Dementia Advance Directive Queensland: Planning Before Capacity Declines
The Window Is Smaller Than You Think
A dementia diagnosis doesn't immediately remove someone's legal capacity — but it starts a clock that can't be reversed. Under Queensland law, you need decision-making capacity to create an Advance Health Directive (AHD) or an Enduring Power of Attorney (EPOA). Once capacity declines past the legal threshold, these documents can no longer be executed.
The critical point: capacity is assessed at the time of signing, not at the time of diagnosis. Someone with early-stage dementia or mild cognitive impairment often still has sufficient capacity to understand and execute planning documents. But that window narrows progressively, and by the time a family realises they need to act, it may have already closed.
If your parent or partner has received a dementia diagnosis, the single most important step is to complete their AHD and EPOA now — not after the next specialist appointment, not after the family discussion that keeps getting postponed.
Capacity Requirements Under Queensland Law
Under sections 41 and 42 of the Powers of Attorney Act 1998, the capacity rules for an AHD (and any EPOA power it gives) require the person to:
- Freely and voluntarily make the decision to create the document
- Understand the nature and effect of the document — that it records binding medical treatment preferences and/or appoints a health attorney
- Communicate their decision in some form (spoken, written, or through assistive technology)
Capacity is decision-specific and time-specific. A person with dementia might have capacity to make simple personal decisions on a Tuesday afternoon but lack capacity for complex financial decisions. The question isn't "do they have dementia?" but "right now, in this moment, can they understand what this specific document does?"
Queensland's Capacity Assessment Guidelines explicitly state that a diagnosis alone does not determine incapacity. The registered medical practitioner completing the Section 5 capacity certificate must assess the person's actual understanding at the time of the consultation, not rely on a diagnostic label.
The GP Consultation After Diagnosis
The GP appointment for someone with a dementia diagnosis is more complex and more important than for someone without cognitive concerns. Here's what to plan for:
Schedule the appointment for the person's best time of day. Dementia symptoms often fluctuate. Many people with early-stage dementia are clearest in the morning. Avoid late afternoon appointments when sundowning effects can impair concentration and communication.
Bring a support person — but let the principal speak. An adult child or spouse can provide context, but the GP needs to hear the person's own understanding of the document. Coaching or answering on their behalf during the capacity assessment undermines the process.
Allow extra time. A standard 15-minute consult is inadequate. Book a 45-minute to 60-minute appointment and let the practice know in advance that you need a capacity assessment for an AHD.
Discuss treatment preferences in concrete terms. Abstract questions ("what kind of care do you want?") are harder for someone with cognitive decline than specific, concrete ones ("if your heart stopped, would you want doctors to try to restart it?"). Help the GP frame the clinical discussion in practical language.
Expect — and respect — a negative assessment. If the GP determines that the person doesn't have sufficient capacity, the AHD cannot be validly executed. Proceeding anyway creates a document that is legally vulnerable to challenge. The alternative, if capacity is borderline, is to seek a formal capacity assessment from a geriatrician or neuropsychologist for a more detailed evaluation.
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What to Include in a Dementia-Specific AHD
Standard AHD templates assume the person is planning for a hypothetical future loss of capacity. After a dementia diagnosis, that future is more concrete — and the AHD should reflect it.
Address the specific trajectory. Dementia is progressive. Cover the treatment decisions that will arise as capacity declines: what level of medical intervention do they want when they can no longer recognise family? When they can no longer swallow safely? When a secondary illness (pneumonia, infection) develops alongside the dementia?
Include residential care preferences. Where do they want to receive care — at home for as long as possible, in a familiar aged care facility, or wherever provides the best clinical support? These preferences aren't legally binding in the same way treatment directions are, but they provide critical guidance for attorneys and care teams.
Consider the mental health component. Dementia can involve psychiatric symptoms — agitation, psychosis, severe anxiety. Queensland Health offers a specific AHD for Mental Health form that may be relevant to preferences about treatments such as antipsychotic medication or ECT.
Record values explicitly. Include a personal statement about what quality of life means to you or your parent. While the specific treatment directions carry legal force, the values statement gives context for decisions the AHD doesn't specifically cover — and it's the framework your appointed attorney will use when making those grey-area decisions.
For Adult Children Helping a Parent
If you're the one driving this process for a parent with dementia, a few practical considerations:
You probably can't be the witness. Children and relatives of the principal are ineligible to witness an AHD in Queensland. Find an independent JP or Commissioner for Declarations.
Coordinate with siblings early. Attorney appointments — especially in blended families — can become contentious. Discuss who should be appointed as health attorney before the signing session, not during it. If siblings disagree, resolve it while the parent still has capacity to make their own choice.
Don't wait for unanimity. Family consensus is ideal, but it's not a legal requirement. Your parent can appoint whoever they choose, and their decision takes legal priority over anyone else's preferences.
Plan for EPOA simultaneously. A dementia diagnosis affects financial capacity as well. If your parent doesn't already have an EPOA covering financial matters, complete both documents in the same process — same GP visit, same witnessing session, same distribution.
Act While the Window Is Open
Dementia planning is time-critical in a way that other advance care planning is not. Our Queensland Advance Directive & Living Will Kit includes dementia-specific treatment direction templates, a GP consultation worksheet designed for cognitive assessments, and an attorney selection guide that addresses the dynamics of family decision-making — everything you need to complete valid documents while capacity still exists.
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