Part Six: Advance Directives
If you’ve ever played “Would You Rather…”, you know that the game can get heated and controversial very quickly. Well, now imagine that you can no longer make decisions about your health, and your family has to step in. They may find themselves in the position of playing “Would You Rather” on your behalf and having to guess what your preferred answer would be.
This is where an Advance Directive plays a role. It is a statement that sets out (in advance, as the name suggests) the treatment and care you want or do not want if you become unwell and are not competent to make or communicate decisions yourself.
If you’ve never heard of an Advance Directive, don’t worry (I hadn’t before I began the asset and estate planning process). We’re going to dive into the details.
In our asset and estate planning guide, we use 🚨 to denote points that are specific to parents. Well, in this article, there aren’t any. While you might want to think about your child and their interests when expressing your treatment and care preferences, an advance directive is essentially about what you want.
Advance directives: do you even need one?
Short answer: not necessarily. Some people prefer to make decisions about their health in advance, while others prefer to make decisions about their health as and when the need arises.
Here are the pros and cons to consider:
Advantages
They help to ensure that your wishes are respected when you are unable to advocate for yourself.
They encourage openness, dialogue and forward planning with respect to your health care and treatment decisions.
Disadvantages
They need to be regularly reviewed because they go out of date easily. This is because:
Health care is continually developing and improving - there may be new and improved treatment options that did not exist when you first created your advance directive
Often, people’s views on treatment and care change over time
Treatment decisions are complex, and you cannot predict or account for every future health scenario or decision that may need to be made.
An advance directive only takes effect when you can no longer make sound decisions
Advance directives are only considered if you lose mental capacity, are unconscious, or are otherwise unable to communicate. In these situations, doctors are required to act in your best interests. This includes considering your wishes with respect to treatment and care, as laid out in your advance directive.
Example scenarios can include (and bear with us, they are grim, and we hope you don’t face them):
If you’re in the final phase of a terminal illness or condition that is incurable and you’re likely to die within a few months, at most
If you’re in a persistent vegetative state or coma
If you have an illness or injury of such severity that there is no reasonable prospect that you will recover
But what is my enduring power of attorney for then?
Advance directives set out your wishes in relation to treatment and care. Advance directives are referred to by your treatment team but do not always have to be followed (see below).
Enduring powers of attorney in relation to personal care and welfare give a person the power to make decisions on your health and welfare if you cannot (you can read more here).
Advance directives are a facet of choice and empowerment regarding your treatment and care, but they should not be relied upon in isolation. If you would like to prepare an advance directive, we recommend you do this in conjunction with an enduring power of attorney for personal care and welfare.
This way, your appointed attorney will benefit from knowing your wishes in your advance directive and can balance them with the current treatment options and advice that exist at the relevant time.
Doctors take your advance directive into account, but it’s not binding
Doctors are not obliged to follow an advance directive if they disagree with it. If this happens, where possible, the doctor should remove themselves from the treatment team and recommend another doctor to take their place.
In deciding whether to follow your advance directive, doctors will also consider the following:
Were you competent to make the decision when you made the advance directive?
Did you make the decision of your own free will?
Were you sufficiently informed to make the decision?
Did you intend your directive to apply to present circumstances that may differ from those anticipated?
Is the advance directive out of date?
Typical requests in an advance directive
There is no prescribed form for an advanced directive. However, people often include statements such as:
The primary goal should be to relieve symptoms of pain and distress and not to prolong life.
If their heart stops, no attempt should be made to restart it.
Do not give food, fluid or regular medications by artificial means except to relieve obvious suffering.
A preference for home or hospice care as the end-of-life approaches.
Creating an advance directive
The good news is that it’s relatively easy to make an advance directive. A lawyer does not need to be involved, but they can help. There are no ‘rules’ regarding how advance directives must be made. However, if you’re looking for guidance, we suggest a four-step process:
Make it in writing. You can find templates on Health Navigator and Stanford Medical
Talk to your doctor or a trusted health worker about your options.
Involve your family in preparing it so that they know your wishes and can support and advocate for you if the need arises.
Keep a copy yourself and also give copies to your family, lawyer and doctor.
This is part of Crayon’s mini-series on asset and estate planning for parents:
Now for the important legal part: The information we provide is general and not regulated financial advice for the purposes of the Financial Markets Conduct Act 2013. Please seek independent legal, financial, tax or other advice in considering whether the content in this article is appropriate for your goals, situation or needs. The information in this article is current as at 9 January 2023.
All of our content is independent. Crayon provides you with accurate and valuable information you can use to make smart money moves for your family. We work with people we respect, and all collaborations are unpaid.
Sarah Kelly
Senior Associate, Private Wealth team at Dentons Kensington Swan
Stephanie Pow
Founder and CEO, Crayon
