Advance Directives & Enduring Powers of Attorney

What is an advance directive?

An advance directive is a statement signed by a person setting out in advance the treatment wanted or not wanted in the event of becoming unwell in the future. An advance directive can be a good way to gain more control over the treatment and care you are given if you experience an episode of mental illness that leaves you unable to decide or communicate your preferences at the time.

Who can make an advance directive?

The Code of Health and Disability Services Consumers' Rights gives any person who is legally competent to make a healthcare choice the right to make an advance directive.

What can I make an advance directive about?

Advance directives should focus on treatment and care. For example, you could state the treatments you do or don't want to be given when you are in a crisis, including drugs or ECT; or the places you would prefer to receive services when in crisis, such as hospital, home or a crisis house.

How do I go about making an advance directive?

It's not difficult to make an advance directive. You don't need a lawyer. In fact, you have the right to make an advance directive without involving anyone else in its preparation. However, taking the following steps will help ensure that your advance directive is respected, and the decisions contained within it acknowledged and acted upon.

  • If possible, make your advance directive in writing rather than verbally. State your preferences as clearly as you can, then sign and date it.

  • If you prepare your advance directive with the help of your clinician or another health worker, he or she can verify that you are competent and sufficiently informed about your stated preferences, and can help you clarify the type of situation you intend your directive to cover.

  • If you involve your family/whānau in preparing your advance directive, or at least inform them of it, they will be better equipped to support you and to advocate for your wishes in a crisis.

  • Regularly review and update your advance directive so that it reflects any changes in your condition or your preferences, and is viewed by clinicians as still representing your wishes.

  • Keep a copy of your advance directive yourself, and give copies to your family or support persons, and the clinicians most often involved in your care.

Will my advance directive always be followed?

No. When deciding whether or not to follow your advance directive, your clinician will consider five questions:

  • Were you competent to make the decision when you made the advance directive?
  • Did you make the decision of your own free will?
  • Were you sufficiently informed to make the decision?
  • Did you intend your directive to apply to the present circumstances, which may be different from those anticipated?
  • Is the advance directive out of date?

The Code of Health and Disability Services Consumers' Rights sets out your right to be fully informed, make an informed choice, and give informed consent. However, your advance directive will not override the ability of your clinician to authorise compulsory treatment if you are subject to a compulsory treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992. The Mental Health Act also directs the responsible clinician to attempt to get your consent to treatment even though he or she may give you treatment without your consent. It may still be worthwhile having an advance directive if you are subject to a compulsory treatment order because it will give your clinician an indication of your wishes. 

What options do I have if my advance directive is not followed?

If your advance directive about your future health care is not followed and you are not satisfied with the clinician's explanation, you can complain to the Health and Disability Commissioner.

What happens if I do not have an advance directive?

If you have a crisis and are considered incompetent to consent to treatment (and you're not being sectioned under the Mental Health Act), your clinician can still decide on your treatment, taking into account your best interests, your probable choice if you were competent to make it, and the views of other people who are interested in your welfare.

What about nominating someone to make decisions on my behalf?

In some countries your advance directive can include a nominated person to make decisions on your behalf. However, in New Zealand you need to appoint a person to be your enduring power of attorney in relation to your personal care and welfare, through the Protection of Personal Property Rights Act 1988. If you wish, you can give this person the power to make healthcare decisions on your behalf when you are not competent to do so yourself.

You should seek advice from a lawyer if you wish to appoint someone as your enduring power of attorney.

What is the best way to protect my wishes and interests?

An advance directive will help ensure your wishes and interests are respected in a crisis, but an enduring power of attorney and a crisis plan will protect your wishes and interests even more.

Choosing someone to make decisions for you — enduring power of attorney

If you think you require more protection than having an advance directive will achieve, an enduring power of attorney lets you choose someone (such as a partner, close friend or relative) to make decisions for you or to act on your behalf if you lose your capacity.

The person you choose must be over 20 years of age, and should know you well enough to understand what you would want in a particular situation.

If you are considering giving someone enduring power of attorney, talk to a lawyer to make sure you are fully informed about what it means.

If you have one, we recommend that you attach a copy of your advance directive to the enduring power of attorney document.