Talking about death makes most people uncomfortable. Let’s face it, no one likes to think about their own mortality or that of a loved one. But unfortunately, death is a part of life. Although you cannot control every part of your life, or death, there are certain steps you can take to plan for the future and your end-of-life care, explains Attwood Marshall Lawyers Wills and Estates Senior Associate, and Accredited Aged Care Professional Debbie Sage.
Difficult conversations and decisions
Thoughts about ageing, or death, can cause people a lot of anxiety, but it really doesn’t need to be that way.
There can be something powerful about being proactive and taking control over these aspects of your life in advance and making sure you get to have your say about your end-of-life care and what will happen in the future when you reach that stage in your life.
We see it all too often where a lack of planning and discussions about death become a real barrier to the quality of end-of-life experiences.
All Australians should have an Advance Health Directive so that you or your loved ones are not having to make these decisions in an emergency situation without enough time for proper consideration.
A study was undertaken by Advance Care Planning Australia in 2017 which showed that only 29.8% of the health records that were put forward as part of the study contained an Advance Health Directive.
The prevalence of Advance Health Directives was highest in residential aged care facilities compared to general practices and hospitals that took part in the study.
It was also noticed that more women than men have documented their end-of-life wishes, with the use of Advance Health Directives being slightly higher in rural and regional areas of Australia compared to metropolitan areas.
Perhaps bringing some humour into the discussion can help. There is a very funny Seinfeld episode where Kramer sees a lawyer with his proposed attorney (Elaine) about a “living Will” (as it is known in the USA). Although we should never trivialise such an important issue, if something like this hilarious scene with the lawyer can get people talking about these issues, then we are all for it!
How an Advanced Health Directive can give you peace of mind
An Advance Health Directive is a document that specifies what healthcare treatments or actions you would like to have or refuse, should you be in a position where you are so seriously ill or injured and unable to make or communicate your decisions about your care and/or treatment at that time.
Anyone over the age of 18 years of age, with decision-making capacity, can complete an Advance Health Directive, just as they can make a Will and an Enduring Power of Attorney.
These three documents are the most important tools that everyone should have in their “life tool kit”.
Young, healthy people may think they do not need to worry about this sort of thing, but the unexpected can happen, and does happen, at any age. We have all seen it or experienced it in some form or another.
For younger people, it really comes down to thinking about who they would want to make decisions for them if they can’t make decisions for themselves, particularly in the scenario of if that young person suddenly falls ill or suffers an emergency situation.
For someone who may have an existing illness or be in a later stage of their life, seeking information from their treating doctors as to what they can expect from their illness is a good place to start when it comes to discussions about advance care planning and making important decisions in that regard.
It is one thing to have these conversations with your loved ones and there are many people that do share their wishes and intentions with their families. But it is a whole other issue to formally document your wishes to ensure they are upheld.
It can be particularly important if you do not have an advance health directive to ensure you have one if you are about to be admitted to the hospital if you have a medical condition that is likely to affect your ability to make decisions, or if you have a chronic medical condition that could cause serious complications, such as diabetes, asthma or heart and kidney disease, just to name a few.
It is about having control over the care you receive and ensuring that your preferences and wishes are known and respected. It is also important for the loved ones who find themselves in an unexpected situation in an emergency event having to make decisions for their loved one and not knowing what that person would have wanted.
The process of preparing an Advance Health Directive
Firstly, people need to think about what it is they want. The best place to start is to read an Advance Health Directive document which are readily available on the internet, as this will help you understand the types of questions you should consider. Do you want a blood transfusion? Do you want to be resuscitated? What kind of treatment would you want to receive in certain situations? The documents available go into quite a lot of detail to help you consider each of the different types of scenarios where this document may be required (such as if you are suffering a life-threatening illness, in an accident, or a coma).
The next step is to talk to your doctor and go through the document with them, especially if you want to find out about specific treatments and any effects those treatments may have on you.
Now is a good time to also consider who you might want to appoint as your attorney for health-related decisions and make sure you talk to them about this document and what your preferences are as ultimately your attorney will be your voice and should advocate for you if required.
The next step is to then complete the Advance Health Directive document.
People can download versions of an Advance Health Directive online or purchase DIY documents from newsagents or post offices etc. However, we strongly recommend that you get this document done professionally as it is an extremely powerful document that should be completed once advice is obtained to ensure the document is prepared in accordance with your wishes.
When you get a professional to assist you with this type of document, they will guide you through each question and discuss any information you need to consider, ensuring you are making an informed decision.
