Advance Care Directive After a Dementia or Serious Diagnosis in Tasmania

A Diagnosis Does Not Automatically Disqualify You

One of the most damaging misconceptions in advance care planning is the belief that receiving a diagnosis of dementia, cancer, or a serious mental health condition means you can no longer make a valid Advance Care Directive. Under Tasmanian law, this is wrong.

Decision-making capacity under the Guardianship and Administration Act 1995 is assessed at the time the ACD is made and is decision-specific. A person with early-stage dementia may retain full capacity to understand, weigh, and communicate decisions about their future medical care — even though their cognitive abilities are declining. A person undergoing cancer treatment may be fatigued and distressed but cognitively clear. A person living with a mental health condition may have fluctuating capacity, with clear windows during which they can make fully informed decisions.

The key question is not whether you have a diagnosis, but whether you have decision-making capacity right now, at the moment you sign the directive.

Why Timing Matters So Much After a Diagnosis

A diagnosis of progressive cognitive decline — Alzheimer's disease, vascular dementia, Lewy body dementia — creates a closing window. Capacity diminishes over time, and once it is lost, you cannot make a valid ACD. There is no mechanism for a family member, Enduring Guardian, or doctor to create an ACD on your behalf.

This makes post-diagnosis planning urgent. Families routinely delay because the conversation is emotionally difficult, because the person "seems fine for now," or because they are waiting for another specialist appointment. Every week of delay narrows the window.

For cancer diagnoses, the urgency is different but equally real. Treatment regimens — chemotherapy, radiation, surgical anaesthesia — can temporarily impair capacity. Making your ACD before treatment begins, while you are at your cognitive baseline, removes any risk that the directive is challenged later on the grounds that treatment side effects compromised your judgment.

How to Protect the Directive Against Capacity Challenges

When you make an ACD after receiving a significant diagnosis, the document is more likely to be challenged by family members or clinicians who argue that your capacity was already compromised. Three steps reduce this risk substantially:

1. Get a Formal Capacity Assessment from Your GP

Ask your GP — or the specialist managing your condition — to conduct a formal capacity assessment on the same day you intend to sign the ACD. This assessment should be documented in writing and should specifically state:

• The date and time of the assessment
• The clinical tests used (standardised tools like the Mini-Mental State Examination or Montreal Cognitive Assessment may be part of this, though capacity assessment goes beyond a screening score)
• The practitioner's conclusion that you understood the nature, purpose, and consequences of the ACD
• Any relevant observations about your cognitive state

This medical note, stored alongside your ACD, serves as contemporaneous evidence of capacity. It is the strongest defence against a future challenge.

2. Record the Signing

With your and the witnesses' consent, make a video or audio recording of the signing session. This is not a statutory requirement, but it creates a factual record that shows you were lucid, understood what you were signing, and were not under duress. Store the recording in the same location as the ACD.

3. Use an Interpreter or Support Person If Needed

If your diagnosis affects speech or communication (as in some forms of dementia, stroke, or motor neurone disease), you can use an interpreter or communication aid. If an interpreter is used, they must sign a certification of accuracy attached to the ACD. The directive itself must be in English, but the communication process can use whatever medium allows you to express your wishes.

Condition-Specific Drafting Considerations

Dementia

The most important question to address in your ACD is what should happen as your cognitive decline progresses to the point where you can no longer recognise family members, feed yourself, or communicate. Many people with early-stage dementia want to refuse CPR and life-prolonging treatment once they reach a specific stage of decline — but the challenge is defining that threshold in language a clinician can act on.

Avoid subjective triggers like "when I no longer have a meaningful quality of life." Instead, consider specific clinical markers: "If I develop advanced dementia to the point where I can no longer recognise close family members and am unable to feed myself without full assistance, I refuse cardiopulmonary resuscitation, mechanical ventilation, artificial nutrition and hydration, and intravenous antibiotics for pneumonia. I direct that my care focus on comfort and pain management."

You should also consider appointing an Enduring Guardian immediately. Your guardian can make decisions on matters your ACD does not cover — and as dementia progresses, novel medical situations will arise that no directive can anticipate.

Cancer

Cancer diagnoses come with specific treatment decisions that your ACD can address: whether you want further chemotherapy cycles if the first line fails, whether you consent to experimental treatments, and at what point you want to transition from active treatment to palliative care.

The challenge is that cancer treatment outcomes are uncertain and evolving. A refusal you make today based on your prognosis could become medically irrelevant if a new treatment becomes available. Consider building in review triggers: "This directive applies unless my treating oncologist certifies in writing that a new treatment with a reasonable prospect of remission has become available since the date of this directive."

Mental Health Conditions

Tasmanian law allows you to make an ACD covering mental health treatment decisions. This is particularly relevant for people with conditions that involve episodic loss of capacity — bipolar disorder, severe depression, psychotic disorders.

You can use your ACD to specify which psychiatric treatments you consent to or refuse during periods when you lack capacity. For example, you might consent to voluntary psychiatric admission but refuse electroconvulsive therapy, or you might authorise a specific medication regimen while refusing others.

The fluctuating nature of mental health conditions makes timing the ACD execution important. Make and sign the directive during a stable period, and get a concurrent capacity assessment to document that you were in a period of clear decision-making.

Do Not Wait

The common thread across all diagnoses is urgency. Capacity is either present or it is not, and for progressive conditions, the trajectory is one-directional. The best time to make an ACD is before a diagnosis. The second-best time is immediately after.

The Tasmania Advance Directive & Living Will Kit walks through the complete process — from GP capacity assessment through condition-specific drafting guidance to TASCAT registration — with refusal language that maps to hospital Goals of Care phases so your directive holds up under real clinical pressure.

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