Making a new advance care directive
It is not possible for a person to change an advance care directive [Advance Care Directives Act 2013 (SA) s 18]. If a person wishes to change, delete or add to an advance care directive, they must make a completely new advance care directive and go through the witnessing process again.
If a person makes a new advance care directive, then any previous advance care directive is automatically revoked when the new one comes into force [s 17], that is, when the new one has been witnessed as required by the Act [s 16(1)].
If a person who is competent revokes an advance care directive, either by making another directive or giving written notice, they must, as soon as practicable [s 29(3)]:
- advise each substitute decision-maker appointed under the advance care directive of the revocation, and
- take reasonable steps to notify each other person who has been given a copy of the advance care directive of the revocation.
If a person who was a substitute decision-maker knows that the advance care directive appointing them has been revoked but they then act as if they were still a substitute decision-maker, they commit an offence with a maximum penalty of 10 years imprisonment [s 56(2)(a)].
Making another directive when the person is competent
An advance care directive may be revoked by making another advance care directive [s 17(1), Advance Care Directives Regulations 2014 (SA) reg 10(a)]. In this case, the earlier directive is revoked at the time the later directive comes into effect, that is, when the later directive has been witnessed in accordance with the Act [s 17(2), s 16(1)].
In assessing the person’s competence to make the new directive, the witness should also form an opinion that the person understands the consequences of revoking the earlier directive [s 29(1)].
Giving written notice when the person is competent
An advance care directive may also be revoked by the person giving, or causing to be given, a written indication that he or she has revoked the advance care directive [reg 10(b)].
In order for the revocation to be effective, the person must have been competent at the time of giving the notice and have understood the consequences of making the revocation [s 29(1)].
If there is any doubt as to the person’s competence or understanding of the consequences of making a revocation, then SACAT must be advised of the situation. See: When the person is not competent.
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