Civil and Administrative Tribunal (SACAT) or the Supreme Court. This is an outcome that virtually everyone would prefer to avoid.

How an ACD Interacts with Your Other Estate Planning Documents

An Advance Care Directive sits alongside your Will and your Enduring Power of Attorney as part of a complete estate plan. It is important to understand how these documents differ:

• Your Will deals with the distribution of your estate after your death. It has no effect during your lifetime.
• Your Enduring Power of Attorney (EPOA) in South Australia authorises your attorney to make financial and property decisions on your behalf. The EPOA does not cover health or personal care decisions — that is the ACD’s domain.
• Your Advance Care Directive covers health, personal care, and end-of-life decisions during your lifetime.

Many South Australians have a Will but no ACD and no EPOA. This is a common and unfortunate gap. A Will alone cannot protect you during a period of incapacity — it only takes effect upon your death. A complete estate plan addresses all three instruments.

Review your Advance Care Directive periodically, particularly after significant life events such as a serious diagnosis, a change in family circumstances, or a shift in your personal values. A document that no longer reflects your current wishes provides far less protection than one that is kept up to date.

Making and Registering Your ACD

The South Australian ACD form is available from SA Health and from qualified legal practitioners. There is no requirement that a lawyer prepare your ACD, but engaging a practitioner experienced in succession and elder law is strongly advisable — particularly where your situation is complex, where you wish to impose conditions or limitations on your Substitute Decision-Maker’s authority, or where you have strong views about specific forms of treatment.

Once completed and witnessed, your ACD should be provided to your Substitute Decision-Maker, your general practitioner, and any specialist medical providers involved in your care. SA Health maintains a register of ACDs that healthcare providers can access in an emergency. Registering your document significantly increases the likelihood that it will be found and acted upon when it matters most.

Conclusion

An Advance Care Directive is an act of generosity toward yourself and toward those who love you. It ensures that your values and wishes guide your care at the most vulnerable times of your life, and it spares your family the anguish of having to make impossible decisions without knowing what you would have wanted.

South Australia’s Advance Care Directives Act 2013 provides a robust and flexible framework for recording those wishes. But the framework is only useful if you engage with it. The best time to make your ACD was years ago; the second-best time is now.

If you do not yet have an Advance Care Directive in place, or if you have one that has not been reviewed for some time, we encourage you to take action. The team at Genders and Partners would be pleased to assist you in creating a document that truly reflects your wishes — and that will be there for you and your family when it is needed most.

Want to Find Out More?

If you would like further advice about Advance Care Directives or any aspect of elder law and estate planning in South Australia, our experienced team is ready to assist.

When it comes to Wills, Probate, Deceased Estates, asset protection and estate planning in Australia, you can trust the oldest law firm in South Australia – Genders & Partners – to guide you through the tough decisions you must make for your family’s future care and welfare.

If you have any questions or would like further information, or a quick phone call to discuss, book a timeslot for a free 15-minute phone consultation.

We can help you to protect yourself and your family. We look forward to being of service.

More Advance Care Directive and Elder Law Resources

• FAQs
• Videos – Advance Care Directives and Planning for Incapacity
• What You Need to Know About Advance Care Directives in South Australia
• What is an Enduring Power of Attorney and Why Do I Need One?
• Wills and Estate Planning – Articles and Resources

All these and many more estate planning topics are available for discussion with the oldest law firm in South Australia. Visit our articles page to explore our complete library of estate planning resources.

DISCLAIMER: This article is intended as general information only and does not constitute legal advice. The law in this area is complex and individual circumstances vary. You should obtain specific legal advice from a qualified practitioner before taking or refraining from any action. Genders and Partners accepts no liability for reliance on this article without such advice.

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Rod Genders is a senior Australian lawyer specialising in trusts, Wills and estate planning, accident compensation, and probate and deceased estate administration in Adelaide and all over South Australia. His boutique specialist law firm, which was founded on 1848, is one of the oldest and most respected in Australia. Rod is also a prolific author and speaker.  Some of his articles and books on Wills, Probate, Trusts, Estate Planning, Asset Protection and Retirement Planning may be found at www.genders.com.au.

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