Competence

A competent adult may make an advance care directive [Advance Care Directives Act 2013 (SA) s 11].

An adult who wants to make an advance care directive needs to complete a specific form while they have legal capacity, that is, while they are competent. To be competent to make an advance care directive, a person must understand what an advance care directive is and the consequences of giving an advance care directive [s 11(1)].

Sometimes it is difficult to assess whether or not someone is competent. Someone who is not competent would be unable to understand the nature of the document and its effect, or be unable to communicate in any way.

Being physically incapacitated, for example being paralysed and unable to sign documents, does not necessarily mean that a person is not competent. The person may still be able to understand the document and its implications. If the person is able to communicate this in some way, then they can be considered competent.

This can be a complex area of law. If there is a question about a person's competence it is best to obtain a written medical opinion, preferably from the person's own doctor.

It is an offence to induce another to make an advance care directive using dishonesty or undue influence [s 56(1)]. The maximum penalty is imprisonment for 10 years.

Forms

An advance care directive must be made using a specific form [s 11(2)(a)].

SA Health released a new advance care directive form on 1 March 2024. Advance care directives made using the previous form remain legally valid. Part-completed advance care directives on the previous form may be completed or may be started afresh on the new form.

SA Health has also prepared a new advance care directive kit which includes instructions on how to complete an advance care directive. The kit includes the Advance Care Directive Information Statement that witnesses are required to give to the person completing the directive.

An advance care directive form can be filled in and created online at the Advance Care Directives website. Alternatively, the blank form and the kit can both be downloaded and printed free of charge from the website.

A professionally printed hard copy of the advance care directives kit can be obtained for free from Service SA in person or by post (postage fees apply), or at selected local public libraries. Visit the Advance Care Directives website for more information.