Updated 23 October 2026
Wills - Potential Problem #31: Ignoring Healthcare Directives
A serious illness or injury can leave your family and doctors unsure which treatments you would accept. An advance care directive records your healthcare decisions for circumstances in which you cannot make or communicate them yourself. In NSW, a valid directive that applies to the situation must be respected.
Healthcare planning belongs alongside your estate plan, but it should not be left inside your will. A will operates after death. Your medical preferences, enduring guardianship appointment and financial power of attorney serve different purposes during your lifetime. Making those distinctions clear helps your family understand both your wishes and who has authority to act.
1. Understand what makes an advance care directive effective
You must make the directive while you have the necessary decision-making capacity, voluntarily and according to your own preferences. The instructions need to be clear enough to identify the treatment and circumstances they address. Someone can help write down your decisions, but cannot invent them or make a directive for you after you have lost capacity.
The NSW Health booklet updated in February 2026 explains that directives can be spoken or written. NSW does not require a particular form, signature or witness for validity. Nevertheless, a written, dated and signed document, with appropriate witnessing or clinical involvement, can help establish what you decided and when.
An advance care plan is different. It can record values and preferences with or for someone with limited capacity and guide healthcare decisions, but is not legally enforceable in the same way. Calling a document a directive does not make it valid if the underlying requirements were not met.
2. Discuss specific treatment choices with your doctor
General phrases such as “no heroic measures” can mean different things to different people. Ask your GP or treating specialist to explain the treatments relevant to your health, their likely benefits and burdens, and what your instructions would mean in practice. That discussion can help distinguish a temporary intervention from treatment you would refuse in particular circumstances.
Your lawyer can help clarify the legal effect and how the document fits with your other appointments. Your treating team should explain the medical choices. A directive does not require clinicians to provide treatment that would not benefit you.
NSW Health recommends starting these conversations while you are well. You do not need a terminal diagnosis. Discuss what matters to you, including comfort, communication, cultural or religious preferences and the people you want involved. Give your family an opportunity to understand your choices before an emergency arises.
3. Coordinate your directive with enduring guardianship
An enduring guardian can make the personal and healthcare decisions authorised by their appointment when you cannot make those decisions yourself. This can help with questions your directive does not address. The guardian cannot override a valid, applicable directive simply because they disagree with it.
An enduring power of attorney covers authorised financial and legal affairs, such as paying accounts. It does not itself authorise medical consent. Naming a preferred contact in a healthcare document should not be treated as a substitute for properly completing an enduring guardianship appointment.
If you cannot consent and there is no applicable directive, NSW’s person responsible hierarchy may determine who can consent to treatment. It generally starts with an appropriately authorised guardian, followed by a spouse or partner in a close continuing relationship, an unpaid carer, then a qualifying close relative or friend. It is not automatically whichever family member arrives first.
Different rules apply to urgent treatment, particular treatments and objections. A genuine dispute about authority or consent may require tribunal or court involvement rather than a family vote.
4. A real NSW case about refusing treatment
In Hunter and New England Area Health Service v A (2009), a hospital sought guidance about an unconscious patient receiving life-sustaining treatment, including kidney dialysis. Staff discovered a worksheet he had completed the previous year indicating that he refused dialysis.
The Supreme Court found that the refusal represented his voluntary, considered decision made with legal capacity. It declared the directive valid and confirmed that the hospital would be justified in ceasing dialysis.
The case demonstrates why clear instructions must be available when treatment decisions arise. It also shows that a valid refusal can remain effective after the person loses the ability to communicate. Where there is genuine uncertainty about validity or whether a directive applies, urgent legal guidance may be necessary. This was a decision about refusing treatment; it did not authorise voluntary assisted dying.
5. Understand how directives relate to voluntary assisted dying
Voluntary assisted dying, often shortened to VAD, has a separate legal and clinical framework in NSW. An advance care directive cannot authorise it. NSW Health explains that the person must retain the required decision-making capacity and ability to communicate their requests and decisions throughout the process.
A relative, attorney or enduring guardian cannot request VAD for another person. Previous written wishes do not remove the statutory requirements. A person who wants information should discuss their circumstances with an appropriate medical practitioner; drafting a directive does not establish eligibility.
Advance care directives can still be important for other healthcare. NSW Health’s guide for loved ones explains that a directive may remain relevant if someone decides not to proceed with VAD or cannot continue the process. If they later cannot make the relevant treatment decision, valid instructions can guide their other care.
Considering or accessing VAD does not remove access to palliative care or other appropriate treatment. These options should be discussed together, without pressure to choose a particular pathway.
6. Christine on planning with VAD clients
I have used advance care directives in planning with clients who were also dealing with voluntary assisted dying. The important distinction is that the directive records their wishes about other healthcare if they later cannot make those decisions. It does not give me, their family or their enduring guardian permission to request VAD for them.
That remains the client’s own decision through a separate legal and clinical process. I want clients and their families to understand what each document actually does. Discussing the arrangements together helps make the roles clear without treating one document as an answer to every situation.
7. Make the document accessible and keep it current
First, share the current version. Give copies to your GP, relevant specialists, enduring guardian and care provider. Tell the people close to you where it is held. A directive stored somewhere nobody can access may not be available when an urgent treatment decision arises.
Second, consider My Health Record. The Australian Digital Health Agency explains how advance care planning documents can be added to your record. This provides another way for treating professionals to find the information; retain accessible copies as well.
Third, review your choices. NSW Health recommends reviewing the document annually. Revisit it after a diagnosis, significant treatment change or change in preferences. While you have capacity, your current decision takes precedence over earlier instructions. Replace outdated copies and tell everyone who received the previous version.
Fourth, check the whole plan. Review the directive, enduring guardianship appointment and power of attorney together. Confirm contact details and substitute appointments, and make sure your chosen representatives understand the limits of their roles.
8. Start the conversation before it becomes urgent
A 2025 national survey commissioned by Advance Care Planning Australia found that 33% of respondents had taken steps to plan future healthcare. The online study surveyed 3,390 adults and weighted results by age, gender and state or territory. This measures planning activity, not the proportion holding legally valid directives.
The practical starting point is a conversation with your treating team about your preferences, followed by clear documents and accessible copies. CM Lawyers’ wills and estates team can help coordinate the legal arrangements with your healthcare planning. Contact our team to discuss your directive and enduring appointments.
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