The information on this page relates specifically to advance care planning laws in New South Wales (NSW). Find out how to create your plan in NSW.
Law and policy in Australia and NSW
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 NSW, there are no statutory advance care directives. Only 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 NSW, a person with decision-making capacity can:
- appoint a substitute decision-maker
- complete an instructional and/or values non-statutory advance care directive
- make medical treatment decisions
An advance care directive and the role of the substitute decision-maker comes into effect when the person loses decision-making capacity.
A substitute decision-maker will make medical treatment decisions on behalf of a non-competent person.
In NSW, the substitute decision-maker can be:
- chosen and appointed by the individual as an enduring guardian(s)
- a guardian appointed by the New South Wales Civil and Administrative Tribunal (NCAT)
- a person with a close and continuing relationship with the individual (person responsible), chosen in the following order:
- The person’s spouse, de facto or same-sex partner, where there is a close and continuing relationship
- A primary (unpaid) carer
- A friend or relative who has a close personal relationship, frequent contact and a personal interest in the person’s welfare
An appointment by NCAT overrides all other appointments.
Appointing an enduring guardian
An enduring guardian appointment should be on the recommended Appointment of Enduring Guardian 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. A person who is involved in the provision of medical services, accommodation, or other daily living activities, or the spouse, parent, or sibling of such person cannot be appointed as an enduring guardian.
Document signing must be witnessed by an eligible witness, either an Australian legal practitioner, Registrar of the NSW Local Court, overseas-registered foreign lawyer or approved employee of NSW Trustee & Guardian. The witness cannot be a person who is being appointed.
More than one person can be appointed. They may be appointed jointly, severally or jointly and severally. Enduring guardians appointed jointly are expected to work together and reach agreement on decisions. Appointing severally means that guardians can make decisions without the requirement of agreeing and acting together.
The enduring guardian(s) can consent to, refuse or withdraw treatment on behalf of the person. They must act in accordance with any lawful limitations or conditions contained in the form. They must make the decision they believe the person would make (i.e. substituted judgement). A person responsible does not have the power to consent to withholding or withdrawing treatment.
Advance Care Directives
Only people with decision-making capacity can complete an Advance Care Directive. An Advance Care Directive can be completed on the recommended NSW Health Advance Care Directive (ACD) form or similar.
It may contain:
- instructional directives - a person can provide specific directions about treatment that they would consent to, refuse and/or withdraw
- values directives - a person can describe their more general views regarding their values and preferences for care
An Advance Care Directive must be written in English and should include the person’s full name, date of birth, address, and be signed.
It is recommended that the Advance Care Directive is signed by the person and witnessed by two adults; one of whom is the treating health professional. Neither witness can be a person appointed as an enduring guardian. Witnesses must certify that the person completing the directive or making the appointment has decision-making capacity, and that they acted freely and voluntarily.
The role of advance care directives when making medical treatment decisions
Advance care directives in NSW include Advance Care Directives and Enduring Guardian 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 an Advance Care Directive and identify an enduring guardian. The only exception to this is when emergency treatment is required and an Advance Care Directive and/or enduring guardian is not available.
If there is a directive refusing medical treatment, a health practitioner cannot provide treatment. An enduring guardian cannot override a valid Advance Care Directive.
If the person has not completed an Advance Care Directive, the enduring guardian is required to provide informed consent before treatment is provided. The enduring guardian and the health practitioner must consider the person’s values and preferences for care, but it is the enduring guardian who is required to make the decision.
If an Advance Care Directive and/or enduring guardian cannot be located, a guardian is appointed by the New South Wales Civil and Administrative Tribunal (NCAT). A guardianship order will outline the functions of the order - it may be continuing or temporary.
Changes and revocation
An Advance Care Directive ends when a new Advance Care Directive is completed, a person with capacity revokes their Advance Care Directive, or it expires (if an expiry date is included), or the person who made the directive dies.
An enduring guardianship appointment ends if a person with capacity revokes the appointment of their enduring guardian(s), if the person who made the appointment dies or marries, or if one of the guardians dies, resigns or becomes incapacitated and they were appointed jointly (unless otherwise provided in the form).
Under certain circumstances, the New South Wales Civil and Administrative Tribunal (NCAT) can cancel an Advance Care Directive or enduring guardian(s) appointment or issue a guardianship order which suspends any appointment of enduring guardian.
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. They receive treatments under the same laws unless treated under the Mental Health Act. An Advance Care Directive can include preferences relating to mental health treatment and they can appoint an enduring guardian.
Advance care directives 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 enduring guardian.
Applicability in other states and territories
In general, a valid NSW Advance Care Directive 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 enduring guardian 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) for their new location.
Advance care directives from other states and territories
A valid advance care directive from another jurisdiction will be recognised in NSW under common law and should be used to inform decision-making.
A valid interstate appointment of a substitute decision-maker(s) for medical treatment decisions will be recognised as an appointed enduring guardian(s).