At this stage, a section of the form will need to be completed by your doctor who will also assess your capacity to make sure you can sign and make the decisions stipulated on the Advance Health Directive.
After the doctor signs the document, you will also need to sign the document in the presence of an eligible witness.
Once the document has been properly executed, it is important to store the document somewhere safe. If you have had it created with a lawyer, then they will usually offer to store it in their strongroom with your Will where you can obtain as many certified copies as you need and be assured that the original is being kept safe.
If you choose to keep it at home, we strongly recommend that you keep the original document in a safe place where it cannot get lost or destroyed, and keep a copy with your attorney, your solicitor and any other health providers such as your Doctor/GP
You should also let your family know you have made the document and where they can find it in the event of an emergency.
Voluntary Assisted Dying Laws vs Advance Health Directives
Voluntary Assisted Dying and Advance Health Directives are not the same. Prior to voluntary assisted dying being proposed in Australia, an Advance Health Directive was the closest thing you could get to declaring what your preferences were about your end-of-life care, including the refusal of care, if you are suffering from a terminal illness or seriously injured.
It is important to note that you cannot request voluntary assisted dying by way of an Advance Health Directive.
Advance Health Directives in Queensland have legal effect under the Powers of Attorney Act 1998 (“The Act”).
The key difference is that an Advance Health Directive will only operate or be used when you do not have the capacity to decide for yourself or communicate your wishes. It applies to the situation you are in at that moment in time.
If someone has impaired capacity, then they are unable to request voluntary assisted dying.
If someone is eligible for voluntary assisted dying and requests this, and their wishes conflict with what they have instructed in their Advance Health Directive, then that is fine. In order to be eligible for voluntary assisted dying, you must have the capacity to make the request, which means if you have capacity, then your Advance Health Directive is not in operation.
This also ensures that an Attorney under an Enduring Power of Attorney, who may be acting for someone regarding their health matters, cannot take the steps necessary to end another person’s life under the Voluntary Assisted Dying legislation. This is because an attorney for health matters can only make decisions if the person they are acting for does not have the capacity to make their own decisions, and the proposed Voluntary Assisted Dying legislation only allows a person with decision-making capacity to be eligible for the scheme.
The Voluntary Assisted Dying legislation and how this will work when it commences in Queensland
Voluntary Assisted Dying laws have been passed in five of Australia’s six States, including Victoria and Western Australia. These laws have been passed but have not yet commenced in Tasmania, and are expected to commence in October 2022.
South Australia is set to commence their voluntary assisted dying legislation in early 2023, along with Queensland on the 1st January 2023.
Voluntary assisted dying refers to the assistance provided by a health practitioner or another relevant person to end someone’s life under strict conditions.
The person applying must have the capacity to decide to access the scheme and must follow a very strict process to determine if they are eligible. It means they must be at least 18 years old, not be coerced by anyone in making the request, and must be diagnosed with a disease or illness that is advanced, progressive and causing intolerable suffering with a life expectancy of less than 12 months. They must also fulfil the residency requirements or have an approved exemption.
The applicant must make three requests – the first request is made to an approved medical practitioner, followed by a second request to another approved medical practitioner, and the third request is then made to a coordinating practitioner.
There are certain time limits that apply to how many days there must be between the first and last request unless there is an exemption that applies.
The doctor who receives the first request can either accept or refuse the request and will also complete the first assessment of the individual to determine if they are eligible for the scheme.
Attwood Marshall Lawyers – an industry-leading law firm that specialise in estate planning
Important estate planning documents such as a Will, an Enduring Power of Attorney, and Advance Health Directive are vital to put in place to ensure your wishes are legally documented and your instructions can be followed if something unexpected happens.
Attwood Marshall Lawyers are proud to have one of the largest and most experienced Wills and Estates departments, with specialist lawyers who practice exclusively in estate planning, estate litigation and estate administration. Our lawyers are dedicated to helping people plan, preserve and protect their wishes, working closely with clients to formulate the most appropriate plan to suit their personal, financial, and family situations.
We want to help everyone get their most important legal documents updated so that you can have peace of mind and protect your estate, yourself, and your family.
Our lawyers are available for appointments at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney and Melbourne.
Book an appointment online now by clicking here, or contact Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, mobile 0423 772 555 or email dtolley@attwoodmarshall.com.au to discuss your needs.
Read more:
Estate planning for young people: Why Generation Z and Millennials should write a Will
Dying to Know Day – let’s talk about death
Mental capacity issues in day to day living and what can happen if you don’t have an Enduring Power of Attorney
