Last updated June 21, 2022
Our template allows you to create an Advance Directive (Living Will), an Enduring Power of Attorney (EPA) for Personal Care and Welfare, or both in one comprehensive document.
What is an Advance Directive (Living Will)?
An Advance Directive, also known as a Living Will, is a document that allows you to specify which medical treatments you wish to receive if you are incapacitated and cannot communicate your wishes. Advance Directives help health care workers understand your desires if you're in a coma, terminally ill or injured, in the late stages of dementia, or near the end of life.
By expressing your wishes in an Advance Directive, your family and caregivers will not have to guess what you want. Instead, you can remain in control of your medical treatment.
This document is sometimes called a Living Will because, unlike a Last Will and Testament, it only applies while you are still alive. "Advance Directive" is also used because people make them in advance of old age, illness, or injury incapacitating them.
An Advance Directive should not be confused with an advance care plan. Although the two documents can overlap, they are distinctly different. An advance care plan allows you to describe your values, religious beliefs, and anything else that will help your caregiver or medical institution provide individualised care.
Why should I create an Advance Directive (Living Will)?
Creating an Advance Directive is important because it affects both you and your family. The following examples are just some of the reasons why you should have an Advance Directive:
- Gives you control of your medical wishes
- Helps you prepare for unexpected medical situations and emergencies
- Eliminates ambiguity about what you want
- Protects your family members from having to guess and make decisions about your medical wishes
- Prevents potential conflicts between family members
Who should make an Advance Directive (Living Will)?
Anyone who is at least 18 years old can make an Advance Directive. Although many older people create Advance Directives, they are important documents for everyone. Unexpected medical situations and emergencies can occur at any age. Therefore, all adults should take the time to create an Advance Directive.
When does an Advance Directive (Living Will) apply?
The Code of Health and Disability Services Consumers' Rights dictates that Advance Directives are effective only when you are incapacitated or not competent.
When can incapacitation occur?
Incapacitation can occur in the following circumstances:
- When you have an incurable and irreversible terminal condition that will result in your death within a relatively short time. This includes conditions caused by injury, disease, or illness from which there is no reasonable medical probability of recovery and, without treatment, can be expected to cause death.
- When you are diagnosed with a permanent coma. A permanent coma is a profound state of unconsciousness with no reasonable expectation of regaining consciousness. Having a permanent coma means there is an absence of voluntary action or cognitive behavior of any kind and an inability to communicate or interact purposefully with one’s environment.
- When you are diagnosed as being in a persistent vegetative state and, to a reasonable degree of medical certainty, you will not regain consciousness. A vegetative state is a permanent and irreversible condition in which a person's autonomic functions, such as breathing and heart rate, continue but they cannot communicate or interact purposefully with their environment.
- When you have an advanced illness or injury that is so severe that, to a reasonable degree of medical certainty, you will not regain decision-making capacity or survive without continued life support.
What medical decisions can I make in an Advance Directive (Living Will)?
With LawDepot's Living Will template, you can make decisions regarding the following medical treatments:
- Life support: Life support is any medical procedure, treatment, or intervention that sustains, restores, or supplants a spontaneous vital function. Common forms of life support include defibrillators, assisted breathing, and dialysis.
- Tube feeding: Tube feeding is artificially administered food and water. In other words, it is the provision of nutrients or fluids by a tube inserted in a vein or the stomach.
- Treatment of intervening illness: An intervening illness is a separate illness that is not causing the incapacity but may still be life-threatening (e.g., pneumonia).
- Cardiopulmonary resuscitation (CPR): CPR is a lifesaving procedure in which someone attempts to restore heartbeat and breathing following cardiac arrest, using artificial respiration and chest compressions.
- Comfort and dignity care: This type of care includes pain-controlling and behaviour-controlling drugs that work to maintain or improve quality of life.
- Organ donation: In addition to care preferences, you can specify whether you want to donate your organs after you pass away. You can donate your heart, heart valves, lungs, liver, kidneys, pancreas, eyes, and skin.
In addition to outlining the above medical treatments, you also have the option to write a statement of values and beliefs in your Advance Directive. This statement is a non-binding personal statement that specifies your personal beliefs and morals that may be relevant to your health care, but it is not binding to doctors or health care providers.
What is an Enduring Power of Attorney for Personal Care and Welfare?
An Enduring Power of Attorney (EPA) for Personal Care and Welfare is a document that allows you to appoint someone you trust to make medical decisions for you if you are unable. The person who you appoint, known as your attorney, is usually a family member or friend.
