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)]. An advance care directive is different from an enduring power of attorney, which covers the management of a person's financial affairs only.

A person cannot make an advance care directive on behalf of another person, even if they are the guardian or parent of that person [s 11(4)].

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 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.

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.

While an advance care directive comes into force as soon as it is witnessed [Advance Care Directives Act 2013 (SA) s 16(1)], it may only be used by a substitute decision-maker or health practitioner if the person who gave the advance care directive has impaired decision-making capacity [s 34]. The impaired capacity must relate to the particular decision that has to be made at the time [s 34].

Impaired decision-making capacity

A person is considered to have impaired decision-making capacity in respect of a particular decision if any of the following apply [s 7]:

An advance care directive may set out when the person who made it is to be considered to have impaired decision-making capacity in relation to particular decisions [s 7(1)(b)].

Pursuant to s 10, a person is presumed to have full decision-making capacity, must be allowed to make their own decisions to the extent that they are able, and may make decisions in collaboration with others.

Decision-making capacity is not always static. A person may fluctuate between having impaired decision-making capacity and full decision-making capacity [s 7(2)(c)]. Further, a person's decision-making capacity will not be taken to be impaired merely because their decision results, or may result, in an adverse outcome for the person [s 7(2)(d)].

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, remove or add something in their advance care directive, they must make a completely new advance care directive and go through the witnessing process again.

When a person makes a new advance care directive, any previous advance care directive is automatically revoked when the new one is signed and witnessed [ss 16(1), 17(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

An advance care directive may also be revoked by the person giving, or causing to be given, a written indication that they have revoked the advance care directive [Advance Care Directives Regulations 2014 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 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.

Consequences of revocation

If a person who is competent revokes an advance care directive, by either making a new directive or giving written notice, they must, as soon as practicable [s 29(3)]:

It is an offence for a person to act as a substitute decision-maker knowing that the advance care directive has been revoked, with a maximum penalty of imprisonment for 10 years [s 56(2)(a)].

Directions, wishes and values

A competent adult may use an advance care directive to give directions about their future health care, residential and accommodation arrangements and personal affairs [Advance Care Directives Act 2013 (SA) s 9(a)].

A competent adult may also use an advance care directive to express their wishes and values about health care, residential and accommodation arrangements and personal affairs, including by specifying outcomes or interventions that they wish to avoid [s 9(b)].

Expressions of wishes regarding organ and tissue donation can also be included in an advance care directive, which can be relied on as evidence of the person's wishes when required.

A person cannot make a valid request for voluntary assisted dying in an advance care directive pursuant to the Voluntary Assisted Dying Act 2021 (SA) [Advance Care Directives Act 2013 (SA) ss 7A and 12(1a)]. In order to be eligible for voluntary assisted dying, a person must have decision-making capacity throughout the pathway which means that an advance care directive would not apply [see Voluntary Assisted Dying Pathway].

See also: Giving effect to an advance care directive.

Binding provisions

A provision of an advance care directive comprising a refusal of particular health care (whether express or implied) is a binding provision [s 19(1)].

If a binding provision of an advance care directive is expressed to apply, or to be binding, only in specified circumstances, the provision will be taken to be a binding provision only in respect of those circumstances [s 19(2)].

All other provisions of an advance care directive are non-binding provisions [s 19(3)].

If it is intended that medication will be taken pursuant to a permit issued under the Voluntary Assisted Dying Act 2021 (SA), an advance care directive may need to be remade to ensure that medical staff are not required to comply with a directive requiring life saving measures after the medication has been taken.

For information about when a health practitioner may refuse to comply with a binding provision of an advance care directive, see Giving effect to an advance care directive.

Substitute Decision-Makers

Principles of decision-making

When making a decision under an advance care directive, a substitute decision-maker must, as far as is reasonably practicable [Advance Care Directives Act 2013 (SA) s 35(1)(a)]:

The substitute decision-maker must make the decision that they reasonably believe the person who gave the advance care directive would have made in the circumstances [s 35(1)(b)] and must act in good faith and with due diligence [s 35(1)(c)].

A substitute decision-maker should not ignore professional advice or damage any of the person's relationships or friendships. The substitute decision-maker can request services and information from service providers, and has the authority to speak on behalf of the person who appointed them, to ensure that necessary services are provided.

Making decisions when there is more than one substitute decision-maker

If more than 1 substitute decision-maker is appointed under an advance care directive, then the substitute decision-makers may exercise powers and make decisions together or separately [s 22], unless the advance care directive specifically says otherwise.

An advance care directive may, for example, expressly require decisions to be made or powers to be exercised jointly by all substitute decision-makers.

Alternatively, an advance care directive may say, for example, that one substitute decision-maker can make decisions about certain matters, and another substitute decision-maker can make decisions about other matters.

Substitute decision-makers may also be appointed in the alternative such that a substitute decision-maker may only be empowered to act if the first appointed substitute decision-maker is unavailable.

Notification of decisions

If a substitute decision-maker makes a decision under the advance care directive, they must take reasonable steps to notify each other substitute decision-maker appointed under the advance care directive of the decision [s 25].

