What is an Advance Care Directive?

Many people, when thinking of their estate planning arrangements, will have at least thought about:

  • making a Will to direct how their assets in their estate will be distributed on their death
  • putting in place an Enduring Power of Attorney to manage their financial affairs they become unable to do so
  • appointing an Enduring Guardian to make decisions about their healthcare, accommodation and lifestyle if they cannot

but often, they will never have heard of an Advance Care Directive or a ‘Living Will’.

So what is an Advance Care Directive? An Advance Care Directive is a way inform others of your specific wishes in relation to your future care and treatment and identifying steps that you do and/or do not want taken if you become medically incapacitated and cannot state these wishes for yourself.

It is best to put these wishes down in a document and have it witnessed or signed, but it can be verbal.

An Appointment of Enduring Guardians and an Advance Care Directive are complementary powers and there is often no need for an Advance Care Directive at all if the functions of the Enduring Guardian are stated broadly or if there are specific directions given to the enduring guardian in the document appointing them (an Advance Care Directive can be part of the Appointment of Enduring Guardians).

The appointed guardian (and any medical practitioners) must act in accordance with any known Advance Care Directive unless it is clearly revoked or replaced by the directions in Appointment of Enduring Guardians.

People’s views on matters like life support, assisted ventilation, resuscitation, artificial nutrition/hydration and palliative care can, and often do, change over time so documents like Advance Care Directives should be updated when necessary so as to reflect a person’s most current wishes regarding their medical treatment.


Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to Advance Care Directives, estate planning, aged care issues, contact Craig Pryor on (02) 9521 2455 or email

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

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What does an enduring guardian do?

An enduring guardian is a person appointed to make decisions about your health and lifestyle for periods in which you are incapable of making such decisions for yourself (for example if you have dementia, are in a coma, are unconscious following a car accident or suffer from some other mental incapacity.)

Appointing an Enduring Guardian is an important step in implementing a proper estate plan (others include having a Will and appointing a Power of Attorney).


You can choose who can make decisions on your behalf regarding your medical and dental treatment and decide where you live if you are not capable of doing this for yourself. These are known as “functions”. The easiest way to do this is to appoint an enduring guardian.

The appointment of an enduring guardian takes effect only if and when you become unable to make personal or lifestyle decisions for yourself, such as where you are in a coma, are unconscious or suffer from mental incapacity like dementia.


An enduring guardian must be at least 18 years of age but cannot be a person who, at the time of the appointment, provides you with medical treatment, accommodation, support or care to you as a professional.

The appointed enduring guardian should be someone that you trust absolutely as they have significant powers. Although an enduring guardian must act in accordance with the provisions of the Guardianship Act 1987 (NSW), you should be satisfied that the person you appoint will act in your best interests.

You can appoint more than one person to act as your enduring guardian – either jointly (together) or separately. You can also appoint alternative enduring guardians in case something happens to your first nominated enduring guardian. For example, people often appoint their spouse and have their children as their joint alternate enduring guardians.


You can give your enduring guardian the discretion to make all decisions for you when you are not able to make them for yourself or alternatively, you can limit your enduring guardian’s functions such as to consenting to certain procedures, limiting their discretion as to the type of nursing home or care facility you want to reside in or requiring specialist consultation or consultation with relatives regarding decisions about your care and treatment.

You cannot give your enduring guardian a function or direction which would require an unlawful act, such as assisted euthanasia. You can provide specific directions regarding turning off life support, ‘do not resuscitate’ orders, assisted ventilation, artificial nutrition and hydration etc.


An enduring guardian’s appointment comes to an end when you die or if you revoke the appointment however, you can only revoke it provided you still have mental capacity.

The New South Wales Civil & Administrative Tribunal can review or revoke a person’s appointment as an enduring guardian and can make a guardianship order appointing a new guardian or appointing a representative of the NSW Trustee & Guardian if it is considered that your guardian not making appropriate decisions on your behalf.


Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to estate planning, business succession or any commercial law issues, contact Craig Pryor on (02) 9521 2455 or email