Advance directives compared: what binds, and what merely guides 

Every Australian jurisdiction lets a person say in advance what should happen to them if they cannot say it later. Almost none of them do it the same way. The differences fall into three questions, and a competent answer works through all three before saying what a directive requires.

1. What can the instrument do? Refuse treatment only, or also request it? Also appoint a decision-maker? Also confer authority over property?
2. What binds, and what guides?
3. Where does it sit in the order of authority against an appointed substitute decision-maker?

Question 1: scope

The narrowest instrument is the Australian Capital Territory's. Section 7 of the Medical Treatment (Health Directions) Act 2006 (ACT) confines a health direction to refusing medical treatment, or requiring its withdrawal.⁸ It cannot be used to require that treatment be given. That single limit disposes of a class of problem questions immediately.

The broadest is the Northern Territory's. Section 8(1) of the Advance Personal Planning Act 2013 (NT) creates a single instrument that can make advance consent decisions, record advance care statements, and appoint decision makers — three functions in one document.⁵

South Australia deliberately keeps them apart. Section 13 of the Advance Care Directives Act 2013 (SA) provides that an advance care directive cannot give a power of attorney.¹ Property and financial authority comes from the Powers of Attorney and Agency Act 1984 (SA) and nowhere else.² A South Australian answer that has the directive doing the power of attorney's work has failed on the first question.

Western Australia and Tasmania put the instrument inside their guardianship Acts — ss 110F to 110U of the Guardianship and Administration Act 1990 (WA), and ss 35A and 35B of the Guardianship and Administration Act 1995 (Tas).¹⁰⁹ There is no standalone Act to find in either jurisdiction, and looking for one is the common wrong turn.

Queensland puts the advance health directive in its Powers of Attorney Act 1998, which is where the two instruments meet directly.⁴

Question 2: what binds

This is where the jurisdictions diverge most sharply, and where the language matters most.

South Australia — refusals only. Section 19(1) makes a provision of an advance care directive comprising a refusal of particular health care binding. The corollary is that the directive's positive requests are not binding in the same way. Sections 19(1a) and 19(3) qualify the operation of the section. Students routinely treat a South Australian directive as binding in both directions; it is not.

Victoria — two kinds of directive, expressly. Section 12 of the Medical Treatment Planning and Decisions Act 2016 (Vic) divides the instrument in two: an instructional directive, which takes effect as if the person had consented or refused, and a values directive, which states preferences and values and guides rather than binds.³ Section 61 then requires a health practitioner to give effect to a relevant instructional directive. Victoria is the clearest scheme in Australia on this question precisely because it makes the distinction in the statute rather than leaving it to construction.

Queensland — binding, subject to cumulative clinical preconditions. Section 36 of the Powers of Attorney Act 1998 (Qld) confines the directive's operation to periods of impaired capacity and sets cumulative clinical preconditions before a life-sustaining measure may be withheld or withdrawn under it. This is the most exacting provision of its kind in the jurisdictions compared here, and it should be worked through rather than summarised.

Australian Capital Territory — form decides. Section 8 permits a direction to be made orally, or in any other way, and ss 9, 12 and 13 impose different witnessing requirements according to the form. So the ACT question is never "was it in writing" but "what form was it in, and were the requirements for that form met".

Western Australia — binding, unless the maker's circumstances have changed unforeseeably. Section 110S(1) makes a treatment decision in an advance health directive operate, when the maker cannot make reasonable judgments about the treatment, as if the maker had full capacity. Section 110S(3) then provides that a treatment decision does not operate if circumstances exist or have arisen that the maker would not reasonably have anticipated when making the directive and that would have caused a reasonable person in the maker's position to change their mind about it. Section 110S(4) lists matters to weigh, including the maker's age, the time elapsed since the directive was made and whether it was reviewed.

Question 3: the order of authority

Queensland states it expressly. Sections 35(3) and (4) of the Powers of Attorney Act 1998 (Qld) give a direction in an advance health directive priority over an attorney's health power. The directive first, the attorney second.

The Northern Territory has two layers. Section 22 of the Advance Personal Planning Act 2013 requires an appointed decision maker to act on what the person would do — expressly even where that is not in their best interests (s 22(2) to (7)). Then the Health Care Decision Making Act 2023 (NT) applies advance care statements before substituted judgement (s 18(2) to (4)) and, where no appointment exists, runs a descending hierarchy of decision makers in s 13 that places a relative identified by Aboriginal or other customary law above a spouse.⁶

South Australia conditions the substitute decision-maker's power. Section 12 requires the directive to be produced, the absence of an impediment, and the substitute's competence before the power may be exercised (s 12(1)(b) and (3)).

New South Wales works through Part 5 of the Guardianship Act 1987: ss 33A, 37, 40 and 46A govern who may consent to medical and dental treatment for a person unable to consent.¹¹

Which standard governs the substitute

Two standards are in play across the country and they point in different directions.

Substituted judgment — what the person would have decided — governs in Victoria (ss 60 and 61) and, in its strongest statutory form, in the Northern Territory under s 22.

Welfare, interests or a structured best interests standard governs elsewhere: s 4 of the Guardianship Act 1987 (NSW) makes welfare and interests paramount, and s 4 of the Guardianship of Adults Act 2016 (NT) applies structured best interests to guardianship — though not to health care, which it excludes.⁷

The Northern Territory therefore runs both standards at once, on different instruments. Identify which instrument governs before choosing a standard.

Comparison

| Jurisdiction | Instrument | Scope | What binds | |---|---|---|---| | SA | Advance Care Directives Act 2013 | Health care; cannot give a power of attorney (s 13) | Refusals only (s 19(1)) | | Vic | Medical Treatment Planning and Decisions Act 2016 | Health care | Instructional directives; values directives guide (s 12) | | Qld | Powers of Attorney Act 1998 | Advance health directive within the POA Act | Binding, subject to s 36 preconditions; outranks attorney (s 35) | | NT | Advance Personal Planning Act 2013; Health Care Decision Making Act 2023 | Consent decisions, care statements and appointments in one | Substituted judgment even against interests (s 22) | | ACT | Medical Treatment (Health Directions) Act 2006 | Refusal or withdrawal only (s 7) | Depends on form and witnessing (ss 8, 9, 12, 13) | | WA | Guardianship and Administration Act 1990, ss 110F–110U | Inside the guardianship Act | Per ss 110S and 110U | | Tas | Guardianship and Administration Act 1995, ss 35A–35B | Inside the guardianship Act | Per ss 35A and 35B | | NSW | Guardianship Act 1987, Part 5 | Consent to medical and dental treatment | Per ss 33A, 37, 40, 46A |

A working method

1. Find the instrument in the right Act. In WA and Tasmania it is inside the guardianship statute; in Queensland it is inside the powers of attorney statute.
2. Classify what you have — instructional or values in Victoria; refusal or request in South Australia; refusal or withdrawal in the ACT.
3. Check the formalities against the form. The ACT is the jurisdiction where this matters most.
4. Establish the order of authority between the directive and any appointed substitute.
5. Choose the standard by the instrument, not by habit.
6. For a life-sustaining measure in Queensland, work through each cumulative precondition in s 36.

Self-check

• Have I looked for the instrument inside the guardianship or powers of attorney Act where the jurisdiction places it there?
• Have I distinguished what binds from what guides, in the statute's own terms?
• Have I checked whether the directive can do the work of a power of attorney, or whether the jurisdiction forbids it?
• Have I applied substituted judgment only where the jurisdiction requires it?