The information on this page relates specifically to advance care planning laws in the Australian Capital Territory (ACT). Find out how to create your plan in the ACT.
Law and policy in Australia and the ACT
All states and territories have law and/or policy related to advance care planning to support person-centred medical treatment decision-making and advance care directives.
In the ACT, both statutory and common law advance care directives exist and are legally binding. These can include a person’s values, preferences for future treatment (consent to, refusal of and/or withdrawal of treatment) and appointment of a substitute decision-maker. They should be completed and signed by a competent adult. Preferably, they should be stored and accessed via My Health Record.
In the ACT, a person with decision-making capacity can:
A Health Direction and the role of the substitute decision-maker comes into effect when the person loses decision-making capacity.
A substitute decision-maker can make medical treatment decisions on behalf of a non-competent person.
In ACT, the substitute decision-maker can be:
- chosen and appointed by the individual as an attorney (one or more attorneys can be appointed)
- a guardian appointed by the Australian Capital Territory Civil and Administrative Tribunal Board (ACAT)
- a default decision maker (health attorney). This will be someone who is 18 years or older and has a close and continuing relationship with the person, chosen in the following order:
- The person’s spouse or domestic partner
- An unpaid carer of the person
- A close relative or close friend of the person
An appointment by ACAT overrides all other appointments.
Appointing an attorney
An attorney appointment should be on the recommended Enduring Power of Attorney form. It must be written in English, contain details of the appointer and person(s) being appointed. The person(s) being appointed must sign that they accept the appointment.
Document signing must be witnessed by two adults - one of whom is a person authorised to witness the signing of a statutory declaration. Neither witness can be a person who is being appointed. More than one person can be appointed and they can be appointed to act jointly or severally. The person(s) being appointed must be at least 18 years old.
The attorney(s) can refuse or withdraw treatment on behalf of the person if expressly authorised to do so and they have consulted with the treating team. They must make the decision they believe the person would make (i.e. substituted judgement).
Advance care directives
Only people with decision-making capacity can complete an advance care directive - Health Direction or Advance Care Plan Statement of Choices (competent person). It should be on the recommended Health Direction form or Advance Care Plan Statement of Choices (competent person) and can provide specific directions about treatment that they would consent to, refuse and/or withdraw.
An advance care directive must be written in English, include the person’s full name and address. It must be signed by the person and witnessed by two adults. Neither witness can be a person appointed as an attorney.
The role of advance care directives when making medical treatment decisions
Advance care directives in the ACT include Health Directions, Advance Care Plan Statement of Choices (competent person) and Enduring Power of Attorney documents.
Any person with decision-making capacity is able to make their own decisions, including decisions related to life-saving treatment. All adults are presumed to have capacity unless there is evidence to suggest otherwise.
Consent must be obtained before any treatment is provided, withheld or withdrawn. If a person does not have decision-making capacity, all reasonable efforts must be made to locate a Health Direction or Advance Care Plan Statement of Choices (competent person) form and identify an attorney. The only exception to this is when emergency treatment is required and an advance care directive or attorney is not available.
If there is an instructional directive refusing medical treatment, a health practitioner cannot provide treatment. An attorney cannot override a valid advance care directive.
If there is a values directive / Statement of Choices (no legal capacity) and the person has not completed an advance care directive, the attorney is required to provide informed consent before treatment is provided. The attorney and the health practitioner must consider information in the values directive or advance care plan, but it is the attorney who is required to make the decision.
If an advance care directive or attorney cannot be located, the ACT Civil and Administrative Tribunal (ACAT) can provide guidance on the process for proceeding.
Changes and revocation
A Health Direction ends when a new Health Direction is completed, a person with capacity revokes their Health Direction, or it expires (if an expiry date is included), or the person who made the Health Direction dies.
An attorney appointment ends if a person with capacity revokes the appointment of attorney, if all people appointed are unable to act, or if the person who made the appointment dies. If the person making the appointment marries someone who is not their attorney, the attorney’s appointment is revoked, unless the 'marriage, civil union or civil partnership' section of the appointment form is completed indicating otherwise. The person appointed as attorney can also resign from their appointment.
Under certain circumstances the ACT Civil and Administrative Tribunal (ACAT) can cancel a Health Direction or attorney appointment.
Advance care planning in the context of mental health
For people with mental illness who maintain decision-making capacity, advance care planning occurs in the same way as for everyone else. An advance care directive can include preferences relating to mental health treatment. They receive treatments under the same laws unless treated under the Mental Health Act 2015 when an Advance Agreement, an Advance Consent Direction and appointment of a Nominated Person may be relevant.
Advance care planning for people less than 18 years old
Children can do advance care planning and document their preferences, however, there is no advance care directive legislation pertaining to a person less than 18 years of age and they are not legally binding. A person less than 18 years old cannot appoint an attorney.
Applicability in other states and territories
In general, a valid ACT Health Direction will apply in other states and territories in Australia, although there may be some limitations and additional requirements. It may be recognised under common law.
Similarly, an appointment of an attorney will usually apply, but there is variation in the laws within Australia. It is recommended that a person obtain specific advice from the Office of the Public Advocate or equivalent in the relevant state or territory.
If a person is permanently moving state or territory, it is recommended that they update their documentation using the recommended form(s).
Advance care directives from other states and territories
There are currently no provisions in the ACT for the recognition of advance care directives made in other Australian jurisdictions. However, these documents may be valid under common law.
A valid interstate appointment of a substitute decision-maker(s), is recognised in the ACT as an attorney.