Much like Advance Directives, EPAs for Personal Care and Welfare help ensure your wishes are honoured if you are incapacitated and only come into effect if you become mentally incapacitated due to an illness, such as dementia, or condition, such as a coma. A medical professional or the Family Court determines whether you are mentally capable.
In New Zealand, the Protection of Personal and Property Rights Act 1988 governs Powers of Attorney for Personal Care and Welfare.
An EPA for Personal Care and Welfare is different from a Power of Attorney for property which lets you appoint another person to act on your behalf concerning finance, real estate, business, and more.
When does an Enduring Power of Attorney for Personal Care and Welfare apply?
An EPA for Personal Care and Welfare applies when you are incapacitated or not competent. If you are incapacitated, it means you do not have the ability:
- To understand the nature of a decision about your personal care and welfare
- To appreciate the consequences of making or failing to make the decision
- To communicate the decision
Generally, a doctor is the one who determines whether you lack capacity. For example, as someone progresses through the stages of dementia, a doctor may determine when a patient can no longer make their own medical decisions.
Who should I appoint as my attorney?
Within an EPA document, an attorney is someone who makes decisions for you when you no longer have the capacity to make decisions on your own. Besides being someone that you trust, your attorney must:
- Be 20 years of age or older
- Not be bankrupt
- Have the capacity to make personal and welfare decisions on your behalf
You can also appoint a successor attorney who can act for you if your primary attorney is unable or unwilling to act. It is a good idea to appoint a successor attorney but it is not absolutely necessary. A successor attorney can only act when your first choice is unable or unwilling to continue acting for you.
What powers can I grant in an Enduring Power of Attorney for Personal Care and Welfare?
In an EPA for Personal Care and Welfare, you control your attorney’s powers. You can grant your attorney full or specific authority.
With full authority, your attorney can make all decisions relating to your health, well-being, and enjoyment of life, including decisions about where you live, your medical care, and your participation in social and educational activities.
By granting your attorney specific authority you can give them power only in certain areas, such as only letting them control your medical treatments.
Regardless of whether you give your attorney full or specific authority, there are some limitations to the powers you can grant. Your attorney cannot:
- Make decisions about you getting married, separated or divorced
- Make decisions about the adoption of your children
- Consent to surgery or treatment of your brain, including electro-convulsive treatment (ECT) for the purposes of changing your behaviour
- Allow you to take part in any medical experiment unless it might save your life or prevent serious damage to your health
- Refuse consent to CPR or standard medical treatment that could save your life or prevent serious damage to you, unless otherwise outlined in your Advance Directive
If you decide that you do not want to be resuscitated in certain circumstances, you need to outline these wishes in your Advance Directive before becoming mentally incapable.
In addition, you can specify that your attorney must seek advice from a particular person before making decisions. You may want your Attorney to consult with your family members when making important medical decisions or decisions about moving you into a rest home.
Why should I make an Enduring Power of Attorney for Personal Care and Welfare?
An EPA for Personal Care and Welfare is essential because it allows your attorney to make health care decisions in your best interest. In addition, it creates the conditions for you to discuss your treatment wishes with your trusted attorney before any unforeseen medical circumstances.
Creating an EPA for Personal Care and Welfare also protects your loved ones emotionally. According to the New Zealand Government, if you do not have an EPA for Personal Care and Welfare set up and you cannot make your own decisions, your family would need to apply to the Family Court to have someone appointed as your welfare guardian. This process can take time and be emotionally taxing on your loved ones.
Having an EPA ensures that your trusted attorney can make decisions without complications or obstacles.
Does a Power of Attorney override an Advance Directive?
No. Your appointed attorney cannot use their powers to override the wishes you outline in your Advance Directive.
Our Advance Directive template dictates that any attorney appointed under a Power of Attorney for Personal Care and Welfare does not have the authority to disregard or override the directive’s instructions. This means that your family members, relatives, and friends could disagree with your health care preferences, but any such disagreement does not diminish the strength or substance of your instructions.
When does an EPA for Personal Care and Welfare end?
An Enduring Power of Attorney continues until:
- You or your attorney pass away
- Your attorney becomes bankrupt, mentally incapable or otherwise incapable of acting as an attorney
- You take away your attorney’s power by giving them written notice
- Your attorney gives notice in writing to either you or the Family Court that they no longer wish to act as your attorney
- The Family Court revokes your attorney’s power
- You recover mentally and suspend the EPA by writing to the attorney
Can you revoke an Enduring Power of Attorney for Personal Care and Welfare?
If you are mentally capable, you can change or end your EPA at any time. While you are mentally capable, you can cancel your EPA or remove an attorney at any time by giving written notice to the attorney.
