As an estate lawyer, increasingly, people are asking about Voluntary Assisted Dying (VAD). More specifically if they can include Voluntary Assisted Dying in their Advance Care Directive.
Voluntary Assisted Dying is a deeply personal choice. For some, it offers peace of mind. For others, it may not align with their beliefs. There is no right or wrong answer — only what is right for you.
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South Australia’s Voluntary Assisted Dying Act 2021 came into effect in January 2023. It allows eligible people with a terminal illness to access medication that will end their life in a safe, controlled, and lawful way.
For many, VAD represents something deeply important: the ability to maintain control and dignity at the end of life. But it’s essential to understand that the process is highly regulated, and there are strict eligibility requirements. It’s also not something your family or your substitute decision-makers can initiate on your behalf — no matter how well-meaning they may be.
Let’s dig a bit deeper into what this means for you, your Advance Care Directive, and your end-of-life planning.
Who Can Access Voluntary Assisted Dying in South Australia?
To be eligible for VAD in South Australia, you must meet all of the following criteria:
- Have a terminal illness that is expected to cause your death within 6 months, or 12 months if you have a neurodegenerative condition such as Motor Neurone Disease or advanced Parkinson's disease.
- Experiencing suffering that cannot be relieved in a way that you find tolerable.
- Must have decision-making capacity, meaning you are able to understand the choices before you, weigh up the consequences, and communicate your decisions.
- Maintain capacity throughout the entire VAD process.
This last point is crucial and can significantly impact many people as they go through the VAD process. If at any stage, you lose the ability to make decisions for yourself - whether through the natural progression of your illness or otherwise - you are no longer eligible for the VAD process.
Voluntary Assisted Dying is a self-directed decision. It cannot be made by someone else on your behalf.
How This Impacts Your Advance Care Directive
Your Advance Care Directive (ACD) is a powerful document that allows you to express your preferences for medical treatment, lifestyle, and care, and to appoint a substitute decision-maker who can speak for you if you lose capacity.
As such, your ACD cannot be used to facilitate Voluntary Assisted Dying.
In a nutshell:
VAD = full capacity to access.
ACD = lost capacity to access.
Even if you go rogue and state in your Advance Care Directive that you wish to access VAD under particular circumstances, your instructions have no legal effect.
This catches some people off guard. They assume that by setting out their wishes in advance, their family can carry them out later.
VAD is not something that can be pre-authorised - the person themselves must initiate the process, within the legal framework, and only if they meet all eligibility criteria.
What If I'm Diagnosed with Dementia?
One of the most common questions I get is "Can I access VAD if I have dementia?" The answer, under current South Australian law is no.
Dementia is a progressive, degenerative condition that affects memory, judgment, and cognition. Most people with dementia will eventually lose the capacity required by the eligibility criteria to request or complete the VAD process.
Unfortunately, once dementia becomes advanced, it is often too late to legally begin or finish the steps required.
Even if they previously expressed a strong desire for it in their Advance Care Directive or in conversations with loved ones, VAD is not a viable option for people in the later stages of dementia.
The VAD + ACD Workaround
To help your substitute decision-makers understand and advocate for your wishes when they’re trying to navigate the medical system and treatment options on your behalf, I sometimes add a clause into an Advance Care Directive that outlines your desire to access assisted dying in another country (if you want the exact wording, let's get together for a chat!).
While this is not legally binding, it can help your decision-makers understand your values and priorities. It provides moral and ethical guidance if they are faced with difficult decisions about your care.
They may not be able to act on your behalf when it comes to Voluntary Assisted Dying, but they will have some clarity around what you would have wanted.
Plan Ahead - While You Still Can
Because eligibility for VAD depends on capacity and current circumstances, it's essential to plan early if you are living with a serious or life-limiting illness.
Don't wait until you are too unwell, or until you've lost the ability to navigate the legal and medical process.
If you believe VAD may be something you wish to explore, speak to your care providers and start having those conversations early. Keep in mind two independent medical practitioners must assess your eligibility and the process of accessing VAD is careful and deliberate (as it should be). It takes time that many people don't have if they leave it to the very end.
Your legal planning should also reflect this reality. Ensure your ACD is up to date and contains meaningful, values-based guidelines for your decision makers. Appoint people you trust and talk to your family about your preferences, even if those conversations are difficult.
End-of-life planning is about more than documents and legal requirements. It's about ensuring that your values are understood and reflected so your voice continues to be heard even if you can no longer speak for yourself.
As Your Estate Lawyer, my job isn't just to draft paperwork; it's to help you have these conversations with clarity, compassion, and care.