An ACD is a document that derives its power and authority from is derived from the Advance Care Directives Act 2013 (SA).

By creating an ACD, a competent adult may give binding refusals and instructions about future health care, residential and accommodation matters and personal affairs, and appoint substitute decision-makers.

It cannot give a power of attorney, and an EPA cannot reach the health and personal matters an ACD governs.

A substitute decision-maker may make any decision the maker could lawfully have made in these areas subject to absolute limits: no substitute decision-maker may refuse the administration of drugs to relieve pain or distress, or the natural provision of food and liquids by mouth (section 23(4)). An ACD can not be used to consent to voluntary assisted dying.

The scheme was summarised by the Court of Appeal in Luca v Eckert (No 2)[2024] SASCA 136 at [17]:

The objects of the Advance Care Directives Act include enabling “competent adults to give directions about their future health care, residential and accommodation arrangements and personal affairs” (section 9(a)). Directions are given by completing the requisite form and having it witnessed (section 11(2)). The matters that cannot be made the subject of an advance care directive include provisions that would be unlawful, that preclude the refusal of mandatory medical treatment, and any request for “voluntary assisted dying” (section 12). Nothing in the Advance Care Directives Act authorises “an advance care directive to have the effect of giving a power of attorney” (section 13). An advanced care directive remains in force until the earlier of: any date specified, until it is revoked, or until the death of the person who gave the advance care directive (section 16).

Validity of an ACD requires three things: the specific statutory capacity in section 11(1); the approved form (section 11(2)); and certification by an independent “suitable witness” (usually the solicitor undertaking the process) who has explained the legal effect of the directive and formed the view that the maker understood it and was not acting under duress or coercion (section 15).

A substitute decision-maker’s authority is enlivened only while, and only for a decision in respect of which, the maker has impaired decision-making capacity (section 34(1)).

One of the most important aspects of an ACD is the ability of a person to nominate a Binding Refusal of Health Care.  This is also known as a “non resuscitation clause.” The decision to “turn off” life support for a person’s loved one is often a distressing and sometimes controversial decision to make. A Binding Refusal of Health Care can remove this burden as it allows a person to nominate a point advance at which they do not want any further medical treatment.

‍ ‍