The information on this page relates specifically to advance care planning laws in Tasmania. Find out how to create your plan in Tasmania.
Law and policy in Australia and Tasmania
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 Tasmania, the common law findings allow for advance care directives for preferences of care to exist and be legally binding. On a date yet to be announced, the Guardianship and Administration Amendment (Advance Care Directives) Act 2021 will take effect in Tasmania.
The current Tasmanian common law advance care directive 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. Preferably, they should be completed and signed by a competent adult. Ideally, they should be stored and accessed via My Health Record.
In Tasmania, a person with decision-making capacity can:
- appoint an enduring guardian
- complete an instructional and/or values advance care directive
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 Tasmania, the substitute decision-maker can be:
- chosen and appointed by the individual as an enduring guardian(s)
- a guardian appointed by the Tasmanian Guardianship and Administration Board to make decisions (full or limited) about medical treatment
- the first of the following (person responsible):
- For a person under 18 years:
- The person’s spouse
- The person’s parent
- For a person over 18 years:
- The person’s spouse
- The person’s carer
- A close friend or relative
An appointment by the Tasmanian Guardianship and Administration Board overrides all other appointments.
Appointing an enduring guardian
An enduring guardian appointment should be on the recommended Instrument Appointing Enduring Guardian(s) form. The form must be registered with the Guardianship and Administration Board. It is not legally binding until registered.
The form 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’s health practitioner or paid professional carer cannot be appointed as an enduring guardian.
Document signing must be witnessed by one adult. A witness cannot be a person who is being appointed or someone related to the appointer or person(s) being appointed.
More than one person can be appointed. They can be appointed to act jointly or severally. Joint guardians can make decisions jointly or severally, depending on the wording in the appointment. The person(s) being appointed must be at least 18 years old.
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).
Advance Care Directives
Currently in Tasmania, people with decision-making capacity or a person legally appointed as the enduring guardian can complete an Advance Care Directive. In future, when the Guardianship and Administration Amendment (Advance Care Directives) Act 2021 takes effect, only the person with decision-making capacity will be able to complete an Advance Care Directive. An Advance Care Directive should be on the recommended Advance Care Directive 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 directive - 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. In future, Tasmanian law will also allow for an oral or audio-visual recording of an Advance Care Directive.
The Advance Care Directive must be witnessed by a person who is over 18 years old, is unrelated to the person making the directive, is not a known beneficiary in the person’s Will, and is not a paid personal carer. The witness 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 Tasmania include Advance Care Directives and the 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 or enduring guardian is not available.
If there is an Advance Care Directive refusing medical treatment, a health practitioner cannot provide treatment. An enduring guardian cannot override a valid instructional 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(s) and the health practitioner must consider the person’s values and preferences for care, but it is the enduring guardian(s) who is required to make the decision.
If an Advance Care Directive or enduring guardian cannot be located, the Tasmanian Guardianship and Administration Board can provide guidance on the process for proceeding.
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 guardian appointment ends if a person with capacity revokes the appointment of their enduring guardian, if all people appointed are unable to act, or if the person who made the appointment dies. The person(s) appointed as enduring guardian(s) can also resign from their appointment.
Under certain circumstances the Tasmanian Guardianship and Administration Board can cancel an Advance Care Directive or enduring guardian appointment.
Advance care planning in the context of mental health
For people living 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 and therefore people living with mental illness receive treatments under the same laws.
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 a decision-maker.
Applicability in other states and territories
In general, a Tasmanian Advance Care Directive completed by the competent person 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
In general, a valid advance care directive from another jurisdiction will be recognised in Tasmania as an advance care directive and used accordingly. It may be recognised under common law.
Valid interstate appointments of a substitute decision-maker(s), once registered with the Tasmanian Guardianship and Administration Board, are also recognised. The Application for Recognition of Interstate Appointment form should be used to do this.