On 12 May 2016 the South Australian Government Gazette revealed changes to the Advance Care Directive form creating potentially another DIY nightmare for those using a DIY kit.
An Advance Care Directive is a legal form that allows people over the age of 18 years to write down their wishes, preferences and instructions for future health care, end of life issues, living arrangements and personal matters. It also allows people to appoint one or more Substitute Decision-Makers (SDMs) to make these decisions on their behalf when they are unable to do so themselves. An approved form must be used for the purpose of establishing a valid Advance Care Directive.
The changes to the approved form on 12 May 2016 have not been accompanied by any notice (for instance to the Law Society of South Australia or other interested parties) and similarly does not address any transitional provisions creating questions about the validity of forms which have recently been prepared by people and are currently being finalised. This issue is significant because the legislation insists on SDMs signing the document before the Donor. This often means that the Donor only signs the document at a later date after all of the SDMs have signed the document.
While law firms will address these issues with clients who may be impacted by the change, the broader concern relates to forms prepared by people at home using a DIY kit such as that available on the Advance Care Directives website which currently shows the previous form which has been replaced. A quick google search shows that links to the previous (and now outdated) form are also available on numerous websites which could result in people inadvertently using the incorrect form and therefore not validly creating the document.
It is vital that anyone who has recently prepared an Advance Care Directive, or is considering creating one in the near future, obtains legal advice to ensure that the correct form is used.
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