Advance Care Directives in South Australia: Who Speaks for You if You Can’t?

Earlier this month, Centennial Park in Adelaide hosted the third SA Death Festival, and the Advance Care Planning workshop was fully booked, according to the festival organisers on The Adelaide Show podcast. That tells me something. Plenty of South Australians want to talk about how they would like to be cared for when they cannot speak for themselves, and they want a clear way to put it in writing.

What an Advance Care Directive covers in South Australia

An Advance Care Directive is a legal document that records your wishes for future health care, where you live and other personal matters, for the day you cannot make those decisions yourself. Any adult with decision-making capacity can make one, and nobody can make one on your behalf.

Here is what it can do:

• Record your values, preferences and instructions about health care, accommodation and personal affairs.
• Appoint one or more family members or friends as substitute decision-makers, who then stand in your shoes. The Public Advocate and paid professional carers cannot be appointed.
• Refuse particular health care. Those refusals are legally binding.
• Take effect as soon as it is signed and witnessed, even if you appoint nobody.

An Advance Care Directive has its limits. It does not cover financial, property or legal matters. For those you need an enduring power of attorney, a separate document that sits alongside your will.

Since 1 July 2014, the Advance Care Directive has replaced the old Enduring Power of Guardianship, Medical Power of Attorney and Anticipatory Direction. Those older documents remain valid, and so do directives made on the form used before it was updated on 1 March 2024.

A conversation worth having, and why it feels easier once you start

In episode 441 of The Adelaide Show, host Steve Davis (who interviewed myself and Doug Reed upon his retirement earlier this year, sat down with two of the people behind it. One of those guests, Catherine Ooi, who is researching death anxiety for her PhD, told listeners that two people with the same diagnosis can feel very differently about dying, and that accepting death does not mean the fear disappears. Catherine also described how a person nearing the end of life may hold on because they worry about leaving their family, until someone reassures them that everyone will be okay.

An Advance Care Directive speaks to that worry. When your wishes are written down, the people who love you do not have to guess at them, and they do not have to carry big decisions alone at the hardest moment. For many families, that is the real gift of an Advance Care Directive.

What is at stake if your wishes stay unwritten

We understand that this is a tender subject, and it is natural to want to leave it for another day. The trouble is that illness and accidents rarely give notice. Without a directive, the people closest to you may face some difficult moments:

• Guessing which treatment you would have wanted.
• Disagreeing with each other at an already painful time.
• Seeing you receive care you would have refused.
• Needing the South Australian Civil and Administrative Tribunal to step in when nobody has clear authority to decide.

Our practice has helped families through that tribunal process numerous times. It is always unfortunate to watch a family work through an administrative application while they are already coping with the heartbreak of a loved one becoming so ill, because a directive made earlier could so easily have avoided it.

For families on the Yorke Peninsula and in the Mid North, there is a practical side too. A serious health event can take you to a hospital where the staff have never met you. South Australia has no register of Advance Care Directives, so your paperwork has to travel with you, and the right people need to hold copies before they are needed.

A simple checklist to put your directive in place

Take it one step at a time. Each tick is one less thing for your family to worry about later.

• Think about what matters to you. Consider what a good day looks like for you. Unless you hold particular religious beliefs, we usually suggest keeping the directive general and talking your wishes through with the people you appoint. It is hard to know what you would want until you are in that situation, and if your view changes, a conversation with your appointees is all it takes, with no new document needed.
• Choose your substitute decision-maker, and talk to them first. They sign to accept the appointment, so they need to know what is being asked of them.
• Hand out copies. Give them to your substitute decision-makers, your doctor and your family, and pack one for hospital.
• Update it when life changes. While you still have decision-making capacity, a new directive replaces the old one.
• Line up your other documents. An enduring power of attorney for your finances and an up-to-date will complete the picture.
• Check any older paperwork. If you hold an enduring guardianship or medical power of attorney from before July 2014, bring it in so we can look at it with you.

How we help, one step at a time

Since October 2015, Mildwaters Byrth has brought more than 40 years of combined legal experience to families across the Yorke Peninsula and Mid North. Our team includes people born and raised here, so we understand how things work around these parts.

When we help you with your will, we strongly recommend putting plans in place for future incapacity at the same time. We prepare both an Enduring Power of Attorney and an Advance Care Directive, so that the people you trust can make decisions about your finances, medical treatment and living arrangements without delay or difficulty.

1. Connect and understand. We sit down with you, listen carefully and learn what matters most to you and your family.
2. Create and explain. We prepare your documents to suit your situation and explain every part in plain language, so you know exactly what to expect.
3. Support and deliver. We guide you through signing and sharing your documents, and make sure they sit properly alongside your will and enduring power of attorney.

Peace of mind, and your next step

Imagine knowing your wishes are written down, signed and sitting in the right hands. Your family knows who speaks for you and what you would want. Your doctor has a copy. Everyone you love can focus on being with you, with no guesswork or arguments getting in the way.

Contact us today to schedule a consultation and discover how we can provide the expert legal support you deserve, with a personal, local touch. This is one of those topics where the sooner you get in touch, the better. An Advance Care Directive can only be made while you still have decision-making capacity, so please do not leave it for another day.

If you are not ready to book just yet, explore our blog and resources to learn more about how proper legal planning can protect what matters most to you.

This article is general information only and is not legal advice. Every family is different, so please speak with us about your own situation.