South Australia
Advance Care Directives Regulations 2014
under the Advance Care Directives Act 2013

Contents
1	Short title
3	Interpretation
4	Health practitioners
4A	Electronic copies of advance care directives
5	Giving advance care directives
6	Provisions that cannot be included in advance care directives
7	Witnessing advance care directives
8	Appointment of substitute decision-makers
9	Copies of advance care directives
10	Revoking advance care directives
11	Advising Tribunal of wish to revoke advance care directive
12	Interstate advance care directives and corresponding laws
12A	Exemption from requirement to give effect to advance care directives where suicide attempt or self‑harm
13	Application of Part 7 of Act
14	Resolution of disputes by Public Advocate
15	Referral of matters to Tribunal or Public Advocate
16	Fees
Schedule 1—List of suitable witnesses
Schedule 2—Fees
Schedule 3—Further transitional provisions
1	Further transitional provisions relating to appointment of enduring guardians
Legislative history

1—Short title
These regulations may be cited as the Advance Care Directives Regulations 2014.
3—Interpretation
In these regulations—
Act means the Advance Care Directives Act 2013.
4—Health practitioners
	(1)	For the purposes of the definition of health practitioner in section 3(1) of the Act, the following professions and practices are declared to be included in the ambit of that definition:
	(a)	the provision of an ambulance service and medical treatment by a member of the staff of SAAS or other person or body authorised to provide ambulance services under the Health Care Act 2008;
	(b)	paramedic.
	(2)	In this regulation—
ambulance service, medical treatment and SAAS have the same meanings as in the Health Care Act 2008.
4A—Electronic copies of advance care directives
For the purposes of section 5A of the Act, electronic copies of an advance care directive of the following kinds are prescribed:
	(a)	an electronic copy entered on the My Health Record system;
	(b)	an electronic copy entered on the Sunrise EMR system;
	(c)	an electronic copy entered on an electronic record system approved by the Chief Executive,
in each case being an electronic copy that was, prior to being entered on the relevant system, certified as a true copy of a particular advance care directive by a person, or a person of a class, included on the list of suitable witnesses set out in Schedule 1.
5—Giving advance care directives
	(1)	For the purposes of section 11(2)(c) of the Act, a person giving an advance care directive must certify, by completing and signing the relevant part of the advance care directive form, that he or she was given the advance care directive information statement referred to in regulation 7(2) and understood the information contained in the statement.
	(2)	Without limiting the ways in which a certification may be made, or a part of an advance care directive completed or signed, under subregulation (1), a person giving an advance care directive may do so by electronic means.
6—Provisions that cannot be included in advance care directives
For the purposes of the definition of mandatory medical treatment in section 12(4) of the Act, medical treatment of the following kinds are prescribed:
	(a)	medical treatment ordered by a court;
	(b)	medical treatment of a kind contemplated by section 56 or 57 of the Mental Health Act 2009;
	(c)	medical treatment that is the subject of a requirement or direction (however described) of the Chief Public Health Officer under the South Australian Public Health Act 2011.
7—Witnessing advance care directives
	(1)	For the purposes of section 15(1)(a) of the Act, an advance care directive will only be taken to be witnessed in accordance with these regulations if—
	(a)	in the case where 1 or more substitute decision‑makers are appointed under the advance care directive—each substitute decision‑maker has complied with regulation 8(1) before the advance care directive is witnessed; and
	(b)	in any case—the person giving the advance care directive signs the advance care directive form in the presence of the suitable witness who witnesses the advance care directive.
	(2)	For the purposes of section 15(1)(b)(i) of the Act, a suitable witness must give to the person giving the advance care directive a copy of the advance care directive information statement (and compliance with this requirement will, for the purposes of section 15(1)(b)(ii) of the Act, be taken to constitute an explanation of the legal effects of giving an advance care directive of the kind proposed).
	(3)	For the purposes of the definition of suitable witness in section 15(4) of the Act, a suitable witness must satisfy the following requirements:
	(a)	the suitable witness must be a competent adult;
	(b)	the suitable witness must be a person, or a person of a class, included on the list of suitable witnesses set out in Schedule 1.
	(4)	To avoid doubt, nothing in subregulation (3) affects an advance care directive witnessed by a suitable witness who was competent at the time he or she witnessed the advance care directive, but who later lost competency.
