Explaining Advance Care Directives

As of 1 July 2014, the new Advance Care Directive regime came into force, superseding the previous Enduring Power of Guardianship/Medical Power of Attorney regime.

An Advance Care Directive allows individuals to record their wishes regarding future healthcare, accommodation arrangements, end of life choices, and other related personal requests in this context following loss of capacity.

Advance Care Directives are governed by the recently proclaimed Advance Care Directives Act (SA) 2013 which allows individuals to nominate one or more people (called “Substitute Decision-Makers”) to act in making health and well-being decisions on their behalf in the event of temporary or permanent incapacity.  Advance Care Directives are designed to ensure that such health and related care is delivered to individuals in accordance with their written wishes and instructions, whilst at the same time protecting health practitioners who give effect to such directions.

Existing Enduring Powers of Guardianship, Medical Powers of Attorney and Anticipatory Directions entered into and completed prior to 1 July 2014 still remain valid and do not need to be changed unless otherwise coveted.

The above changes do not in any way affect General and Enduring Powers of Attorney which are separate documents governed by the Powers of Attorney and Agency Act (SA) 1984.  General and Enduring Powers of Attorney allow individuals to appoint one or more people (called “Attorneys”) to manage their legal and financial affairs in the event of either loss of capacity or for pragmatic reasons (for example, if a person is away interstate or overseas).  An Attorney can be empowered to perform a number of duties such as withdraw money, pay bills, sign cheques, buy and sell real estate, deal with superannuation and otherwise deal with a person’s legal and financial affairs and can be limited or unlimited in scope as desired.

Advance Care Directives and General and Enduring Powers of Attorney are both very important documents to have in place in order to enable individuals to have their affairs managed by one or more persons of their choosing in the event of incapacity.  As such, it is recommended that these documents be prepared by a lawyer well versed in these areas.

This response was prepared by Zeena Anthony-Qureshi of Mellor Olsson Lawyers who can be contacted generally and in relation to any specific queries arising from this article.

Zeena Anthony-Qureshi, Solicitor
Mellor Olsson Lawyers
Phone: 08 8414 3427
Email: zanthony-qureshi@mellorolsson.com.au 
This article was first published in The Advertiser, Wednesday 12th November 2014.

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