Serious illness can arrive without warning. You may not be able to speak for yourself in hospital. Your family may feel unsure about what you would want. Advance care planning removes the guesswork. It gives you control now and peace of mind later.
An Advance Care Directive in New South Wales lets you record your healthcare wishes in clear words. Doctors can then follow your choices if you lose capacity to decide or to communicate. Your loved ones will not need to guess. They can support you with confidence.
Many people include an Advance Care Directive as part of their broader elder law planning so their medical wishes align with their will, Enduring Guardian, and Power of Attorney documents. Below, you will learn how Advance Care Directives work in NSW, how to use an advance care directive template NSW, the legal requirements for validity, how an Advance Care Directive vs Enduring Guardian compares, and how to store and register your document.
What is an Advance Care Directive in NSW?
An Advance Care Directive (ACD) is a record of your healthcare decisions and values. It applies if you lose the ability to decide or to communicate. In NSW, there is no single Act that creates a standard form. A valid directive can still be legally binding under the common law if it is made correctly and applies to the situation.
Your directive can state treatments you want. It can also state treatments you refuse, such as no resuscitation or no ventilation in certain scenarios. It can explain what “quality of life” means to you. You can include religious or cultural wishes.
When and Why You Might Need One
You should make a directive while you have decision‑making capacity. Many people wait until retirement, after a new diagnosis, or before major surgery. It also makes sense for anyone who wants control over end‑of‑life care. If you face a condition that may affect thinking, such as dementia, plan early. A clear directive reduces conflict. It guides doctors and reduces stress for family.
What Can You Include?
You can include clear instructions and values. Use plain words so doctors can apply them. Helpful items include:
Specific medical treatments
- Resuscitation and intensive care
- Mechanical ventilation and life support
- Artificial nutrition or hydration through tubes
- Dialysis, chemotherapy, or antibiotics in advanced illness
- Pain relief and comfort care
Values and goals
- What quality of life means to you
- Preferences about being at home or in hospital when dying
- Spiritual or cultural practices you want respected
People and communication
- The details of your Enduring Guardian or substitute decision‑maker
- Who doctors should consult first
- Contact details for your GP and key specialists
Be as specific as you can. Give examples. For instance, you may accept a short trial of life support after a sudden event but refuse ongoing ventilation if recovery is unlikely.
Advance Care Directive vs Enduring Guardian: What is the Difference?
These two tools work together. They do not replace each other.
Advance Care Directive
- A document that records your health care decisions and values
- Guides doctors when you cannot decide
- Can include consent or refusal of treatments
Enduring Guardian
- A person you legally appoint to make health and lifestyle decisions if you lose capacity
- Can decide about accommodation and services
- Must follow your valid directive where it applies
A directive tells doctors and your Enduring Guardian what you want. Your Enduring Guardian makes decisions in areas your directive does not cover and handles day‑to‑day choices. For best protection, complete both.
Legal Requirements for Validity in NSW
In NSW, a common law directive can be valid if it meets core standards. Keep these points in mind:
- Capacity: You must understand the nature and effect of your decisions when you make the directive.
- Voluntary: You must act of your own free will. No pressure or coercion.
- Specific and applicable: Your instructions should relate to the healthcare situation that later arises. General values help doctors, but the clearer your directions, the stronger your directive.
- Form: Your directive can be verbal or written. A written directive is best. NSW Health offers a free advance care directive template NSW that you can use. It is not mandatory, but it helps you cover key points.
- Witnessing: The law does not require witnesses for a common law directive. Witnessing by a doctor or independent adult is still recommended. It helps prove you had capacity and were not pressured.
If a valid and applicable directive refuses a treatment, health professionals should follow it. If the situation does not match, your Enduring Guardian and treating team will decide based on your values and best interests.
How to Make an Advance Care Directive
Follow this simple pathway for making an Advance Care Directive that doctors can use in real life:
- Prepare. Talk with your GP about your diagnoses and likely future outcomes. Ask what decisions are common in your condition.
- Reflect. Write down what matters to you. Consider independence, comfort, and time with family.
- Draft. Use the NSW Health information booklet and advance care directive template NSW. Keep your language clear. State when you would accept or refuse treatments.
- Appoint an Enduring Guardian. Complete the appointment form with the required witnessing. Choose someone who can stay calm and act firmly.
- Review with your GP or specialist. Check that your instructions are medically clear and realistic.
- Sign and witness. While witnessing is optional for the directive, it is wise. Ask a health professional or independent adult to witness your signature.
- Share and store. Give copies to your Enduring Guardian, GP, specialists, and close family. Upload a PDF copy to My Health Record. Clear records and consistent instructions can also lower the risk of disputes that sometimes become will contests after death.
What Happens if You Do Not Have One?
If you cannot consent and have no directive, doctors must seek a person responsible under NSW law. The order is usually your Enduring Guardian if appointed, then spouse or partner, then unpaid carer, then a close friend or relative. If no one fits or the treatment is special, the Tribunal may need to decide. This can cause delay and stress. A clear directive and an appointed Enduring Guardian reduce these risks.
How to Update or Cancel a Directive
You can update or cancel your directive any time while you have capacity.
- To update: Make a new directive. Date it clearly. Mark older copies as “revoked” and destroy them. Share the new version widely and upload it to My Health Record.
- To cancel: Write and sign a short note that you revoke your directive. Tell your Enduring Guardian and your care team. Upload the update to My Health Record so the old version is removed or hidden.
When to Seek Legal Advice
Most people can complete a directive and appoint an Enduring Guardian without a lawyer. Legal advice is helpful if:
- There is family conflict or complex family dynamics
- You want to refuse treatments in very specific circumstances
- You are unsure about capacity, coercion, or witnessing
- You have interstate directives or plan to move
A solicitor can help you align your directive with your appointment of Enduring Guardian and your power of attorney. This keeps your estate plan consistent.
Put Your Wishes in Writing
Advance care planning is both practical and compassionate. NSW recognises common law Advance Care Directives when they are clear and applicable. A written directive, paired with an Enduring Guardian, reduces conflict and guides doctors to care that matches your values. It protects your family during hard moments.
Keep your directive alive and current. Review it each year or after major changes such as a new diagnosis, surgery, or a move. If you are at risk of dementia, plan early and keep your language simple and specific. Update or revoke the document as your views change. You can take control today and make sure your future care reflects what matters most to you.
If you want to make an Advance Care Directive in NSW, or you need help putting your wishes in clear, legally sound form, contact M de Mestre Lawyers on 0401 513 190 or email [email protected] for a confidential case assessment. We’ll explain how an Advance Care Directive works with an Appointment of Enduring Guardian, ensure the witnessing is done correctly, and help you share the document with your GP, hospital, and family so your wishes are followed.
Frequently Asked Questions (FAQs)
Is there an official advance care directive template NSW?
NSW Health provides a free form and booklet. It is not mandatory but it is well accepted in hospitals and by GPs.
Do I need a witness?
Witnessing is not required by law for a common law directive in NSW. A witness is still a strong safeguard. A health professional witness is ideal.
What is the difference between an advance care directive vs enduring guardian?
A directive records your medical wishes. An Enduring Guardian is a person you appoint to make health and lifestyle decisions if you cannot. Use both.
Can I include a do‑not‑resuscitate instruction?
Yes. Explain when it should apply. Use simple triggers, such as advanced incurable illness with little chance of recovery. Your doctor can help with wording.
How do I make an advance care directive for dementia?
Plan early. Write clear values and limits on burdensome treatments in late‑stage dementia. Appoint an Enduring Guardian who understands your wishes.
