cancelling an advance care directive (ACD)
A competent adult who gave an advance care directive (ACD) can cancel it at any time. This is also described as “revoking” an advance care directive.
SACAT can also cancel or revoke an advance care directive (ACD) if a person is not competent or does not appear to understand the consequences of cancelling an ACD. In those circumstances the ACD may only be cancelled by SACAT.
Who can apply for cancellation of an ACD?
The person who gave the directive, or a person acting on his or her behalf, may apply to SACAT to revoke or cancel the ACD under s 32 of the Advance Care Directive Act of [LINK-app form]
SACAT can also cancel an ACD under s 32 of the Act if advised under s 31 of the Act of a person’s wishes or likely wishes to cancel an ACD. SACAT will usually be advised about this situation by a health practitioner in accordance with the Act.
When will SACAT cancel an ACD?
1. SACAT will only cancel an ACD under s 32 of the Act if SACAT is satisfied on the evidence available to it that:
- the person who gave the ACD understands the nature and consequences of cancellation and
- the cancellation genuinely reflects the wishes of the person and
- the cancellation is appropriate in all the circumstances.
SACAT will not cancel the ACD if the ACD itself specifies that it should not be cancelled in this circumstance, unless SACAT is satisfied that this reflects the current wishes of the person.
2. SACAT can also cancel or revoke an ACD under s 51 of the Act if the person who gave the ACD is not competent, or is in such default as to not be fit to to continue; the substitute decision maker is no longer able to continue or the appointment is cancelled, and /or if no other substitute decision maker was appointed. But SACAT will not revoke an ACD in that circumstance if there are other provisions in the ACD that can continue to have effect.
SACAT will cancel the appointment of a substitute decision maker if satisfied that a person appointed as a substitute decision maker cannot be a substitute decision maker under the act, or is no longer willing to act or has been negligent in the exercise of his or her powers under the ACD.
Before making an application to SACAT to revoke or cancel an ACD you should first seek advice from the OPA.
Guardianship order can be made
If SACAT cancels or revokes an ACD, SACAT can appoint a guardian for the person under a full or limited guardianship order if satisfied that the person the subject of the matter has a mental incapacity and that an order should be made.
Right to Review of a SACAT decision (Internal Review)
There is a right to Review a SACAT decision to cancel an ACD.
Who can apply for Review of a SACAT decision?
An application for review of a SACAT decision can be made by:
• the applicant for revocation of the ACD
• the person who gave the ACD
• the Public Advocate
• any person who presented evidence or material or made submissions to SACAT about revoking the ACD
• any other person who satisfies SACAT that he or she has a proper interest in the matter.