Terminal medical diagnoses and Voluntary Assisted Dying in South Australia

Depressed woman at a mental hospital

Receiving bad news from a doctor about your future health can be incredibly hard to accept, particularly when it involves being told that you have an illness from which you will die.

For many years there has been debate within our community and Parliament surrounding whether a person ought to be given the right to end their life on their own terms when the progression of a disease will result in the suffering of pain and will leave them feeling unable to function and live as they would wish. In Australia and around the world, governments have recognised the need to permit the compassionate ending of one’s life under certain circumstances. Most recently in South Australia, our Parliament has recognised that need and passed legislation called the Voluntary Assisted Dying Act 2021 (SA) (“the Act“), providing a framework for assisted dying.

Voluntary Assisted Dying Act – eligibility

The implementation date of the Act will be confirmed by the government in collaboration with SA Health.  From that date, South Australians who:

1. Are over the age of 18 years; and
2. Are Australian Citizens or permanent residents; and
3. Who have lived in the State for a period of at least 12 months prior to the request; and
4. Who have capacity for decision making; and
5. Who have been diagnosed with a disease, illness or medical condition that meets all the below conditions:
   1. it is incurable;
   2. it is advanced and progressive;
   3. it will cause death within 6 months, or 12 months for a neurodegenerative disease;
   4. it is causing you suffering that cannot be relieved in a manner that you consider tolerable; and
6. Who are acting freely and without coercion;

will be permitted to make a first request to access the Voluntary Assisted Dying Pathway.

People seeking to access the Voluntary Assisted Dying Pathway must do so personally and must have capacity. There are a number of safeguards in place, including review by suitably qualified and trained medical practitioners, and the requirement for declarations to be executed by the person and their medical practitioner, to prevent abuse of the process.

How does the Act affect my estate planning?

The Act only permits a person with decision making capacity who meets the above criteria to carry out the application and the dying process. As such, there is no ability to appoint a family member to make that decision if you have lost capacity, nor request that anyone other than a suitably qualified and trained medical practitioner be involved in that process. This means that anyone appointed by your Advance Care Directive or your Power of Attorney cannot assist you in any step of the Voluntary Assisted Dying Pathway.

However, after receiving an adverse medical diagnosis, you should ensure that you:

1. Review your Will, to ensure it is up to date and clearly expresses your wishes including with respect to your assets, guardianship of your children, and your funeral and burial arrangements. If you do not have a Will you should make a Will.
2. Make an Advance Care Directive, which allows you to appoint persons to act on your behalf in relation to medical decisions if you lose capacity to make your own decisions. You can include any binding refusals of healthcare so that your end of life wishes are carried out even if you do not have capacity.
3. Consider the need for an Enduring Power of Attorney, to appoint persons to act on your behalf in respect of legal and financial matters, should those tasks become difficult to manage while you are unwell or if you lose capacity.
4. Consider whether you should access your superannuation benefits by way of a TPI claim or terminal diagnosis claim, to maximise the benefits and accessibility of your superannuation and minimise tax payable by family members after your death.
5. Seek advice regarding restructuring of assets, to ensure that your family can access funds immediately following your death or continue your business so that they do not experience financial pressure while they grieve.

Let us help you

Please get in touch with us to support you and your family during this time. Our team can provide advice and understanding and help support you during the difficult time following a distressing medical diagnosis.

Find out more information about our Wills & Estates services, get in touch with us here, or give us a call on (08) 8212 1077.