Advance Care Directives Act 2013 SA: The Law Behind Your Healthcare Planning

What the Advance Care Directives Act 2013 Actually Says

The Advance Care Directives Act 2013 is the legislation that gives South Australians the legal right to document their future healthcare wishes and appoint decision-makers — and it's more comprehensive than most people realise.

Before this Act commenced on 1 July 2014, South Australians who wanted to plan ahead had to navigate three separate legal instruments: the Medical Power of Attorney, the Enduring Power of Guardianship, and the Anticipatory Direction. Each was governed by different rules, and coordinating all three was confusing and expensive.

The 2013 Act replaced all three with a single statutory document: the Advance Care Directive (ACD). If you already had one of the old documents, it remains valid — but executing a new ACD automatically revokes all prior instruments.

The Core Provisions You Need to Understand

Scope of the ACD. The Act allows you to record binding and non-binding instructions about healthcare decisions, personal and lifestyle matters, and living arrangements. It also lets you appoint up to four Substitute Decision-Makers (SDMs) to act on your behalf when you lose capacity. Financial and property decisions are explicitly excluded — those require a separate Enduring Power of Attorney under different legislation.

Binding vs non-binding provisions. This is where the Act gets teeth. A "binding provision" is a specific instruction — typically a refusal of medical treatment — that clinicians are legally required to follow. A "non-binding provision" is a broader value statement or preference that guides decision-making but doesn't compel action. The distinction hinges on clinical precision: "I refuse mechanical ventilation if I have an irreversible brain injury" is binding; "no heroic measures" is not.

Capacity presumption. The Act presumes every adult has decision-making capacity unless there's evidence to the contrary. Capacity is assessed functionally — can you understand the information, appreciate the consequences, retain the information long enough to make a decision, and communicate your choice? If capacity is in doubt, a GP or specialist should conduct a formal assessment.

Witnessing requirements. The Advance Care Directives Regulations 2014 prescribe strict rules about who can witness an ACD. The witness must be from an authorised professional category (JP, legal practitioner, registered health practitioner, social worker, police officer, or teacher) and must be completely independent — not an SDM, not a beneficiary of your will, not your treating clinician, and not a staff member in authority at your care facility.

The 2024 Amendments: What Changed

The Advance Care Directives (Review) Amendment Act 2023 — which came into full effect on 1 March 2024 — addressed several operational problems that had emerged in the decade since the original Act commenced.

Suicide and self-harm override. The most significant change gave clinicians explicit statutory authority to administer life-saving treatment despite a binding refusal if they reasonably suspect the patient's life-threatening condition resulted from attempted suicide or self-harm. The amendment creates a narrow exception that balances patient autonomy with clinical duty of care in psychiatric emergencies.

Digital copy recognition. The amendments established rules allowing clinicians to rely on digital copies of an ACD, such as those stored in My Health Record or local electronic medical record systems, during an acute medical crisis.

Expanded SDM provisions. The updated form allows up to four SDMs to be listed directly on the primary form. If more than four are appointed, a supplementary form is available. SDMs can use digital signatures for their acceptance sections, and interpreters can use digital signatures for their interpreter statement, simplifying execution for families spread across different locations.

Updated witness categories. The current list of authorised witnesses includes teachers and social workers, making it easier for people in regional areas to find an eligible witness.

What the Act Doesn't Cover

The boundaries of the ACD are as important as its provisions:

• Financial decisions — you cannot use an ACD to authorise someone to manage your bank accounts, sell property, or handle investments. That requires an EPA.
• Voluntary Assisted Dying — you cannot request VAD through an ACD. The Voluntary Assisted Dying Act 2021 has its own separate eligibility criteria and request process.
• Demanding treatment — the Act protects your right to refuse treatment, not to demand it. Clinicians are not obligated to provide treatments they consider medically futile.
• Post-death decisions — the ACD's authority ceases at death. Funeral arrangements, organ donation registration (as distinct from a preference statement in the ACD), and estate administration all fall under different legal frameworks.

Why Understanding the Legislation Matters

The practical reason to understand this Act is that its rules determine whether your ACD is legally valid and enforceable. The most common reasons an ACD fails in practice:

1. Signing sequence error — the witness signed before all SDMs completed their acceptance sections, invalidating the entire document
2. Disqualified witness — a family member or treating doctor witnessed the signing
3. Vague instructions — wishes drafted in general terms that don't meet the threshold for a binding provision
4. Using the old form — the pre-2024 form doesn't include sections for the expanded SDM provisions or the health conditions section

Our South Australia Advance Directive & Living Will Kit is built around the current legislation — the 2013 Act as amended in 2024 — with step-by-step checklists that prevent the execution errors that invalidate directives and clinically precise drafting examples that ensure your refusals are legally binding.

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