An advance health directive is simpler than many people assume. It is a legal document that records your health care wishes before a crisis, so that the people treating you, and the people who care about you, know exactly what you want.
Made while you have capacity, it gives legally binding directions about future health care. It can also appoint an attorney to make health decisions on your behalf if your own capacity is lost, according to the Queensland Government. For families in Springfield, Ipswich and across Greater Springfield, having one in place often spares loved ones from making the most difficult guesses imaginable.
As a Springfield law firm, we help clients across Greater Springfield and Ipswich with advance health directives and enduring powers of attorney.
Here is how advance health directives generally work in Queensland, and what having one in place means for you and your family.
Key takeaways
- An advance health directive gives legally binding directions about future health care.
- It operates only when you cannot make the health decision yourself.
- Without one, a statutory health attorney makes decisions in a set order.
This article is general information only and is not legal advice. Every situation is different, and you should speak with a solicitor about your own circumstances.
What is an advance health directive in Queensland?
An advance health directive is a legal document that gives binding directions about future health care when a person lacks capacity to decide for themselves, according to the Queensland Government. Unlike an enduring power of attorney for financial matters, an advance health directive operates specifically in the health care context and only when the person can no longer make the relevant decision.
The directive records views, wishes and preferences. It can also appoint an attorney to make health decisions on the maker's behalf. The attorney acts only after signing an acceptance, and only when two conditions are met: the maker lacks capacity, and the directive does not already cover the specific decision at hand.
A doctor or nurse practitioner completes a capacity certificate before the document is signed, confirming the maker understood what they were doing and made the decision freely.
Who should make an advance health directive in Queensland?
Anyone aged 18 or older who has decision-making capacity can make one, according to the Queensland Government. The directive becomes particularly important before any hospital admission or when a person has a condition that could affect their decision-making later, or that could lead to serious complications.
The Queensland Government recommends making one before any urgent condition arises. For clients in Springfield and Ipswich who are planning their estate documents, an advance health directive is commonly prepared alongside an enduring power of attorney and a will, so that financial, personal and health decisions are all covered.
"An advance health directive removes the guesswork for families and for treating doctors. It means the person's own voice guides their care, even when they can no longer speak for themselves."
Jade Kickbusch, Principal, Brookwater Legal
What are the rules for making an advance health directive in Queensland?
The Queensland Government sets out these requirements for a valid directive:
- › Age and capacity: the maker must be 18 or older and must understand the nature and effect of the document, making it freely and voluntarily.
- › Medical certificate: a doctor or nurse practitioner completes a capacity certificate before signing, confirming the maker appeared to have decision-making capacity.
- › Witnessing: the document is signed and dated before an eligible witness, being a justice of the peace, commissioner for declarations, notary public or lawyer, who also certifies the maker appeared to have capacity and made the directive freely.
- › Attorney acceptance: where an attorney is appointed, they sign an acceptance before they begin acting.
- › Forms: the document uses Form 4, with Form 10 as the explanatory guide, which are available from the Queensland Government and the Office of the Public Guardian.
There is no central registry for advance health directives. The Queensland Government recommends sending certified copies to the appointed attorney, the treating doctor and a lawyer, and a copy can also be sent to the Statewide Office of Advance Care Planning for the Queensland Health record.
How does a solicitor help with an advance health directive in Queensland?
Preparing an advance health directive involves more than completing a form. A solicitor can explain what decisions the document can and cannot cover, how it interacts with an enduring power of attorney for personal matters, and what happens to it if a relationship ends.
Step 1: Talk to us
Get in touch and we will explain how advance health directives and enduring powers of attorney generally work together, and what the next steps look like for your situation.
Step 2: Understand the document
We explain the scope of an advance health directive, who can witness it, what a health attorney can and cannot do, and how the document is stored so treating doctors can access it when it matters.
Step 3: Prepare the directive
We prepare the directive using the approved form, arrange for the capacity certificate from a treating practitioner where needed, and ensure the witnessing requirements are met correctly.
Step 4: Coordinate with the rest of your estate plan
We review how the directive fits with any enduring power of attorney, will and other estate planning documents, and provide certified copies for the people and organisations who need them.
| Get in touch Need help with an advance health directive? We're an experienced team who keep you well informed at every stage of the process. Get in touch to discuss your needs. |
When does an advance health directive not apply?
An advance health directive operates only when the person lacks capacity for the specific health decision being made. While the person retains capacity, they continue to make their own decisions, and the directive does not override them.
There are also categories of decision the directive cannot authorise. A health attorney appointed under a directive cannot consent to what Queensland law calls special health care, according to the Queensland Government. This includes tissue donation for transplant, sterilisation, termination of pregnancy, participation in experimental health research and electroconvulsive therapy.
