Advance care directives (ACD)
Before a person suffers from any impaired decision-making capacity, legal documents can be prepared to set out the instructions, wishes and preferences for the future management of finances and legal matters, and health, accommodation and personal matters in the event that the person can no longer make appropriate decisions
These legal documents are called Advance Directives. They are:
- An Advance Care Directive (ACD), which enables adults to make arrangements in advance for their future wishes and instructions about most types of health care, lawful treatment decisions in the terminal phases of illness, accommodation and personal matters, and can be used to appoint one or more substitute decision- makers to make decisions on the person’s behalf when they are unable to do so.
- An Enduring Power of Attorney (EPA), which relates to future planning about financial matters and enables adults to appoint another person as an attorney to manage their assets and financial affairs in the future if they become unable to do so. (SACAT does not make orders about Enduring Power of Attorney directives.)
Previously there were three other documents that covered some of these matters (these three documents listed below are still valid if made before 1 July 2014 and will be treated as if they were made under the Advance Care Directives Act, 2013).
An Advance Care Directive (ACD) now replaces:
- Enduring Power of Guardianship
- Medical Power of Attorney
- Anticipatory Direction.
SACAT deals with the following types of applications in this area:
- Cancelling an Advance Care Directive when a person is no longer competent or has limited understanding (s32 Advance Care Directives Act)
- Reviewing an Advance Care Directive to replace a substitute decision-maker who is ineligible, no longer willing to act, has been negligent or is in such default that they are not fit to be the substitute decision-maker in the exercise of their duties. (s 51 Advance Care Directives Act)
- Reviewing an Advance Care Directive to replace a substitute decision-maker because of a change of circumstances. Only the Public Advocate can apply in this situation.
- Providing directions if advised of a person’s wish for cancellation of an ACD where a person is not competent or has limited understanding (s 31 Advance Care Directives Act)
- Reviewing a matter dealt with by the Public Advocate to resolve disputes arising under an advance care directive (s 48(1)(a) Advance Care Directives Act)and
- Making declarations and directions about issues and disputes that might arise under an advance care directive (s 48(1)(b) Advance Care Directives Act.
NOTE: SACAT will usually only review or make a declaration about an issue arising under an Advance Care Directive if the Public Advocate has previously tried to resolve the matter or mediate the issue. If the Public Advocate has not first dealt with the matter SACAT can refer the matter back to the Public Advocate for mediation.
(s 45 Advance Care Directives Act).
SACAT does not:
- provide initial advice, dispute resolution or give initial directions or declarations about issues arising under Advance Care Directives. These are functions preferably performed by the Public Advocate. However, if necessary the Public Advocate may refer disputes to SACAT and there is a right of review against a decision of the Public Advocate. An application for a declaration under an ACD can be made to SACAT but may be referred back to the Public Advocate if mediation has not first been attempted. Please see the 'Do I need to apply page' for further details.
- revoke an Enduring Power of Attorney. Applications about disputes or other issues arising under an Enduring Power of Attorney are made to the Supreme Court of SA under the Powers of Attorney and Agency Act, 1984. However, SACAT will make an administration order in certain circumstances if the arrangements under an EPA are not working or if an appointed attorney no longer wishes to act. The appointed administrator can then revoke the EPA.
SACAT is also able to:
• appoint a guardian in certain circumstances regarding accommodation, health and lifestyle decisions
• appoint an administrator in certain circumstances regarding financial decisions
• provide consent to prescribed medical treatment
• make and review treatment orders for people with mental illness.
Find out more about bringing an application to SACAT:
- Apply to SACAT
- Steps in resolving an issue
- Preparing for a hearing or conciliation
- Fees and charges - there are no fees in the Community Stream of SACAT.
- South Australian Civil and Administrative Tribunal Act 2013
- Guardianship and Administration Act 1993
- Consent to Medical Treatment and Palliative Care Act 1995
- Advance Care Directives Act 2013
- Mental Health Act 2009
Organisations that may be able to assist you in advance care directive matters:
Refer to https://www.advancecareplanning.org.au/resources/advance-care-planning-in-my-state which refers to these other websites with ACP information:
Advance Care Directives - Government of South Australia
Advance Care Directive – SA Health
Advance Care Directive Brochure – SA Health / Government of South Australia
Advance Care Directive Fact Sheet – SA Health / Government of South Australia
Advance Care Directive FAQ – SA Health / Government of South Australia
Advance Care Directives Information Statement and Information Brochure – SA Health / Government of South Australia
Advance Care Directive Wallet Card – SA Health / Government of South Australia
Available in 16 different languages – SA Health / Government of South Australia
Advance Care Directives Information Statement and Information Brochure