The Legal Requirements for an Advanced Health Care Directive in Australia

As an advance care planning specialist with extensive experience in Australian healthcare law, I've guided countless individuals through creating legally valid advance healthcare directives. Understanding the specific legal requirements for these important documents is essential to ensure your healthcare wishes will be respected when you cannot speak for yourself.

Understanding Advanced Care Directives in Australia

In Australia, an advance care directive (also called an advance health directive or advance healthcare directive) is a legally binding document that outlines your preferences for future medical treatment should you lose decision-making capacity. These directives form a crucial component of comprehensive advance care planning, allowing you to maintain autonomy over your healthcare decisions even when unable to communicate.

State and Territory Variations: A Critical Consideration

One of the most important aspects of Australian advance care planning is understanding that requirements vary significantly across different states and territories. Each jurisdiction has its own legislation governing these documents, including different terminology, witnessing requirements, and registration processes.

New South Wales

In NSW, advance care directives are recognised under common law rather than specific legislation. While this means there's no prescribed form, the NSW Health guidelines recommend documenting your wishes clearly and having your directive witnessed by a medical practitioner who has discussed the implications with you.

Victoria

Victoria's Medical Treatment Planning and Decisions Act 2016 established a clear framework for advance care directives. Valid directives must use the official form, be signed by the person making the directive, and be witnessed by two adults, one of whom must be a medical practitioner.

Queensland

In Queensland, advance health directives are governed by the Powers of Attorney Act 1998. The directive must be in the approved form, signed by the principal, and witnessed by an eligible witness (typically a justice of the peace, commissioner for declarations, lawyer, or notary public). A doctor must also complete a section confirming you understand the nature and effect of the directive.

South Australia

South Australia's advance care directives fall under the Advance Care Directives Act 2013. A valid directive requires the official form and must be witnessed by two independent adults who certify that you appeared to understand the document's nature.

Western Australia

Western Australia uses Advance Health Directives under the Guardianship and Administration Act 1990. The directive must follow the prescribed form, be signed by the maker, and be witnessed by two adults who are not related to the maker and are not beneficiaries under the maker's will.

Tasmania

Tasmania recognises advance care directives under common law. While there's no statutory form, Tasmanian Health Service recommends clear documentation of your wishes and discussion with healthcare providers.

Northern Territory

The Northern Territory's advance personal plans are governed by the Advance Personal Planning Act 2013. Plans must be in writing, signed by the person making the plan, and witnessed by an authorised witness who confirms the person appeared to have decision-making capacity.

Australian Capital Territory

In the ACT, Health Directions are covered under the Medical Treatment (Health Directions) Act 2006. A valid direction must be in writing, signed by the maker, and witnessed by two adults who are not directly responsible for the maker's healthcare.

Digital platforms like Evaheld can help navigate these jurisdictional differences by providing state-specific guidance and templates.

Essential Elements for Legal Validity

Despite these variations, several core requirements apply across all Australian jurisdictions:

Decision-Making Capacity

When creating your advance healthcare directive, you must have decision-making capacity. This means you must:

• Understand the information relevant to the healthcare decisions
• Retain that information
• Use or weigh that information as part of the decision-making process
• Communicate your decision

The Australian Law Reform Commission has emphasised the importance of presuming capacity unless proven otherwise.

Specificity and Clarity

Your directive must clearly specify the treatments you would accept or refuse under particular circumstances. Vague statements like "no heroic measures" are insufficient and may not be legally binding. Instead, provide specific guidance about interventions such as:

• Cardiopulmonary resuscitation
• Mechanical ventilation
• Artificial nutrition and hydration
• Dialysis
• Antibiotics for life-threatening infections

Appropriate Witnessing

Across all jurisdictions, proper witnessing is essential. Witnesses typically must certify that:

• You signed the document voluntarily
• You appeared to understand the document's nature and effect
• You had decision-making capacity at the time of signing

In most states, at least one witness must be a qualified person such as a medical practitioner, justice of the peace, or legal professional.

Ensuring Your Directive Is Accessible When Needed

Creating a legally valid document is only half the challenge—ensuring it's accessible during a medical crisis is equally important. Research published in the Medical Journal of Australia highlights that even properly executed directives often fail to influence care because they aren't available when needed.

Consider these strategies for accessibility:

• Provide copies to your GP and specialists
• Ensure your healthcare proxy has a copy
• Upload your directive to My Health Record, Australia's national electronic health record system
• Use digital advance care planning platforms that enable secure, emergency access

Reviewing and Updating Your Directive

Australian healthcare law recognises that preferences may change over time. While directives don't expire, regular review ensures they continue to reflect your current wishes. Consider reviewing your directive:

• Every 2-3 years
• After significant health changes
• Following major life events
• When moving between states or territories

When updating your directive, you must meet the same legal requirements as when creating the original document. Digital solutions can simplify this review process while maintaining legal compliance.

Appointing a Substitute Decision-Maker

Most Australian jurisdictions allow (and some require) the appointment of a substitute decision-maker alongside your advance directive. This person (variously called an enduring guardian, medical treatment decision maker, or attorney for personal matters) can make decisions on your behalf when you cannot.

The Office of the Public Advocate provides guidance on selecting and appointing an appropriate representative.

For guidance tailored to your needs, explore trusted dementia help sites, resources on family legacy preservation, online wills and estate planning platforms, and dedicated advance care directive resources. You’ll also find expert guidance and secure Evaheld Legacy Vault services, along with valuable information for nurses supporting end-of-life planning and values-based advance care planning. Evaheld is here to ensure your future planning is secure, meaningful, and deeply personal — with family legacy preservation resources designed to support your advance care planning, and those closest to you: families, carers, and communities.

Conclusion

Creating a legally valid advance healthcare directive in Australia requires careful attention to state-specific requirements. While the process may seem complex, proper documentation ensures your healthcare wishes will be respected even when you cannot communicate them directly.

Remember that advance care planning involves more than just completing forms—it's an ongoing conversation with loved ones and healthcare providers about your values and preferences. By understanding the legal requirements while focusing on clear communication, you create a powerful tool for maintaining control over your healthcare future.

For state-specific forms, detailed requirements, and secure digital storage, consider using Evaheld's comprehensive platform, which guides Australians through creating legally valid advance care directives tailored to their specific jurisdiction.