When to make an Advance Health Directive

While you are in good health, it is difficult to imagine that one day you may become incapable of making or communicating decisions about your medical care. But it can happen to anyone, at any time. A sudden illness or accident may temporarily or permanently leave you without the faculties to decide on your treatment options. This can put an overwhelming stress on family who are left to try and discern your wishes and balance decisions regarding such critical issues as prolonging life and relieving suffering.

Therefore, the right time to act to get your Advance Health Directive in place is while you are in good health – i.e., now!

No matter what age you are now or what health condition you are in, planning ahead with an Advanced Health Directive today may relieve a lot of heartache and difficulty for your family in the future.

It is also of particular importance for those people who may not have close family or friends to help them with these decisions should the need arise.

What an Advance Health Directive (AHD) covers

An Advance Health Directive allows you to plan what medical treatment or health care you would like if you cannot make decisions for yourself.  It also enables you to appoint an enduring attorney for personal and health matters if you wish.

You can use your directive to express your wishes in a general way, such as stating that you would want to receive all available treatment.

You can include relevant information about yourself that health professionals should know, such as special health conditions, allergies to medications and religious, spiritual or cultural beliefs that could affect your care.

You can give specific instructions about certain medical treatments. For instance, you might feel strongly about whether or not you want to receive life-sustaining measures to prolong your life such as heart resuscitation, assisted ventilation or artificial nutrition and hydration.

You can use your directive to outline your views about the quality of life that would be acceptable to you. For instance, you might decide to specify that you would like life-sustaining measures withheld or withdrawn in certain situations, such as if you were to have:

• A terminal illness for which there is no known cure nor chance of you recovering.
• Severe and irreversible brain damage so that you are unable to communicate.
• An illness or injury so severe that there is no reasonable prospect that you will recover.

Limitations of an Advance Health Directive

While an AHD does let you retain responsibility for your care, it is not an open-ended document with unlimited power. It allows you to give specifics on your treatment wishes in certain medical situations, but it does not allow you to make any illegal requests, and it cannot in any way allow you to request or give instruction on euthanasia.

Similarly, they do not allow you to make requests on issues of basic care, such as hygiene and food.

The AHD does not replace a clinical treatment plan, but rather provides a reference to inform the treatment plan developed by your medical professionals.

Enduring Powers of Attorney and Advance Health Directives

If you have an Enduring Power of Attorney for personal and Health matters, your attorney or attorneys are authorised to make health care decisions for you for similar matters as are covered by an AHD .

The major difference is that in an AHD you make the decisions now for the care you wish whereas in the power of attorney your attorney makes the decisions for you but only if you are unable to make that decision for yourself at the time.

Preparing an Advance Health Directive

When putting your AHD together, it makes sense to consult with family members so that they are aware of the thinking behind your preferences, as well as giving them the opportunity to talk through their concerns about your decisions.

It’s also necessary to involve your general practitioner so that they can explain the medical options to you, answer your questions and clarify any concerns you have from a medical perspective.

To find out more about whether an Advance Health Directive is right for you or any of our Aged Rights Law services, contact one of our experienced Aged Rights lawyers.

The decision to move into an aged care facility

No one, who has full capacity to make decisions, can be forced to move into aged care if they don’t want to. The decision to enter an aged care facility, and to remain there, sits with the older person (i.e., scenario 1 – Grace is within her rights to make the decision as to where she resides, even if she has had advice to the contrary).

However, if the person has impaired decision-making capacity, (as is possible in scenario 2), a substitute decision maker can decide to place the older person in a care facility. People can appoint their own substitute decision maker in an Enduring Power of Attorney document (provided they have capacity at the time of the appointment).

When there is not a current and valid Enduring Power of Attorney, the process of accessing Aged Care facilities may be delayed. A substitute decision maker can be appointed by the Queensland Civil and Administrative Tribunal (QCAT), but this may be a lengthy and emotional process.

A capacity assessment of the older person by a specialist doctor will be undertaken prior to an appointment by QCAT. A hospital, family member, social worker or another person cannot make an older person go into an aged care facility unless this process has been followed, or he/she makes their own decision to go.

Do I need to be assessed before I move into Aged Care?

To move into an aged care facility, the person will be required to undertake a free assessment with the Aged Care Assessment Team (ACAT). An ACAT member will assess whether they will be able to receive government-subsidised aged care services, and help identify what types of care they need or whether they can to stay at home. They will also discuss what options are available locally. A doctor or hospital can make a referral to an ACAT, as can the person themselves.

Types of Aged Care Arrangements

There are two types of aged care arrangements for older people who are unable to care for themselves and who cannot (or do not want to) live with family or friends:

1. Residential aged care in a residential aged care home
2. Home care package, which allows people to remain in their own home whilst receiving in-home care.

The options available will very much depend on the services available in the area in which the elderly person lives, and the level and amount of care they require.

An Aged Care Assessment Team (ACAT) from the Department of Social Services gives free advice on the options available to an older person in the area they live. The ACAT can help work out a person’s needs and make a referral to the appropriate services.

More information

To discuss a potential Aged Rights matter, or to understand more about an Enduring Power of Attorney, contact

Catherine Cheek (Special Counsel)
Phone: 07 4639 0358
email: ccheek@cp484.ezyreg.com

What are your rights?

A person’s rights do not diminish when he or she moves into a nursing home or hostel, regardless of his or her physical or mental frailty or ability to exercise or fully appreciate his or her rights. Everyone has a right to receive a service that is appropriate to their needs. For example, in scenario 1, John’s wife has the right to be taken to the toilet as needed and within a reasonable amount of time. She should not have to wait unnecessarily, causing distress or discomfort, and compromising her right to be treated with dignity.

No older person should be subjected to any form of abuse, often referred to as ‘elder abuse’, as suspected in scenario 2. Elder abuse can take various forms such as physical, psychological or emotional, sexual or financial abuse. It can also be the result of intentional or unintentional neglect.

There is legislation that protects people in aged care facilities and which imposes obligations on service providers. If the service provider breaches their obligations to an older person, then the person or their representative may complain. There must be an internal process within the facility for dealing with complaints. If the internal complaint resolution is not appropriate or the complaint is not dealt with favourably, you can contact the Aged Care Complaints Scheme.

What to do?

If you have any concerns or complaints regarding the provision of aged care services, you can contact the Aged Care Complaints Scheme, or if there are concerns about Elder Abuse, the Elder Abuse Prevention Unit.

You are also welcome to discuss a potential Aged Rights matter by calling Catherine Cheek (Special Counsel)

Phone: 07 4639 0358
Email: ccheek@cp484.ezyreg.com