Health Practitioners

A health practitioner who is providing, or is to provide, health care to a person who has given an advance care directive and who has impaired decision-making capacity in respect of a decision that is required in relation to the health care [s 36(1)]:

Health practitioners are exempt from complying with a binding provision of an advance care directive under s 36(1) in respect of health care where:

This exemption has been clarified by the Advance Care Directives (Review) Amendment Act 2023 (SA), with effect from 1 March 2024. Under s 36 as amended, a health practitioner may provide health care in contravention of a binding provision of an advance care directive to save the person's life following self-harm. The health practitioner is required to document the provision of health care in accordance with the requirements set out in the regulations.

Alternatively, the health practitioner may decide to comply with the person's refusal of health care in their advance care directive, provided this is otherwise consistent with the health practitioner's usual professional standards.

If this topic has caused personal distress, assistance is available 24 hours a day, 7 days a week. Call Lifeline on 13 11 14 or visit their website.

When an advance care directive may not be followed

A health practitioner may refuse to comply with a provision of an advance care directive if the health practitioner believes on reasonable grounds that [s 36(2)]:

A health practitioner may refuse to comply with a provision of an advance care directive that specifies the kind of health care that the person who gave the advance care directive wishes to receive if such health care [s 36(3)]:

However, a health practitioner must still comply with a binding provision even if it is not consistent with any relevant professional standards or does not reflect current standards of health care in the State [s 36(4)].

Similarly, if a provision of an advance care directive relates to the withdrawal or withholding of health care, including the withdrawal or withholding of life-sustaining measures, then a health practitioner cannot refuse to comply with the provision on the basis that it is not consistent with any relevant professional standards or does not reflect current standards of health care in the State [s 36(4)].

A health practitioner may refuse to comply with a provision of an advance care directive on conscientious grounds [s 37]. In this case, care of the person should be given to another health practitioner.

Prior to July 2014, it was possible to make three different types of advance care directive: an enduring power of guardianship, a medical power of attorney, and an anticipatory direction. These forms of advance care directive are no longer available. The current advance care directive form enables a person to do anything they could have done using these previous types of directive.

However, any enduring power of guardianship, medical power of attorney, or anticipatory direction made before July 2014 is still valid. There is no need to make an advance care directive to replace a previous form.

Enduring power of guardianship

While it is no longer possible for a person to appoint a guardian under the Guardianship and Administration Act 1993 (SA), any enduring power of guardianship executed and guardian appointed before 1 July 2014 will be taken to be an advance care directive and substitute decision-maker under the Advance Care Directives Act 2013 (SA) [sch 1 cl 35(1)].

Incomplete enduring guardianship forms

If an enduring guardianship form had been created prior to July 2014 but the person appointed as the enduring guardian had not signed the acceptance section of the form, or the form had not been witnessed, then the form can still be completed (endorsed or signed or both) [sch 3 cl 1(3) Advance Care Directives Regulations 2014]. Upon endorsement and signing, the enduring guardianship form will be taken to be an advance care directive [sch 3 cls 1(3)(c), (7)]. Any incomplete enduring guardianship forms must be completed by 31 December 2015 [sch 3 cl 1(3(b)(ii)]. After this date, an advance care directve form must be used.

Medical power of attorney

While it is no longer possible to make a medical power of attorney appointing a medical agent under the Consent to Medical Treatment and Palliative Care Act 1995 (SA), any medical power of attorney executed and agent appointed before 1 July 2014 will be taken to be an advance care directive and substitute decision-maker under the Advance Care Directives Act 2013 (SA) [sch 1 cl 33(1)].

Anticipatory directions

Similarly, while it is no longer possible to complete an anticipatory direction under the Consent to Medical Treatment and Palliative Care Act 1995 (SA), any anticipatory direction made before 1 July 2014 will be taken to be an advance care directive under the Advance Care Directives Act 2013 (SA) [sch 1 cl 32(1)].

Natural Death Act forms

Formerly, the Natural Death Act 1983 (SA) enabled a person suffering from a terminal illness to complete a form similar to an anticipatory direction form. In 1995 the Act was revoked, but any declarations made before 1995 were still valid under the Consent to Medical Treatment and Palliative Care Act 1995 (SA). Natural Death Act directions made before 1995 are still valid and taken to be an advance care directive under the Advance Care Directives Act 2013 (SA) [sch 1 cl 34(1)].

Multiple forms

If a person has made more than one of an enduring power of guardianship, a medical power of attorney, and an anticipatory direction, they are all valid, but they are treated as one advance care directive under the Advance Care Directives Act 2013 (SA) [sch 1 cl 36].

Provisions contrary to the Advance Care Directives Act 2013

As these pre July 2014 forms are taken to be advance care directives, any provision they may contain that is contrary to the Advance Care Directives Act 2013 (SA) is of no effect [sch 1 cl 32(2), 33(2), 34(2), 35(2); sch 3 cl 1(6)]. See: What cannot be included.

Revocation of pre-July 2014 forms

As the pre July 2014 forms are taken to be advance care directives, they can be revoked in the same way as an advance care directive. See: Changing or revoking an advance care directive. A competent adult who has made one or more of the former advance care directives may choose to revoke them by making a new advance care directive. If a person has more than one of the former directives, making a new advance care directive will revoke all of them.

Disputes

Any disputes concerning pre July 2014 forms are dealt with as if the forms were advance care directives. See Disputes.

Disputes that may be dealt with by the Office of the Public Advocate or SACAT

Pursuant to s 44 of the Advance Care Directives Act 2013 (SA), the Office of the Public Advocate or SACAT may be able to resolve disputes about:

Those who may go to the Office of the Public Advocate or SACAT for assistance about an advance care directive are [s 43]: