Estate and succession law is built on one central pillar: preparedness. We draft wills to ensure our loved ones receive our assets when we cannot distribute them ourselves, and we sign Enduring Powers of Attorney so that in the event we cannot make decisions, someone we trust can. The lesser-discussed Advance Health Directive (AHD) is yet another example of preparing for the unknown.
What is an AHD?
AHDs provide principals with an opportunity to provide or withhold consent with respect to certain medical treatments and health care practices. The documents sit dormant, with no effect, until such time that the principal does not have the capacity to give directions themselves. Most importantly, they provide peace of mind that in the absence of such capacity, care teams are still made aware of a patient’s wishes.
AHDs are often referred to as ‘living wills’ for good reason. They are legal documents, witnessed by solicitors, which provide directions made by the principal. The distinction is that the content of the document relates to decisions regarding the principal that may be necessary to make whilst the principal is alive. AHDs allow principals to provide directions in relation to –
- Cardiopulmonary resuscitation (CPR);
- Assisted ventilation;
- Treatment that may obstruct natural dying;
- Removal of tissue after death, and
- Persons who are not to be contacted with respect to your treatment.
Who is involved in the preparation of an AHD?
Intuitively, the content of AHDs is largely medical in nature. The directions made by principals in the same are made for application in the context of a healthcare environment, and for this reason, AHDs must also be signed by a medical practitioner. The supervision of a medical practitioner during the preparation process (in addition to a solicitor) ensures that not only do principals access important legal advice, they also understand the practical and personal implications of the medical decisions which they are making. Conversely, AHDs also provide invaluable clarity for healthcare providers, who are empowered by the documents to act in accordance with the directions from the principal, rather than competing external pressures such as family and friends (excluding Attorneys).
Why prepare an AHD?
It can be a great comfort to know that if such a time comes that we become incapacitated, our directions are clear and available for review by our medical practitioners and care team. An AHD is often seen as an additional complementary safeguard to an Enduring Power of Attorney – the two documents together ensure that a principal is leaving any unforeseeable decisions in the hands of a trusted person, whilst they have explicitly made their own health-related decisions before the fact. The directions made in an AHD will override any conflicting decisions made by an attorney pursuant to section 35(3) of the Powers of Attorney Act 1988 (Qld).