Attwood Marshall Lawyers Legal Practice Director Jeff Garrett recently joined Robyn Hyland on Radio 4CRB to discuss how Advance Health Directives and Enduring Powers of Attorney can empower you to take control of your future healthcare decisions by carefully documenting your precise preferences, particularly in end of life situations.
Advance Health Directives vs Enduring Powers of Attorney – what are they and what’s the difference?
Although there is some overlap in the questions asked in an Advance Health Directive and an Enduring Power of Attorney document, the focus and purpose of these two documents are quite different.
An Advance Health Directive primarily deals with a person’s specific medical treatment preferences and instructions for future healthcare decisions, particularly when they are in the final stages of their life. It will allow individuals to express their wishes regarding medical treatments, whether they want ongoing life support if they are in a vegetive state, or if they want to be resuscitated if their heart fails. It can also cover organ donation and other general healthcare and treatment matters if they cannot communicate or make decisions for themselves.
On the other hand, an Enduring Power of Attorney grants someone (the attorney) the legal authority to make financial and medical decisions on that person’s behalf. In Queensland, all decisions for both health-related matters and financial decisions are dealt with in one document, although there are the two streams which can appoint different people to decide on medical and financial matters. In New South Wales, there are two separate documents, a Power of Attorney which only deals with financial decisions, and an Appointment of Enduring Guardian, which deals with health-related matters. Most Australian states and territories have similar documents.
Financial decisions can relate to granting your attorney to pay your bills, manage your financial affairs, sell property or shares, and make bank transactions. Healthcare decisions can relate to the medical treatment you will receive, where you will live, and the type of care you will receive, to name a few.
An Enduring Power of Attorney typically comes into effect when the person granting the power loses their mental capacity to make such decisions for themselves. However, the principal can choose for the authority to be granted immediately, allowing their attorney to make decisions before mental capacity is lost and after.
While an Enduring Power of Attorney covers healthcare decisions, an Advance Health Directive is more specific to medical treatment preferences and instructions.
When you are doing your Will as part of completing your estate plan, it is essential to consider both documents and their purposes, particularly if you have a terminal illness or you are approaching an end-of-life situation. However, it is not necessarily an issue just for elderly people with a terminal illness or those in the twilight of their lives, EVERYONE should have an Enduring Power of Attorney and an Advance Health Directive! You never know when an unexpected injury or illness can affect you.
If you don’t have an Enduring Power of Attorney in place and you lose capacity, the Public Trustee could be appointed to take over your affairs and this could be a disaster for you and your family. Click here to read our latest blog on this issue.
What’s involved in completing an Advance Health Directive?
Completing an Advance Health Directive is a more involved process than that of an Enduring Power of Attorney. The process generally entails the following:
1. Take a look at an Advance Health Directive to understand the types of questions that you will need to consider. Some examples of the types of instructions you will need to provide answers to include:
a) Cultural, religious or spiritual values, rituals or beliefs you would like to consider in your healthcare.
b) What is important to you and what would bring you comfort when you are nearing death.
c) What people you would like (or not like) to be involved in the discussions about your health care.
d) Directions about life-sustaining treatment when you are nearing the end of your life and if you consent to treatments aimed at prolonging your life, including specific directions around CPR, assisted ventilation, artificial nutrition, artificial hydration, antibiotics, and other life-sustaining treatment.
e) Directions about blood transfusions.
2. Visit your doctor to review the document and discuss specific treatments and any effects those treatments may have on you so that you can make an informed decision when drafting the document.
3. Consider who you want to appoint as your attorney for health-related decisions. You should discuss the document and your preferences with your chosen attorney so that they can advocate for you and better understand your wishes.
4. Complete the Advance Health Directive. Although there are versions of the document available online, it is strongly recommended that you obtain trusted legal advice and assistance to complete the document and ensure it is prepared accurately. An experienced estate planning lawyer can guide you through each question and discuss the information you need to consider.
5. A section of the form needs to be completed by your doctor, who will assess your capacity to make the decisions stipulated in the Advance Health Directive. You will also need to sign the document following your doctor’s signature in the presence of an eligible witness.
6. Once the document is executed, upload a copy to your My Health Record. To do so, sign in to my.gov.au and select “My Health Record” from the ‘Your Services’ section on the home page. Having your Advance Health Directive uploaded to your My Health Record allows an additional way for you to let healthcare providers know your wishes if you cannot speak for yourself. It is also beneficial for family members and loved ones so that they can be made aware of your wishes. This can help reduce the anguish loved ones may face when decisions need to be made, without people doing whatever possible to keep someone alive if that is not what the person wanted.
Does an Advance Health Directive cover voluntary assisted dying?
An Advance Health Directive, while encompassing important end-of-life choices, does not allow for instructions about voluntary assisted dying. The Voluntary Assisted Dying Scheme is governed by its own stringent procedures and conditions that must be carefully adhered to for those individuals who are eligible and seeking access to the scheme.
Within an Advance Health Directive, individuals can express their preferences regarding end-of-life care, such as the desire for or against medical interventions to prolong life, specific instructions for palliative care, limitations on resuscitation, and decisions on withholding medication to avoid life prolongation. Additionally, it allows individuals to articulate their wishes for comfort and support as they approach the end of life.
Reviewing your Advance Health Directive
Like other estate planning documents, such as your Will and Enduring Power of Attorney, an Advance Health Directive should be reviewed every three years or when significant life and health changes occur.
It may not necessarily be that end-of-life choices have changed, perhaps who you have appointed as your attorney needs to be reviewed, especially if they have lost capacity or are not well enough to act due to advancing age or illness.
If you have an Advance Health Directive in place and want to change the document, it typically involves reviewing the existing directive to identify which sections need modification, consulting with an experienced estate planning lawyer who can guide you through the process and ensure the changes are executed correctly, and depending on the extent of the changes, creating an amendment to the existing Advance Health Directive, or executing a new document.
It is essential to ensure that all legal requirements and formalities are executed when making changes to these documents, including ensuring signature and witness protocols are followed. Failure to comply with such compliance could invalidate the document.
Once you have your revised or new document, make sure you replace the document on your My Health Record so that it is up to date. It is also important to provide a copy of the most recent document to your spouse, children, or chosen attorney so that they know of your instructions.
Attwood Marshall Lawyers – helping you plan for the future and preserve your wishes
You don’t need to have a terminal illness or be of the older generation to put an Advance Health Directive and Enduring Power of Attorney in place. Everyone, no matter their age or health status, should consider these important legal documents to ensure their wishes are documented and their health providers and loved ones have clear instructions to refer to when these situations arise.
These documents form part of your overall estate plan and should be considered when drafting your Will. As with all essential legal documents, it is imperative to get the right advice to know how the document should be drafted and utilised to protect your best interests.
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 and drafting Wills, Enduring Powers of Attorney, and Advance Health Directives. 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 health situations.
To discuss your estate planning needs, please don’t hesitate to contact our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email firstname.lastname@example.org or free call 1800 621 071.