If you are starting to think about what will happen to your estate when you pass away or what may happen if you become unsound of mind, then you are not alone.
A Living Will in NSW or Advance Care Directive exists for this exact reason. In particular, an Advance Care directive provides reassurance about medical decisions concerning you if you were to fall ill and be rendered unable to make medical decisions for yourself.
The following article contains the most commonly asked questions about a living Will in NSW and what you need to know.
What Is a Living Will In NSW?
All States in Australia recognise different forms of estate-planning instruments referred to as a health direction, advance directive or something similar. These documents are broadly known as a living Will.
The purpose of the living Will is to state an individual’s future medical treatment in circumstances where they cannot provide informed consent. A living Will supersedes other estate documents that appoint another person to make decisions on your behalf.
In NSW, a living Will is known as an Advance Care Directive. Under NSW state law, a person who lacks the capacity to refuse medical treatment may refuse the treatment in advance.
For a living Will to be legally valid, it must:
- Contain enough specific details so that it applies to the situation that arises in the future; and
- Be made voluntarily without anybody forcing the maker of the Will by someone who has the mental capacity to make the Will (be sound of mind).
Accordingly, the key to making a living Will legally valid and enforceable is ensuring that you have made it voluntarily and understand its full effect.
What To Include In An Advance Care Directive
When making a living Will in NSW or advance care directive, you should include multiple things.
Before this, you should consider your values and what is important to you if you become ill and mentally unable to make decisions regarding your health yourself.
Such considerations include:
- What location or facility you would like to be cared for in if you become incapacitated;
- The person you would like to appoint as decision-maker for you if you become unable to make decisions for yourself. This is known as an enduring guardian; and
- The forms of care you would refuse and accept.
The most common detail included in an Advance Care Directive relates to whether you would accept or refuse resuscitation in the case of being kept alive on life support.
After you have thought about and discussed your wishes with friends, family and a doctor, you should obtain legal advice from an experienced Wills & Estates solicitor.
How To Make An Advance Care Directive In NSW
To make an Advance Care Directive or Living Will in NSW, you can:
1. Write a statement or letter that outlines your medical wishes; and
2. Discuss these wishes with someone you trust.
For an Advance Care directive to be legally valid:
1. It must apply to the medical situation the person is currently in at the time of the Advance Care Directive being called in question; and
2. The Advance Care Directive clearly outlines the wishes of the person, including specific treatment options; and
3. The person who wrote the Advance Care Directive has what is known as ‘testamentary capacity’ when writing the document.
If your Advance Care Directive is legally valid, it cannot be overridden by the wishes of your family members or any medical professionals.
Final Thoughts On Living Wills In NSW
A living Will In NSW is an essential document because it informs others of your medical decisions and end-of-life wishes in the event you become unable to do so.
It is vital that you keep your living Will stored securely and up to date. It is also essential to have a copy stored with a solicitor and a loved one to ensure that your wishes are carried out.
Given the importance of the information contained in a living Will, it is worth the cost.
Importance of Seeking Legal Advice
When discussing matters such as a living Will in NSW, you must do your proper research and spend adequate time considering your wishes for your Advance Care Directive.
Once you have done this, it is recommended that you seek the advice of an experienced Wills & Estates solicitor to help discuss your best options for your particular situation.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way.
With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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