Advance Care Directives
An Advance Care Directive enables you to express and reflect your personal values, beliefs, care preferences, and to appoint Substitute Decision Makers if you lose decision-making capacity.
At Grope Hamilton Lawyers, we specialise in Advance Care Directive legal services, providing clear and tailored guidance to ensure your directive is properly prepared, witnessed and legally effective.
Why a Strong and Valid Advance Care Directive Matters？
An Advance Care Directive is a legally binding document that allows any adult with decision-making capacity to set out their wishes, preferences and instructions for future health care, end-of-life care, accommodation and other personal matters. It also lets you appoint one or more trusted individuals, known as Substitute Decision Makers, to act for you
if you can no longer decide for yourself.
Having a valid Advance Care Directive means your choices are known, respected and followed when you can no longer speak for yourself. Life does not always unfold the way we expect. A clear directive prevents decisions based on guesswork or made by people who may not fully understand your values. It guides loved ones and medical professionals, helps avoid confusion, and reduces the likelihood that disputes will need to go through formal legal processes.
An Advance Care Directive is more than a form kept on file. Medical situations are often complex, and your directive may need to be applied years after it was written, in circumstances no one could have predicted. What seemed clear at the time may raise questions later, especially if your condition changes or you express different views while living with reduced capacity. Beyond medical decisions alone, your directive can also clearly document your personal values, religious or cultural beliefs, and preferences about who you wish to involve in your care. A vague or poorly prepared directive can create uncertainty at the very moment clarity is most needed.
That is why an Advance Care Directive must be more than
legally valid. It should be carefully worded, realistic, and capable
of guiding others in complex and unpredictable situations. This
includes appointing the right Substitute Decision Maker and
ensuring your instructions are both clear and reflective of your true intentions. Obtaining legal advice helps ensure your directive accurately captures your medical wishes as well as your broader personal values, is properly witnessed in accordance with legal requirements, and can be reliably followed by your family, your healthcare professionals, and anyone who may one day need to speak on your behalf.
Why Grope Hamilton Lawyers？
At Grope Hamilton Lawyers, we offer far more than document preparation. With over 42 years of practical legal experience, we understand that an effective Advance Care Directive must withstand the complexities and uncertainties of real life situations.
We take the time to listen to your individual wishes and carefully translate them into clear, legally enforceable instructions. We advise you on selecting suitable Substitute Decision Makers, ensuring they fully grasp their roles, responsibilities and obligations, including how critical it is to honour and respect your expressed wishes.
Our extensive experience means we anticipate potential areas of confusion or conflict and proactively address them. We guide you through the formal witnessing requirements, confirm your understanding and capacity, and make sure your directive aligns seamlessly with other legal arrangements you may already have.
Above all, we are committed to protecting your legal rights. Should questions or disputes ever arise, our familiarity with your circumstances enables us to swiftly provide advice, clarity and support, ensuring your voice remains at the centre of decisions made about your care.
*You can access further information in the Advance Care Directive Fact Sheet.
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Frequently Asked Questions
An Advance Care Directive formally takes effect as soon as it has been signed and properly witnessed in accordance with the Advance Care Directives Act 2013 (SA). However, although it is legally valid immediately, it can only be actively used when the person who made the directive loses the capacity to make specific decisions themselves. Decision-making capacity relates directly to the ability to understand and retain relevant information, consider and weigh up options, and clearly communicate a choice regarding a particular decision.
Decision-making capacity can fluctuate and may change over time or differ depending on the type of decision required. Losing capacity to make one decision does not necessarily mean a person has lost capacity for all decisions. For instance, a person may be unable to make complex medical decisions but remain able to make simpler, day to day choices. The Advance Care Directive is used by appointed Substitute Decision Makers and medical professionals only when it is clear that the person cannot make the relevant decisions independently.
An Advance Care Directive remains effective until certain specific events occur. It will end if the person who created it completes a new Advance Care Directive, as this automatically revokes any previous directives. Additionally, the directive ends if the person expressly revokes it in writing and provided they still have decision-making capacity at that time, or if they pass away. If the directive contains an expiry date, it will also cease to be effective once that date is reached.
Appointments of Substitute Decision Makers also end if revoked by the person who appointed them while the person still has capacity, if all appointed Substitute Decision Makers are unable or unwilling to act, or if the Substitute Decision Makers resign from their roles. In exceptional circumstances, the South Australian Civil and Administrative Tribunal (SACAT) may also revoke or vary an Advance Care Directive or the appointment of Substitute Decision Makers.
At Grope Hamilton Lawyers, we understand that life is rerely predictable, and your needs and wishes can change over time. Regularly reviewing your Advance Care Directive ensures it remains up to date, accurately reflects your current situation, and can effectively guide decisions made on your behalf. Our experienced wills and estate planning team is here to support you through each step, helping you maintain clarity, protect your rights, and ensure your peace of mind.
Appointing a substitute decision maker under an Advance Care Directive is not simply about naming someone you trust. It means selecting someone who recognises the seriousness of the role and is prepared to carry it out with care, objectivity and respect for your personal values.
This is a legal respobsibility. A Substitute Decision Maker must act according to the wishes and instructions recored in the directive. If those wishes are not explicity stated, the decision maker is legally required to make every resonable effort to determine what you would have wanted, based on your past values, bliefs and life choices, not their own views or preferences. Importantly, their role is not to decide what seems best to them, but to step into your position and make the decisions you would likly have made, even of those decisions involve risks or others may find difficult to accept.
Failure to comply with these obligations can result in legal consequences. The South Australian Civil and Administrative Tribunal has the authority to revoke an appointment. And in some cases such as knowingly acting after a directive has been revoked or acting in other's benefits, criminal penalties may apply.
At Grope Hamilton Lawyers, we guide both directive makers and their nominated decision makers through their rolew with clarity and care. We ensure everyone involved understands the scope of their authority, the limits of their powers, and their obligatios under the law. We also make sure your directive is correctly and lawfully witnessed, ensuring it is legally valid and enforceable when you need it most.
When choosing your Substitute Decision Maker, you can appoint any adult you trust, provided they fully understand and accept the responsibilities of the role. People commonly appoint family members, such as a spouse, partner, adult children or siblings, or a close friend who clearly understands their values and is willing to respect their wishes.
However, South Australian law specifies that certain individuals are not eligible to act as your Substitute Decision Maker. Specifically, you cannot appoint:
If you don’t have anyone suitable available to appoint, or you prefer not to appoint a Substitute Decision Maker, you can still document your wishes clearly in an Advance Care Directive. In such cases, you might consider uploading your completed directive to your My Health Record. If you later lose decision-making capacity and no Substitute Decision Maker has been appointed, the Office of the Public Advocate may become involved to help ensure decisions align with your expressed instructions.
Disputes regarding an Advance Care Directive can arise in various circumstances, including uncertainty about whether the person and decison-making capacity at the time the directive was created, differing interpretations of the person's expressed wishes, or tension between Substitute Decision Makers, family members and healthcare providers about how the directive should be implemented.
In South Australia, disputes relating to Advance Care Directvies can be referred to the Office of the Public Advocate or the South Australian Civil and Administrative Tribunal. At Grope Hamilton Lawyers, our experienced team provides strategic and practical legal guidance on these sentitive matters. We clarify the legal criteria for a valid directive, advise on the appropriateness of mediation or formal review, and clarify outline the procedural steps involved. If you're facing a dispute over an Advance Care Directive or want clariy before one arises, speak with our team today for informed and tailored legal support.