You may have heard the term "living Will" and be wondering what this means. A living Will is the term sometimes used to describe an Advance Care Directive.
In 2016, the Medical Treatment Planning and Decisions Act 2016 (Vic) (‘the Act’) was introduced partly to address the issue of personal autonomy in medical treatment decisions. This included the introduction of legally binding Advance Care Directives.
An Advance Care Directive allows you to maintain a level of control over your future care and medical treatment, by setting out your instructions, values and preferences in relation to your medical treatment. It comes into effect in the event that you lose the ability to make such decisions or to communicate your wishes in future.
In addition to an Advance Care Directive, it is recommended that you also make an Enduring Power of Attorney and Appointment of Medical Treatment Decision Maker. This enables you to appoint a trusted person to make decisions on your behalf in relation to financial and personal matters, and medical treatment (called your Medical Treatment Decision Maker). Although you can provide your binding instructions in an Advance Care Directive, this may not cover every scenario and you may still need someone to make decisions on your behalf.
What is included in an Advance Care Directive?
An Advance Care Directive may contain the following:
- Instructional Directives;
- Values Directives; or
- A combination of both.
An instructional directive is a legally binding statement in which you consent to, or refuse, future medical treatment. Your instructional directive takes effect as if you had consented to, or refused, the treatment yourself.
For example, you could include an instructional directive that you consent to a heart bypass operation in specified circumstances, or that you refuse cardiopulmonary resuscitation.
A values directive is a statement of your values and preferences for your medical treatment. Your Medical Treatment Decision Maker will use your values directive to guide them when they make decisions for you.
Some examples include:
- If I am unable to recognise my family and friends, and cannot communicate, I do not want any medical treatment to prolong my life;
- If a time comes when I cannot make decisions about my medical treatment, I would like to receive any life prolonging medical treatments that are beneficial. This includes receiving medical research procedure(s) to see whether the procedure has any benefit for me.
How can Sharrock Pitman Legal assist?
Having an Advance Care Directive in place provides certainty for you, and peace of mind for your loved ones and the health professionals caring for you, as to your future medical care and well-being when you are no longer able to make these decisions for yourself.
If you believe you could benefit from creating an Advance Care Directive, or have any other estate planning queries (including succession planning), please feel free to get in touch with a member of our Wills & Estates team by email or call 1300 205 506.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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Binay Prasad is a Senior Associate of Sharrock Pitman Legal and an Accredited Specialist in Wills and Estates law.
Binay has over 10 years of experience in the field of wills and estates and has a particular interest in complex estates involving business, family trusts, and SMSFs. Binay also has experience in family law, which complements his wills and estates practice. For further information, contact Binay on his direct line (03) 8561 3329.