Making an advance care directive

Any person with the decision-making capacity to do so can make an advance care directive. This includes children under the age of 18 years and people with disability, providing they have the decision-making capacity to do so.

Decision-making capacity

A person has decision-making capacity if they are able to:

• understand the information relevant to the decision and the effect of the decision
• retain that information to the extent necessary to make that decision
• use or weigh that information as part of the process of making the decision
• communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gestures or other means.

A person may have capacity for some decisions but not others.

If a person is able to make a decision with practicable and appropriate support (such as additional time or a communication aid), then they have decision-making capacity to make that decision.

It is the responsibility of the health practitioner to determine if a person has decision-making capacity.

An advance care directive is only used when you have lost your capacity to consent to or refuse medical treatment.

Except in an emergency, health practitioners need your consent before providing treatment.

If you have lost capacity to make a medical treatment decision, your health practitioner must make reasonable efforts to find out whether you made an advance care directive with a relevant instructional directive.

If you have, your health practitioner follows your instructions in the directive.

If you do not have decision-making capacity to make a medical treatment decision, and have not made a relevant instructional directive, your health practitioner will ask your medical treatment decision maker to make the decision on your behalf.

The Medical Treatment Planning and Decisions Act specifies who your medical treatment decision maker is.

Your medical treatment decision maker needs to make the decision they reasonably believe you would make. To do this, they must consider, among other things:

• your values directive (if applicable)
• other values or preferences you have expressed.

The medical treatment decision maker is the first person in the list below who is reasonably available, and willing and able to make the decision:

1. a medical treatment decision maker appointed by the patient
2. a guardian appointed by VCAT to make decisions about medical treatment
3. the first person in the list below who is in a close and continuing relationship with the patient:
   1. the patient's spouse or domestic partner
   2. the patient's primary carer (not a paid service provider)
   3. an adult child of the patient
   4. a parent of the patient
   5. an adult sibling.

If there are two or more relatives who are first on this list, it is the eldest person.

Note: Before the Medical Treatment Planning and Decisions Act commenced in 2018, the patient may have appointed someone to make medical treatment decisions in a medical enduring power of attorney, an enduring power of attorney, or enduring power of guardianship. These appointments are still valid.

Valid appointments made in other Australian states and territories are also recognised. 

1. Think about what is important to you

This is easiest to do while you are well.

For example, you may value:

• living in your own home
• maintaining connections with family and close friends
• retaining links to your community
• specific activities.

Think about how important the following is for you:

• managing pain and suffering
• longevity
• dignity
• independence.

2. Let those close to you know what is important to you

It is important people close to you understand what you value and your wishes. If they know this, it will help make sure decisions are made as you would want in the future.

3. Complete the forms

Find the advance care directive form, and instructions for completing it, on the Victorian Government Health website.

Please note: These forms are created and managed by the Department of Health. You may need to scroll down the page to find the form.

Below is a checklist with some things to think about before you sign. It is not a complete list, but is to help you think carefully before you sign.

If there is a question you do not feel able to answer, you may wish to get more information.

☐ Do you know the difference between a values directive and an instructional directive in an advance care directive?

☐ If you make an instructional directive, do you know whether your health practitioners are required to follow it?

☐ Have you discussed the benefits/risks in making an instructional directive with your health practitioner(s)?

☐ Are there really any risks in making a values directive?

☐ If you make an advance care directive, do you know who you should give copies to and where you should keep the originals?

☐ If you have previously had mental health concerns, have you considered documenting your preferences and values for any treatment for mental illness in an advance statement as well as in an advance care directive?

Step 1: Check you are the right person to witness the document

For an advance care directive, two adult witnesses are required.

One must be a registered medical practitioner.

Neither witness can be an appointed medical treatment decision maker for the person.

Step 2: Read the advance care directive form

You must be satisfied that the person understands each statement in their advance care directive.

Step 3: Ask questions

When you act as witness, you certify that the person appeared to have decision-making capacity (see above) to make the document.

If the person has included a values directive in their advance care directive, you should be satisfied that they understand this is a statement of their values and preferences for their medical treatment, to guide their medical treatment decision maker and health practitioner.

If they have included an instructional directive, you should be satisfied they understand that health practitioners are bound to follow their instructions.

Things to check

You must be satisfied that the person understands each statement in their advance care directive.

If you are the witness who is a registered medical practitioner, you should draw on your medical expertise when checking that the person’s instructional directive is clear and unambiguous for a health practitioner who needs to refer to it in the future.

Step 4: Witnessing

If you are satisfied of the things described above and set out in the table below, the person signs in front of you and the other witness.

You both then sign and date the witness certification.

If you use an interpreter to communicate with the person, there is a place in the witnessing section of the form for the interpreter to sign. For this reason, you will need to use a face-to-face interpreter.

What you are certifying

Your advance care directive ends when:

• you complete a new advance care directive
• you revoke (cancel) the appointment which you have decision-making capacity to do so
• the Victorian Civil and Administrative Tribunal cancels it
• you die.

Revoking an advance care directive

To revoke an advance care directive you must have decision-making capacity to do so.

Find the revocation form on the Victorian Government Health website.

If you revoke your advance care directive, you should inform your medical treatment decision maker(s) and any relevant health practitioner(s), and retrieve any copies.