A person giving an advance care directive may appoint 1 or more adults to be substitute decision-makers in respect of the advance care directive [Advance Care Directives Act 2013 (SA) s 21(1)]. The appointment of a substitute decision-maker is not required for an advance care directive to be valid.

Unless the advance care directive states otherwise, if 2 or more substitute decision-makers are appointed under an advance care directive, they are each empowered to make decisions separately and together [s 22]. An advance care directive may place conditions on the exercise of substitute decision-making powers or appoint substitute decision-makers as alternative substitute decision-makers and limit their powers to when a specified substitute decision-maker is unavailable.

Who cannot be a substitute decision-maker

The following persons cannot be appointed or act as a substitute decision-maker [s 21(2)]:

Acceptance of appointment

A substitute decision-maker must certify, by completing and signing the relevant part of the advance care directive form, that they accept the appointment as a substitute decision-maker, and have read and understand the guidelines for substitute decision-makers (available at the Advance Care Directives website) [s 21(3), Advance Care Directives Regulations 2014 (SA) reg 8].

All substitute decision-makers must accept their appointment before the advance care directive is signed by the person appointing them and witnessed by a suitable witness [reg 8(1)].

The Office for Ageing Well and the Office of the Public Advocate together have put together a Substitute Decision-Maker Toolkit including a guide, factsheet, conversation starters and video resources.

Powers of a substitute decision-maker

A substitute decision-maker appointed under an advance care directive may make any decision that the person who gave the advance care directive could have lawfully made in relation to [s 23]:

The advance care directive may limit the matters a substitute decision-maker can make decisions about.

An advance care directive cannot be used to allow a substitute decision-maker to perform functions that the person who gave the advance care directive has as a trustee or personal representative of another [s 23(3)].

An advance care directive does not authorise a substitute decision-maker to refuse the administration of drugs to relieve pain or distress, or the natural provision of food and liquids by mouth [s 23(4)].

Although a substitute decision-maker has a responsibility to protect a person's interests, they do not have the obligation to care for the daily needs of that person. The decisions of a substitute decision-maker extend to all personal decisions (unless limited by the advance care directive); however, the substitute decision-maker has no authority to interfere with civil liberties, for example, intercepting mail or preventing a person from marrying.

Renouncing an appointment

A substitute decision-maker may renounce their appointment by giving written notice to the person who appointed them [s 27(1)].

The permission of SACAT is needed if a substitute decision-maker is the only person appointed under an advance care directive, and they wish to renounce their appointment during a period in which the person who gave the advance care directive is not competent [s 27(3)].

Removal of Substitute Decision-Maker by SACAT

Pursuant to s 51, if a substitute decision-maker:

SACAT may, of its own motion or on application by an eligible person:

SACAT should not revoke an advance care directive in these circumstances if there are still provisions in the document that can continue to have effect, in spite of the removal of the substitute decision-maker [Advance Care Directives Act 2013 (SA) s 51(5)].