There is no such thing as an easy decision when it comes to end-of-life planning. There are just hard choices, and harder choices.
Sorting out issues and complex family dilemmas relating to the end of a loved one’s life adds yet another layer of stress and burden to what is already a difficult situation under heartbreaking circumstances.
That’s why end-of-life planning is so important. Issues and questions such as “What happens to my loved one’s body after they’re gone?” and “At what point do they prefer to pass on peacefully?” can tear families apart if everyone isn’t on the same page. It becomes even harder when your loved one in question is no longer able to make decisions about their medical care themselves.
Having a living will that spells out what the loved one wishes to happen if they’re no longer able to make informed decisions regarding medical treatment can save both you and everyone involved from unnecessary heartache and grief. We’ll cover what a living will is and what it includes, and offer guidelines on how to create a living will in each Australian state and territory.
What is a Living Will?
A living will, also known as an Advance Care Directive or Advance Healthcare Directive, is a legal document that outlines how an individual wants to manage their medical care should they become unable to make decisions regarding their treatment.
Living wills are not mandatory, but they’re extremely helpful to have. The document gives an individual’s family and trusted friends guidance during a crisis or health emergency, and gives them more agency and control over their care in a way that aligns with their values and preferences.
Difference Between a Living Will and Last Will
Both a living will and a last will are part of an individual’s estate planning. The main difference is their areas of focus and the domains they cover. A last will covers issues concerning property and inheritance after an individual passes on. A living will concerns medical treatment and health care decisions while the individual is still alive.
When Does a Living Will Go Into Effect?
Generally speaking, a living will goes into effect the moment an individual loses the capacity to make informed consent regarding their medical treatment.
While the particulars vary between states and territories, this is usually when the individual is in a coma, loses cognitive functioning, becomes gravely injured, becomes unresponsive due to an illness or disability, or loses the ability to communicate.
The processes for creating a living will differ depending on the territory, but for a living will to be legally binding, it must:
- Be created by someone 18 years old or older
- Be signed by someone with clear judgment and a sound mind
- Be signed in the presence of witnesses
How Much Does a Living Will Cost?
The cost of creating a living will depends on where and how the will is made. The cost also factors in how big your estate planning is, how complex and comprehensive the document itself is, and whether you write it yourself or hire someone to do it for you.
If you hire an advanced care planning attorney or a Public Trustee to create your living will, it can range from $300-$3,000. You also have the option of using a do-it-yourself will kit for $100 or less.
While the latter is the more cost-effective option, it also carries the risk of being invalid if done incorrectly. If you choose to create your own living will, it’s advisable to have it examined by an estate planner or attorney before making it official.
What Does a Living Will Need to Include?
Each state and territorial government has its own requirements on what a living will should include, but broadly speaking it needs to have:
Your name and address as the principal of the will. This might include other identifying information such as your occupation and date of birth.
Power of Attorney
Who you appoint as your representative to make choices regarding your end-of-life care in the event you’re no longer able to do it yourself. This may be a family member, or a trusted friend. Your power of attorney should be someone you trust implicitly to act in your best interests and make important decisions about your medical treatment on your behalf.
Your End-of-Life Care Preferences
This is the important part. Your living will needs to outline what you want to happen during situations regarding your end-of-life care, such as:
- CPR: Whether or not you want to be resuscitated if your heart stops, whether by mouth-to-mouth CPR or a defibrillator
- Palliative and Hospice Care: Provisions that keep you comfortable during your treatment and end-of-life care. This includes whether or not you wish to receive pain medication, die in your own home, or avoid any invasive testing
- Organ and Body Donations: Whether or not you wish to have your organs donated for emergency transplants, or have your body donated for scientific study
How to Make a Living Will in Australia
Living wills in Australia all abide by common law principles, most notably:
- The right to refuse medical treatment, both now and in the future
- The assumption that adults can refuse or consent to medical treatment
They require the individual in question to be 18 years of age or older, and the document is signed in the presence of at least two witnesses, usually the power of attorney and a medical professional. In some cases, the witness may also be a legal official or representative like an attorney or a Commissioner of Declarations.
When created and signed, you should upload the living will to My Health Record, Australia’s digital health record system. There, the living will can be accessed by doctors and the individual’s care team so they know to proceed when the individual becomes unable to communicate or give consent.
Australian Capital Territory (ACT)
In the ACT, the living will is called a “Health Direction. It outlines preferences for treatment and the appointment of a decision-maker for end-of-life planning.
The Health Direction must be signed in the presence of two witnesses and takes effect when the individual can no longer make their own decisions.
In South Australia, an Advance Care Directive must be signed by someone 18 years or older, who understands what an Advance Care Directive is, what it’s for, and how it will be used. The Advance Care Directive is also how you appoint a Substitute Decision Maker to act as your power of attorney for medical treatment.
Download the South Australia Advance Care Directive Form here.
A Victoria Living Will must be witnessed by two adults, one of whom must be a registered medical practitioner. Neither of them can be your Medical Treatment Decision Maker.
A living will, or Advance Personal Plan as it’s called in the Northern Territory (NT), requires you to fill in the Advance Personal Plan Form, which then must be witnessed by at least one of the following people:
- Justice of the Peace or Commissioner for Oaths
- Legal practitioner
- Health professional
- CEO of local government
- Social worker
- NT school principal
Afterward, you can choose to register your advance personal plan with a Public Trustee, although that isn’t required. If your appointed decision maker can make decisions regarding land, then your plan needs to be registered with the Land Titles Office.
New South Wales (NSW)
Unlike other states and territories in Australia, creating a living will in New South Wales doesn’t require you to fill out a specific form for your Advanced Care Directive. It can be written on a piece of paper, and signed unwitnessed.
You can, however, appoint one or more adults as Enduring Guardian to act on your instructions regarding your care. This can be a friend or relative, or someone else you trust to act on your wishes.
The state government of Tasmania refers to a living will as an Advance Care Directive for Care at the End of Life.
Advance Care Planning in Tasmania requires a Person Responsible, a designated individual who takes over when you can’t make healthcare decisions for yourself. You can designate this person yourself by appointing an Enduring Guardian. If no Enduring Guardian is designated in the directive, the Person Responsible is (in order of priority):
- Your spouse
- An unpaid caregiver who helps the individual at home
- A close relative or personal friend with an interest in the individual’s wellbeing
An Advance Health Directive in Western Australia includes decisions about medical, surgical, and dental treatments, as well as palliative care and decisions regarding life support and resuscitation.
The individual creating the living will in Western Australia must complete their Advance Health Directive in the presence of two witnesses over 18 years of age, one of whom must be authorised to witness statutory declarations in Western Australia.
You can download the Advance Health Directive form here.
To create an Advance Health Directive in Queensland, you need to be 18 years old or older and understand the nature and effect of the directive.
Fill out Form 4 from the Queensland Government website, and appoint an enduring power of attorney in section 6.
You must then sign the completed form in the presence of an authorised witness, which can be:
- A justice of the peace
- A commissioner for declarations
- A notary public
- A lawyer
Final Thoughts on Living Wills
The best time to create a living will is now. No one likes to think about what will happen at the end of their life, but details like this can either rip families apart or bring them together. Planning your end-of-life care in advance can resolve painful and difficult moral dilemmas so you can live out your golden years in peace and comfort, without worrying about what you’ll leave behind for those you love.
The CareSide’s home care services include palliative care for those who wish to live out their final years in their own home, surrounded by the ones they love. Contact us today to learn more about how we can help you finalise your end-of-life care decisions