A later advance health directive generally revokes an earlier one to the extent of any inconsistency. Where the directive does not cover a specific decision and no attorney is appointed, a statutory health attorney steps in, following the order set by the Queensland Government: first a spouse or de facto partner in a close and continuing relationship, then an unpaid carer, then a close friend or relative in a continuing relationship, and otherwise the Public Guardian.
How does an advance health directive end in Queensland?
The Queensland Government sets out three ways a directive can end:
- › Written revocation: the maker revokes it in writing while they still have capacity. There is no set form required for revocation.
- › A later directive: a later advance health directive revokes an earlier one to the extent of any inconsistency between them.
- › Death: the directive ends on the maker's death.
The Queensland Government recommends reviewing the directive at least every two years or after any major life event, such as a significant change in health, a change in relationship status, or the death or incapacity of an appointed attorney. Because a later directive generally overrides an earlier one, keeping it current is straightforward.
What happens if an attorney misbehaves or a dispute arises?
The Office of the Public Guardian is generally the first avenue where there are concerns about a health attorney, according to the Queensland Government. The Office can investigate and can suspend an attorney's power where it reasonably suspects the attorney is not acting competently. It can also mediate disputes between attorneys, guardians and administrators.
Where mediation fails, the Queensland Civil and Administrative Tribunal has the same powers as the Supreme Court over enduring documents, according to QCAT. This includes declaring whether a person had capacity to make the directive, ruling on its validity, removing an attorney, changing the directive's terms, revoking it, or allowing an attorney to resign. Where a health dispute cannot be resolved, the Public Guardian may exercise the health power directly.
Frequently Asked Questions
What is the difference between an advance health directive and an enduring power of attorney in Queensland?
An advance health directive gives binding directions about health care specifically. An enduring power of attorney for personal matters also covers health decisions but operates more broadly, including accommodation and services, according to the Queensland Government. Both can be made at the same time.
When does an advance health directive take effect in Queensland?
It takes effect only when the maker lacks capacity for the specific health decision being made, according to the Queensland Government. While the maker retains capacity, they continue to decide for themselves and the directive does not apply.
Who can witness an advance health directive in Queensland?
An eligible witness is a justice of the peace, commissioner for declarations, notary public or lawyer, according to the Queensland Government. The witness must certify the maker appeared to have capacity and made the directive freely and voluntarily.
Does an advance health directive in Queensland expire?
No. According to QCAT, an advance health directive remains in effect until death and does not lapse on loss of capacity. The Queensland Government recommends reviewing it at least every two years, and a later directive revokes an earlier one to the extent of any inconsistency.
What decisions cannot be covered by an advance health directive in Queensland?
A health attorney cannot consent to special health care, according to the Queensland Government. This includes tissue donation for transplant, sterilisation, termination of pregnancy, participation in experimental health research and electroconvulsive therapy.
Do you need a solicitor for an advance health directive in Springfield or Ipswich QLD?
The Queensland Government recommends independent legal advice before making an advance health directive. A solicitor can explain how the directive interacts with other estate planning documents and help ensure the witnessing and certification requirements are correctly met. Our wills and estates solicitors assist clients across Springfield and Ipswich with these documents.
What happens in Queensland if someone does not have an advance health directive?
A statutory health attorney makes decisions, following the order set by the Queensland Government: first a spouse or de facto partner in a close and continuing relationship, then an unpaid carer, then a close friend or relative, and otherwise the Public Guardian. That person decides without knowing what the individual would have wanted.
Your Next Steps
Getting an advance health directive in place is one of the clearest gifts a person can give their family. It removes the uncertainty that arises at already difficult moments, and it means treating doctors in Queensland have a clear legal framework to follow. For clients across Springfield and Ipswich, preparing these documents as part of a broader estate plan is straightforward when the right advice is in place early.
If an advance health directive or broader estate planning is on your mind, the next step is a straightforward one. Get in touch with the Brookwater Legal team or call (07) 3437 8555, and we'll talk you through how the process generally works.
 |
External Resources
- Queensland Government – Understanding advance health directives
- Queensland Government – Making and ending an advance health directive
- Queensland Government – Information for health attorneys and statutory health attorneys
- Office of the Public Guardian – Enduring Power of Attorney fact sheet
- QCAT – Enduring power of attorney and advance health directives
Brookwater Legal · This article contains general information only and does not constitute legal advice. It does not take into account your individual circumstances. You should obtain legal advice about your own situation before acting on anything in this article. Liability limited by a scheme approved under Professional Standards Legislation.
