September 2005

Advance Directive

Stipulating your wishes to avoid family disagreements

In more recent years, medical science has progressed to the stage where, frequently, the medical profession can keep a person alive even though the continuing quality of that person’s life may be in doubt.

We have often had clients ask us if they could have a “living will”. They have wanted to specify what should happen to them if they became so seriously ill that they could not make decisions for themselves regarding their own medical treatment. The difficulty, in New Zealand law, with any such document is that it is not legally enforceable.

This year, news media reports (including the Terry Schiavo case in Florida) have resulted in more clients enquiring with us as to what they could do, in their own circumstances, to avoid the family disputes with medical treatment issues which inevitably arise when the client suffers a significant decline in his or her health. To assist in that regard, we have created an

ADVANCE DIRECTIVE guide that contains:

  • notes on the Advance Directive;
  • an instruction guide; and
  • a blank Advance Directive form for completion and signing.

From our perspective, the essential documents that every adult should have are:

  • A Will (to direct what you want to happen to your assets when you die);
  • Enduring Powers of Attorney as to Property and as to Personal Care andWelfare (appointing a person or persons you trust to make decisions for you when you are unable to make such decisions yourself).

An Advance Directive (which is not a legally binding document) is an extra step to give guidance to your Attorney/s that you have appointed pursuant to your Enduring Powers of Attorney. Under New Zealand’s current law, you can not legally force your Attorney/s to follow your Advance Directive and your Attorney/s may not legally be able to follow your Directive, even if they want to.

Nevertheless, in stipulating your views in advance you will leave no one in doubt as to what you would wish to happen in respect of your medical care and treatment. Often it is the uncertainty within families as what their loved one would want which creates the dissension and disagreements.