What is a Living Will in Australia? Enforceability Explained
When planning for the future, most people think about preparing a will to divide their assets after death. However, another important document in Wills & Estate Planning Law is a living will, also known as an advance care directive. Unlike a traditional will, a living will applies while you are still alive, setting out your preferences for medical treatment if you cannot make or communicate decisions yourself. This article explores what a living will is in Australia, whether it is legally enforceable, and why it is an important step in estate planning.
What is a Living Will?
A living will, commonly referred to in Australia as an advance care directive, is a legal document that outlines your medical treatment preferences in the event you lose the capacity to make decisions. It can include:
Whether you consent to life-prolonging treatments.
Your preferences about pain management.
Instructions regarding resuscitation.
Decisions about artificial feeding or hydration.
The key difference from a standard will is timing: a living will applies during your lifetime, while a traditional will comes into effect only after death.
Why Consider a Living Will?
The main purpose of a living will is to ensure your wishes are respected if you become seriously ill, unconscious, or unable to communicate. Without one, your loved ones or medical professionals may be left to make difficult decisions about your care. This can lead to conflict, uncertainty, and emotional distress.
Having a living will provides:
Clarity - doctors and family members know exactly what you want.
Control - you maintain autonomy over healthcare decisions, even when incapacitated.
Relief for loved ones - they are spared the burden of making heartbreaking choices.
Is a Living Will Enforceable in Australia?
The enforceability of a living will depends on the laws of each state and territory in Australia, as regulations differ across jurisdictions. Generally, a properly made advance care directive is legally binding.
Examples of enforceability:
In New South Wales, a written advance care directive that is clear, specific, and made voluntarily is legally binding under common law.
In Victoria, the Medical Treatment Planning and Decisions Act 2016 provides a statutory framework, making advance care directives legally enforceable.
In Queensland, the Powers of Attorney Act 1998 recognises advance health directives as legally binding.
Doctors and healthcare professionals must follow the instructions set out in a valid living will, provided it applies to the medical situation at hand. However, if the directive is vague, outdated, or not properly executed, there may be grounds for it to be disregarded.
Limitations of a Living Will
While a living will is a powerful tool, it does have limitations:
Scope: It cannot cover every possible medical scenario, especially unforeseen treatments.
Interpretation: Ambiguities in wording may cause disputes among doctors or family.
Changing circumstances: Advances in medicine or changes in personal beliefs can make directives outdated.
Legal challenges: If family members disagree, the matter may end up before a tribunal or court.
For this reason, it is essential to review and update your living will regularly, particularly after major life events or health changes.
How to Make a Living Will in Australia
Creating a living will is a relatively straightforward process, but it should be approached carefully to ensure it is valid and enforceable. The steps generally include:
Discuss your wishes - talk to your doctor and family about your healthcare preferences.
Complete the correct form - each jurisdiction has its own recognised format or requirements.
Sign and witness - the document must be signed, usually in the presence of an authorised witness.
Share copies - provide copies to your doctor, hospital, family, and lawyer.
Living Will vs Enduring Power of Attorney
A living will is often used alongside an enduring power of attorney (medical treatment). While a living will sets out specific treatment instructions, an enduring power of attorney allows you to appoint someone you trust to make healthcare decisions on your behalf.
Together, these documents form a stronger safeguard, ensuring both clarity of your wishes and flexibility in decision-making.
The Role of Lawyers in Drafting a Living Will
Although some people prepare living wills on their own, engaging a lawyer offers significant benefits. An experienced estate planning lawyer can:
Ensure the document complies with state-specific legislation.
Draft clear, unambiguous terms to avoid disputes.
Provide advice on combining your living will with other estate planning documents.
Help update or revoke the directive when circumstances change.
In short, professional legal advice provides peace of mind that your wishes will be respected.
A living will is an essential part of Wills & Estate Planning Law in Australia, giving individuals the ability to make their healthcare choices known and legally enforceable. While enforceability varies between states and territories, a properly drafted living will carries significant weight and ensures your autonomy is preserved in critical medical situations.
If you are considering making a living will or want to review your current estate planning arrangements, now is the time to act. At New South Lawyers, our team of dedicated estate planning experts can guide you through every step, ensuring your wishes are clearly expressed and legally enforceable.
Contact New South Lawyers today to start planning with confidence and protect both your future and your loved ones.
