When a person has completed an advance care directive form, they must sign the form in the presence of a ‘suitable’ witness [Advance Care Directives Act 2013 (SA) s 15(1)(a); Advance Care Directives Regulations 2014 (SA) reg 7(1)] - see below.
When a substitute decision-maker is being appointed
If the person is appointing a substitute decision-maker under the advance care directive, then the advance care directive must not be witnessed until each substitute decision-maker appointed has completed and signed the relevant part of the form [regs 7(1)(a), 8(1)].
Before the person signs the form, the witness must give the person an ‘advance care directive information statement’ [s 15(1)(b)(i); reg 7(2)]. This statement is available in the DIY Kit from the Advance Care Directives Website.
The witness must also explain to the person the legal effects of giving an advance care directive [s 15(1)(b)(ii)]. While simply giving the person an ‘advance care directive information statement’ is taken to be an explanation of the legal effects of the document [reg 7(2)], there is a further obligation on the witness to form an opinion that the person understands the information and explanation [s 15(1)(iii)]. Thus, a witness should have a conversation with the person about the proposed advance care directive to ensure that the person understands the nature and effects of the document.
If a witness has any doubt about the person’s ability to understand the nature and effects of the advance care directive, they should not sign the form. The witness may suggest that the person obtains legal advice to have the advance care directive further explained. Alternatively, if it is a question of the person’s ability to understand the document, the witness may request the person obtains a medical certificate indicating they are competent to make the advance care directive.
The witness must also form an opinion that the person does not appear to be acting under any form of duress or coercion [s 15(1)(iv)]. Again, the witness should have a conversation with the person so that they can ascertain this is the case. A person may act under duress or coercion that exists solely due to the perception of the person or a mistake on the part of the person [s 15(3)]. If the witness has any doubts, they should not sign the form.
As making an advance care directive revokes any previous advance care directive [s 17], a witness should ask the person whether they have previously made an advance care directive and form the opinion that the person understands the consequences of revoking the existing advance care directive [s 29(1)]. See: Changing or revoking an advance care directive.
Conflict of interest
A person cannot witness an advance care directive if he or she [s 15(2)]:
- is appointed under the advance care directive as a substitute decision-maker;
- has a direct or indirect interest in the estate of the person giving the advance care directive (whether as a beneficiary of the person's will or otherwise);
- note that it is the responsibility of the witness to make sure they are not in this position – if in doubt, a witness should not sign
- is a health practitioner who is responsible (whether solely or with others) for the health care of the person giving the advance care directive;
- occupies a position of authority in a hospital, hospice, nursing home or other facility at which the person giving the advance care directive resides.
A suitable witness is someone who is:
- ‘competent’, that is, someone who understands the nature and legal effects of the proposed advance care directive [reg 7(3)(a)]; and
- comes under the list of suitable witnesses in schedule 1 of the Advance Care Directives Regulations 2014 [reg 7(3)(b)].
When a person's first language is not English
An advance care directive form must be completed in English [s 14(1)(c)]. However, a person may give an advance care directive with the assistance of an interpreter, using a language in which the person is fluent [s 14(1)(a)].
If an interpreter is used, the interpreter must fill in the section of the form that certifies that the information recorded in the advance care directive form accurately reproduces in English the original information and instructions of the person provided when giving the advance care directive [s 14(1)(d)(ii)].
Before the form is witnessed, the interpreter must translate the ‘advance care directive information statement’ for the person [s 14(1)(b)]. The interpreter must also complete the section of the form that certifies that, in his or her opinion, the ‘advance care directive information statement’ was given to the person and the person appeared to understand the statement [s 14(1)(d)(i)].
A person who is a ‘suitable’ witness in relation to a particular advance care directive may also act as an interpreter for the person giving the directive [s 14(2)].
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