Advance Care Directives Act, 2013

The Advance Care Directive Act  (ACD Act) 2013 was passed by the South Australian Parliament in April 2013 and will come into effect at a date to be announced. This Act creates a single advance care directive to replace the existing Enduring Power of Guardianship, Medical Power of Attorney and Anticipatory Direction documents.

The ACD Act also makes amendments to the Guardianship and Administration Act, 1993 and the Consent to Medical Treatment and Palliative Care Act, 1995 and the Guardianship and Administration Act, 1993. 

The intent of the ACD Act is to preserve the right of competent adults to make a legal document which directs in advance what quality of life means to them, how they wish to live and how they want decisions to be made for them if they experience impaired decision making capacity.  The information enables substitute decision makers (if any are appointed) health practitioners, family members and others to make decisions based on knowledge of an individual’s preferences and values. 

The ACD Act supports a person centred model of decision making and takes a rights based approach to substitute decision making.  The Act is underpinned by a set of overarching Principles which support the right of people to make their own decisions for as long as possible, and if necessary, to be supported in making decisions if they have difficulty in doing so.  If a circumstance occurs where a person in not able to make decisions even with support, substitute- decision makers must ‘stand in the shoes’ of the person and make decisions as she/he would have done, prior to losing  the capacity to make that decision.  The Principles must be taken into account and applied in the administration, operation and enforcement of the Act, including in the resolution of disputes.

What this means for the Office of the Public Advocate

At times disagreements arise between family members, friends, health and service providers about decisions that need to be made for someone who has impaired decision making capacity.  The conflict can cause division and leave the person who has the impairment without the support and interaction that they want and need.    The ACD Act authorises the OPA to assist to resolve disagreements under an advance care directive in an informal manner without the need to resort to formal proceedings before the Guardianship Board. 

The OPA has employed a Senior Project Officer to develop its dispute resolution programme which includes the provision of information and advice, providing a declaration in relation to an advance care directive and a mediation service. During stage one of the project, the Senior Project Officer, in consultation with key stakeholders has developed a model of mediation that ensures that the rights of the person who made the advance care directive are upheld and where everyone involved is able to share their views and discuss the issues with the aim of coming to an agreement that will respect the person’s wishes and views.   Read the mediation information sheet

The mediation model is person centred, placing the person who made the advance care directive at the centre of the decision making process and providing support to enable the participation of the person to the fullest extent of their abilities.  The model ensures that the thoughts, views and wishes of the person are brought into the mediation even if the person is not able to take part directly in the mediation. The OPA are currently undertaking a trial of the mediation model and a limited mediation service is now available prior to the commencement of the new Act. Interested persons can contact the Senior Project Officer, Elly Nitschke, on 8342 8200 if they would like further information about this service. You may also like to read our Draft Practice Guidelines