In the estate planning process, one aspect that is often overlooked is what will happen in a situation where the person is still alive but unable to make medical decisions on their own behalf.
Without some sort of legal directive, a person may end up receiving unwanted and unnecessary treatment in acute care settings, with potentially adverse outcomes.
This is why it is vitally important that, in addition to planning what will happen after someone dies, people in the estate planning process make provisions for what could happen if they are incapacitated and need medical decisions made for them.
One way is the creation of an advance care directive.
This is a document that describes a person's future preferences for medical treatment in anticipation of a time when they are unable to express their wishes because of illness or injury. This document is sometimes known as a "living will".
The advance care directive will usually contain information on who you want to make treatment decisions for you. It may also set out the treatments or medical procedures you object to being performed on you.
In the event you are incapacitated and unlikely to recover, a living will should have information on whether you want medical help to prolong your life.
In New South Wales, advance care directives are legally binding if they comply with the requirements set out by the NSW Department of Health. These directives function as an extension of the common law right to determine one's own medical treatment.
This comes from an Australian case that involved a patient who was a Jehovah's Witness. They had prepared an advance care directive that clearly stated their wish was to only receive medical treatment conforming with their religious beliefs.
Since that case, many states have enacted legislation to enshrine in law advance care directives and the concept of a legally binding living will.
It is not always necessary to have a written advance care directive. A person can instead verbally communicate their end-of-life wishes or medical preferences to their doctor. People can also appoint a family member or substitute decision-maker with guardianship to make treatment decisions on their behalf.
If you are thinking about making an advance care directive as part of the wills and estate planning process, you should contact a wills and estates lawyer.