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Have you thought about making a ‘living will’?

If you ended up in a situation where you were in the final stages of a terminal illness, or in a vegetative state where recovery was an unrealistic prospect, what could you have done to make your wishes for your health care known in advance?

A living will, more correctly called an “advance directive”, is defined in the Code of Health and Disability Services Consumers’ Rights as “a written or oral directive – a) by which a consumer makes a choice about possible future health care procedures; and b) that is intended to be effective only when he or she is incompetent”.

If you would like to make an advance directive (living will), there are some considerations regarding its timing and value as follows:

  1. You must make your advance directive while you are of sound mind and body, and it can only be used if you lose your competence.
  2. If you are receiving medical care and become mentally incompetent, or lose the ability to communicate, the health care practitioners who are treating you must act in your best interests.
  3. If you have an advance directive, your health care practitioners should take into account the wishes you have stated your advance directive, when deciding what treatment is in your best interests.
  4. You cannot demand any treatment which is unlawful at the time, such as euthanasia (currently), and you cannot refuse any compulsory treatment ordered under mental health legislation.

The types of situation in which advance directives may be helpful to your health care practitioners are:

  • If you are in the final stages of a terminal illness, or have an incurable condition and are likely to die within a short period of time; or
  • If you are in a coma or vegetative state that is likely to be of a permanent nature.

The type of instructions which your advance directive might contain are, for example:

  • That your right to refuse medical treatment and medication be respected
  • That you not be given any treatment designed to prolong your life
  • That you be given such care, attention and sustenance to keep you comfortable and free from pain and distress
  • That no techniques be used to maintain your existence if you are in a vegetative state
  • That any particular religious or cultural matters of importance to you be respected

If you make an advance directive, you should ensure that your health care providers, family, lawyer and religious advisor (if applicable) know that you have one and are aware of its contents.  If necessary, provide them with a copy.

Your advance directive takes priority over an enduring power of attorney in relation to personal care and welfare.

People in the health care sector are appreciative if a patient has an advance directive already in place, because they know what the patient’s wishes are, and can take them into account in formulating a health care plan for the patient.

When you go to see your lawyer to discuss matters such as estate planning, making a will and enduring powers of attorney, you could consider also making an advance directive to provide clarity for your family, health professionals and future caregivers, about your health care wishes.


This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.

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