This article on advance care planning and dementia patients was updated on 23 August, 2022.
A patient who doesn’t have legal capacity because of dementia, even the early signs of it, can’t sign documents such as wills and the assigning of their power of attorney.
But what about their advance care document?
Because of the rigidity of the first two, and the fact that advance care documents are often signed in a lawyers’ offices along with these other papers, we automatically assume that the legal rules are as strict for advance care planning (ACP).
But Caroline Litster says in her Caresearch blog, posted on May 19, Complexities in advance care planning in aged care: the ELDAC Helpline experience that: “Overall, a person with dementia should not be assumed to lack decision-making capacity.”
“One common challenge faced by staff is when a person with dementia or cognitive impairment is transferred to residential or community aged care with no ACP documentation or prior conversations about their end-of-life care preferences.”
“In Australia, where rates of dementia are high, substitute decision-makers are commonly required, and even a resident with reduced decision-making capacity can participate in ACP discussions, albeit with support from staff and family.”
The ELDAC Helpline receives many calls about ACP and it understands that ACP for many cases “can be confusing.”
“Our advice to callers about this topic varies according to the situation.”
“In many cases their decision-making capacity may fluctuate over time, allowing for ACP discussions to be had.”
“Similarly, residents with mild cognitive impairment can discuss their wishes before further decline occurs. A resident with limited decision-making capacity can still be involved in ACP conversations, such as weighing in on their overall wishes even if they are unable to comment on specific end-of-life scenarios.”
However, if a resident is considered to lack decision-making capacity, decisions must then be made on behalf of the resident by a substitute decision-maker as an Advance Care Directive (ACD) cannot be completed for people without such capacity, Caroline says.
“Callers frequently ask for clarity regarding the difference between common law ACDs and statutory law ACDs, including information about when an ACD must be followed. We understand this is a common question due to the variability between forms in each Australian State and Territory,” she says.
Many of these questions on adavce care planning and dementia are addressed ELDAC’s ‘Advance Care Directives’ section of its Legal Toolkit, she explains.
To read Caroline’s piece go to:
Caroline outlines a number of resources people can use to get further information about this topic. These include:
- End of Life Law in Australia End of Life Law in Australia
- The ELDAC Legal toolkit
- Advance Care Planning Australia Advance Care Planning Australia.
To read about the difference between a vulnerable person and someone who lacks capacity, go to our sponsored article: https://good-grief.com.au/sponsored-article-decision-making-is-a-human-right/
To read more on talking about end of life in aged care facilities, go to: