Accidents, sudden illnesses, or progressive diseases may all be unexpected in our lifetime, but are you prepared to still have some control over your decision-making capacity if a tragedy as such affects you in any way? An advanced care directive (ACD), or often referred to as a ‘Living Will’, is a document that allows you to carry on your decision-making towards your preferences in medical treatment during a time where we may be unable to express them.
Having an ACD is entirely optional. You may prefer not to make decisions for the future but rather have these decisions made at the time the need arises. But often, having a reflective discussion about advance care planning and formally completing an ACD while you are healthy, can prepare all involved – health care professionals, family members and friends alike. It is particularly relevant when considering situations where inappropriate life-sustaining treatment or under-treatment may be applied.
A complying ACD is a legally binding document in most states under statute law (and common law) in relation to the right to determine one’s own medical treatment. When drafting your ACD you may choose to prepare it within your Enduring Guardianship appointment documents, or alternatively have it drafted independently. Regardless of your preference, it pays to seek legal advice.
Documenting an ACD
Before an ACD can be considered to have sufficient authority, there are several conditions that may need to be met:
Specificity, the ACD should be clear and specific enough to guide all involved in relation to both existing conditions as well as future anticipated conditions.
Competence, you should be competent to make decisions about your health care, which can often entail your capacity to comprehend, retain, and weigh up the relevant information (preferably in consultation with health care professionals) and then decide.
Currency, an ACD prepared a long time before it is referred to can still be legally binding if it was made when you were competent, however to make sure it continues to reflect your current intentions it is important to review it on a regular basis.
And, witnessing, it is not essential to have a ACD witnessed, however it may help to confirm your competence at the time of its drafting as well as provide some protection against forgery.
The scope of your ACD may cover: medical treatment preferences; unacceptable situations in which life-sustaining treatment is applied (e.g. severe brain injury); how far treatment should go depending on your condition (e.g. terminal, incurable, or irreversible); nomination of a substitute decision-maker that health care professionals can liaise with in regards to discussions involving treatment decisions; and, other non-medical aspects of care (e.g. ‘creature comforts’ and dietary considerations).
Things to consider
For an ACD to be acted upon, it must be readily available and its contents known at the time decisions need to be made. A simple approach to consider is for the nominated substitute decision-maker, as well as any health care professionals involved, to be given a copy (and any revisions) of the ACD.
The need for an ACD is becoming more important within the next decade as more people are being diagnosed with dementia and cognitive disability than ever before. Although confronting the need for an ACD may be daunting and frightening, it is important to have the power to determine your own medical treatment, even while unable to at the time. If you haven’t completed an ACD or it has been a while since you last reviewed yours, have a think about what you would like to happen in regards to medical treatment if a sudden or progressive disease was to take away your decision-making capacity and act now.
If you are unsure or have questions, please ask for assistance.