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ADVANCED CARE DIRECTIVE

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Sometimes referred to as a “living will” or an “advance health directive”, an Advanced Care Directive a legal document and is essentially a formal advance care planning document which is a critical step in ensuring a persons end of life care.¬†

Advanced Care Directives are treated differently across the Australian States and territories, and so if you require legal advice on how an advanced care directive might help you or a family member, contact our expert lawyers today for a free, honest consultation.

What is an advanced care directive?

Advanced care directives set out your end-of-life plan and contain your needs, values, and preferences. They will generally form the basis for the appointment of a substitute decision-maker, such as an enduring guardian or enduring power of attorney, in the event that you lose the mental capacity to make your own decisions on important personal matters such as health care decisions, future medical treatment decisions, palliative care, mental health care, and treatment refusal preferences (such as resuscitation).

If you or a family member anticipate the loss of mental capacity will require the appointment of a substitute decision-maker in the future, it is well worth considering whether an advanced care directive might be put in place first, in order to ensure the persons preferences are accounted for in any significant personal decisions which are made on their behalf.

Any health professional or family member will be bound by an advanced care directive, provided it is valid. It is also worth considering adding your advance health directive to your My Health Record, which allows treating healthcare professionals who are providing you with treatment, to consult your health record and comply with the directive.

A woman sitting at a desk writing her advanced care directive

How do you make an advanced care directive?

A person is eligible to make an advanced care directive only if they are over 18 years of age and have decision-making capacity, which refers to your capacity to make general personal decisions about important lifestyle and healthcare matters such as legal issues, medical and health care decisions, financial issues and other personal matters.

While an advanced care directive does not need to be completed with the help of a lawyer, it is usually advisable to engage with a lawyer in order to ensure that the directive achieves the result you wish to achieve.

The first step is to speak to a healthcare professional who is able to provide you with formal advice about what your current medical treatment needs are, as well as the potential future health care needs might be.

Generally, advanced care directives will include any of the following specific directives which will determine who is able to make decisions on your behalf, and what kinds of decisions can be made:

  • the person (usually a loved one, family member or close friend) who you would like to appoint as your substitute decision-maker;
  • anything which might be important to you that might inform how you would make the relevant decisions for yourself (i.e. your personal values, goals and preferences); as well as
  • details of any treatment or care that you wish to receive, or would refuse, in the event of any life-threatening illness or injury (such as a “do not resuscitate” directive).

Advance Care Planning Australia has a number of forms and fact sheets available on their website, including an Advance Care Directive Form, which will assist with the development and drafting of a directive. Once the directive has been completed (including your signature and date of the document), relevant parties such as your substitute decision-maker and your doctor should also sign the document itself. This will create a valid advanced care directive that is a legal document and enforceable at law.

It is worth providing copies of the document itself to anybody you feel appropriate, including family members, carers, the substitute decision maker, any relevant healthcare providers such as your hospital, GP, medical professionals, the relevant State Department of Health, and the ambulance service.

Can I change an advance care directive?

You are able to change an advance care directive at any time, and a directive may also be subject to revocation if you no longer require it. It is in fact encouraged that you review the contents of any directive on an ongoing basis, in order to ensure that your goals, values, preferences, health information, as well as your substitute decision-maker and medical treatment requirements are still accurately serviced by the document itself.

How do I choose a substitute decision-maker?

Choosing a substitute decision maker is central to ensuring your advance directive is effective and services your needs, given that person will be able to make important personal decisions on your behalf. Ideally, the decision-maker should be a carer, loved one or family member who is over the age of 18 who you trust. That person must also be available to you and listen to your needs as they might evolve over time.

Importantly, that person must also be comfortable with making significant, often very difficult decisions about your treatment and future health care.

In some circumstance, it may be worth appointing a second substitute-decision maker who will be able to make decisions in circumstances where your primary substitute decision-maker is unable to do so.

The appointment of a substitute decision-maker will be done by filling out the relevant form. This form will differ based on the Australian State or Territory in which you live.

Disclaimer

The above is general legal information and should not be considered legal advice. You should contact our law firm for legal advice tailored to your specific legal matter. The courts deal with matters on a case-by-case basis. It should also be noted that there may be court delays due to COVID-19 and alternative arrangements made for legal proceedings.

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Frequently Asked Questions.

As opposed to criminal proceedings, there are a few advantages to civil claims. First, the standard of proof required to prove that sexual abuse occurred is lower. All that is required is that you show it is more likely than not that the sexual abuse took place. Secondly, civil litigation allows survivors of sexual abuse to seek compensation in the form of damages. These damages are not limited in the way victims support services or national redress schemes are. Thirdly, civil claims can be made against an employer or institution if it can be proven that the organisation was negligent in allowing the sexual abuse to take place. This often increases the compensation available to sex abuse victims.

No. A civil claim is entirely separate to criminal proceedings, and you may prove a civil claim even in the absence of any charges being laid upon the perpetrator of sexual abuse. Such charges or convictions do however assist in establishing a civil claim.

For advice on whether a civil claim might be right for you and for more information on our legal services, please contact our experienced personal injury legal team for a free consultation. We can guide you through how the legal processes might apply to your matter, and whether you may be entitled to make a compensation claim for any physical abuse (including sexual abuse) that you may have suffered.

If a civil claim is successful in establishing liability, a victim of sexual assault is entitled to make a compensation claim for damages for a range of loss and/or damage, provided that loss or damage is also proven. These include pain and suffering, loss of earnings, mental harm, any medical or treatment costs, among others. For a confidential discussion of what compensation you may be entitled to, contact our experienced personal injury lawyers today.

Unfortunately, claimants in respect of historical child sexual abuse under the National Redress Scheme cannot also pursue a civil claim for damages.

This will depend on the time limits applicable in your jurisdiction, the nature of the claim, and the legal processes available to you. If your matter relates to child sex abuse (generally, including physical abuse), no time limits apply to the bringing of a civil compensation claim. 

For personal injury claims for sexual assault, limitation periods will generally be three years from the date of the offence. This can however be complicated by a number of factors such as whether the abuse is isolated or ongoing and where the abuse took place, and we recommend seeking legal advice on whether you remain entitled to make a compensation claim.

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