Section 11 of the Advance Care Directives Act 2013 (SA) provides the ability to make an advance care directive. An advance care directive covers personal matters: future health care, residential and accommodation matters and personal affairs [Advance Care Directives Act 2013 (SA) s 11(3)]. Thus, an advance care directive is different from an enduring power of attorney, which covers the management only of a person's financial affairs.
A person can only make an advance care directive for himself or herself [s 11(4)]. A person cannot make an advance care directive on behalf of another person, even if they are the guardian or parent of that person.
Both types of advance directives (enduring powers of attorney and advance care directives) are arrangements which allow a person to plan ahead, thereby providing a possible alternative to the involvement of the South Australian Civil and Administrative Tribunal (SACAT) at a later stage in a person's life should they become legally incapacitated.
Another key difference between an enduring power of attorney and an advance care directive relates to the need to appoint a substitute decision maker. An enduring power of attorney document must appoint someone to make decisions for the donor of the power. However, there is no need to appoint a substitute decision maker when making an advance care directive. The directive may simply be used to set out a person’s wishes in relation to future health care, residential and accommodation matters and their personal affairs.
Recognition of interstate advance care directives
Documents equivalent to the South Australian advance care directive that have been made under interstate law are recognised in South Australia and treated as if they were advance care directives made under the Advance Care Directives Act 2013 (SA) [s 33(2)(a); Advance Care Directives Regulations 2014 (SA) reg 12].
However, an interstate advance care directive can only be revoked in the manner allowed for under the relevant interstate law. Apart from revocation, the Advance Care Directives Act 2013 (SA) applies to an interstate advance care directive [s 33(2)(b)]. Thus, even if certain provisions are acceptable under interstate law, if they are not allowed to be included under South Australian law, they are not valid. See: What can be included in an advance care directive.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.