The End of Life Debate: Planning for the Future When the Future is Uncertain

Advance Care Directives, Voluntary Assisted Dying and Your Estate Plan in South Australia

Why End-of-Life Planning Matters

None of us chooses the circumstances of our death. What we can choose is how those circumstances are managed, and who has authority to make decisions on our behalf if we can no longer make them ourselves.

End-of-life planning is not a morbid obsession. It is an act of love and responsibility towards the people who will be called upon to care for us at what will inevitably be a painful and stressful time for them. Without proper documents in place, family members may disagree, healthcare providers may be uncertain, and courts may need to intervene.

The question is not whether you will face health challenges as you age. The question is whether the people you love will have the legal authority, and the guidance, to act on your behalf when that time comes.

Part 1: Advance Care Directives

An Advance Care Directive (ACD) is a legal document in which a person with decision-making capacity records their wishes, preferences and instructions about future healthcare, residential and personal matters, to take effect if they later lose capacity.

In South Australia, ACDs are governed by the Advance Care Directives Act 2013 (SA). The ACD regime provides a single, comprehensive document that performs multiple functions.

What an Advance Care Directive Can Do

A properly executed ACD in South Australia can:

• Appoint one or more Substitute Decision-Makers who have authority to make healthcare, accommodation and personal decisions on your behalf
• Record your binding instructions about specific types of medical treatment you consent to, or expressly refuse, in specified circumstances
• Record your preferences and values to guide your Substitute Decision-Makers and healthcare providers
• Specify your wishes regarding organ and tissue donation
• Express your preferences about where you wish to live and how you wish to be cared for in the final stages of life

The Distinction Between Binding Instructions and Preferences

An ACD can contain both binding instructions and non-binding preferences. Binding instructions must be followed by healthcare providers (subject to limited exceptions). Preferences are taken into account but do not bind providers to the same degree.

Part 2: Voluntary Assisted Dying in South Australia

UPDATED LEGISLATION: The Voluntary Assisted Dying Act 2021 (SA) commenced in South Australia on 31 January 2023. South Australia is now one of seven Australian jurisdictions in which voluntary assisted dying is lawfully available.

Who Is Eligible?

Voluntary assisted dying (VAD) under the Act is available only to persons who meet all of the following eligibility criteria:

• Australian citizen or permanent resident aged 18 years or over
• Ordinarily resident in South Australia for at least twelve months before making their first request
• Diagnosed with a disease, illness or medical condition that is advanced, progressive and will cause death
• The condition is causing suffering that cannot be relieved in a manner acceptable to the person
• The person must have decision-making capacity in relation to voluntary assisted dying

The Interaction with Advance Care Directives

Voluntary assisted dying cannot be pre-authorised in an Advance Care Directive. A request for VAD must be made personally by the eligible person while they retain decision-making capacity. A Substitute Decision-Maker cannot request or consent to VAD on another person’s behalf.

An ACD remains vitally important even where a person is considering or has accessed VAD, because the ACD governs decisions about all aspects of medical care during the period before VAD occurs.

Part 3: Enduring Power of Attorney – Financial and Legal Matters

An Advance Care Directive deals with healthcare, accommodation and personal decisions. It does not deal with financial and legal matters. For those, a separate document – an Enduring Power of Attorney (EPOA) – is required.

An EPOA appoints an attorney to manage your financial and legal affairs if you lose decision-making capacity. In South Australia, EPOAs are governed by the Powers of Attorney and Agency Act 1984 (SA). Without an EPOA, a family member may need to apply to SACAT for a financial administration order – a time-consuming and expensive process that could have been entirely avoided.

Part 4: Integrating End-of-Life Planning with Your Will

Your Will, your Advance Care Directive, your Enduring Power of Attorney and your superannuation death benefit nominations are four components of a single integrated plan. Some of the most common – and most costly – planning failures arise from documents that are inconsistent with each other, or that have been updated in isolation without considering the impact on the rest of the plan.

A Will that has not been reviewed since the ACD legislation was updated, or that was prepared before the introduction of voluntary assisted dying, may reflect preferences and assumptions that no longer reflect the person’s wishes or the current legal landscape.

Want to Find Out More?

If you would like further advice about Advance Care Directives, Enduring Powers of Attorney, or integrating end-of-life planning into your estate plan, contact our friendly team.

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 End-of-Life and Advance Care Planning Resources

• FAQs
• Videos – Powers of Attorney and Advance Directives
• Articles about Advance Care Directives
• Articles about Enduring Powers of Attorney
• Articles about Wills and Estate Planning

All these and many more end-of-life and advance care 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.