An Advance Directive is an instruction that a person makes now about their future medical treatment or health care in the event he or she loses capacity to make decisions. They are a useful tool that people can use to communicate their wishes, in advance, to their families, friends and health professionals.
An Advance Directive enables a person to make decisions about future treatment or care, and to plan for the end of their life. It will only operate when a person no longer has decision-making capacity. In an Advance Directive, a person can request and/or refuse medical treatment.
Advance Directives may also be referred to as an ‘advance health directive’, ‘living will’, ‘refusal of treatment certificate’, ‘advance personal plan’ or ‘medical direction’.
In Australia there are two types of Advance Directives:
- Common law Advance Directives: these directives are created and governed by the common law (i.e. decisions made by judges in the courts).
- Statutory Advance Directives: these directives are governed by specific legislation in States and Territories. All States and Territories except for New South Wales and Tasmania have legislation creating statutory Advance Directives.
The law on Advance Directives is different in each Australian State and Territory. In some jurisdictions, both statutory Advance Directives and common law Advance Directives may be recognised by the law, while in others, only one will be.