	(5)	In this regulation—
advance care directive information statement means the advance care directive information statement determined by the Minister from time to time for the purposes of this regulation and published in the Gazette.
8—Appointment of substitute decision-makers
	(1)	For the purposes of section 21(3) of the Act, it is a requirement that the substitute decision‑maker must certify, by completing and signing the relevant part of the advance care directive form before the advance care directive is witnessed, that he or she—
	(a)	accepts the appointment as substitute decision‑maker; and
	(b)	has read and understands the guidelines for substitute decision‑makers.
	(1a)	Without limiting the ways in which a certification may be made, or a part of an advance care directive completed or signed, under subregulation (1), a substitute decision‑maker may do so by electronic means.
	(2)	In this regulation—
guidelines for substitute decision-makers means the guidelines determined by the Minister from time to time for the purposes of this regulation and published in the Gazette.
9—Copies of advance care directives
	(1)	For the purposes of section 24(2)(a) of the Act, a document may be certified as a true copy of a particular advance care directive by a person, or a person of a class, included on the list of suitable witnesses set out in Schedule 1 signing and certifying the document as a true copy of the advance care directive.
	(2)	For the purposes of section 24(2)(b) of the Act, a scheme determined by the Minister from time to time in respect of making copies of advance care directives available electronically is prescribed.
	(3)	For the purposes of section 24(2)(c) of the Act, it is a requirement that the health practitioner accesses the electronic copy of the advance care directive on—
	(a)	the My Health Record system; or
	(b)	the Sunrise EMR system; or
	(c)	an electronic record system approved by the Chief Executive.
10—Revoking advance care directives
For the purposes of section 29(2) of the Act, a person who has given an advance care directive may revoke the advance care directive—
	(a)	by giving another advance care directive; or
	(b)	by giving, or causing to be given, a written indication that he or she has revoked the advance care directive.
11—Advising Tribunal of wish to revoke advance care directive
For the purposes of section 31(1) of the Act, a person must advise the Tribunal of a wish to revoke an advance care directive in such manner and form as is determined from time to time by the Tribunal.
12—Interstate advance care directives and corresponding laws
	(1)	For the purposes of section 33(1) of the Act, instruments of the following classes are declared to be interstate advance care directives:
	(a)	an enduring power of attorney under the Powers of Attorney Act 2006 of the Australian Capital Territory that is in force;
	(b)	a health direction under the Medical Treatment (Health Directions) Act 2006 of the Australian Capital Territory that is in force;
	(c)	an instrument appointing an enduring guardian under the Guardianship Act 1987 of New South Wales that is in force;
	(d)	an advance personal plan under the Advance Personal Planning Act 2013 of the Northern Territory that is in force;
	(e)	an enduring power of attorney under the Powers of Attorney Act 1998 of Queensland that is in force;
	(f)	an advance health directive under the Powers of Attorney Act 1998 of Queensland that is in force;
	(g)	an instrument appointing an enduring guardian under the Guardianship and Administration Act 1995 of Tasmania that is in force;
	(ga)	an advance care directive instrument under the Guardianship and Administration Act 1995 of Tasmania that is in force;
	(h)	an instrument appointing an enduring guardian under the Guardianship and Administration Act 1986 of Victoria that is in force;
	(i)	a refusal of treatment certificate under the Medical Treatment Act 1988 (repealed) of Victoria that is in force;
	(j)	an enduring power of attorney (medical treatment) under the Medical Treatment Act 1988 (repealed) of Victoria that is in force;
	(ja)	an enduring power of attorney under the Powers of Attorney Act 2014 of Victoria that is in force;
	(jb)	an advance care directive under the Medical Treatment Planning and Decisions Act 2016 of Victoria;
	(k)	an advance health directive under the Guardianship and Administration Act 1990 of Western Australia that is in force;
	(l)	an enduring power of guardianship under the Guardianship and Administration Act 1990 of Western Australia that is in force;
	(m)	an instrument (however described) corresponding to an advance care directive that is binding under the common law and in force.
Note—
Such instruments are often referred to as a living will.
	(2)	For the purposes of section 33(4) of the Act, the following Acts are declared to be corresponding laws:
	(a)	the Powers of Attorney Act 2006 and the Medical Treatment (Health Directions) Act 2006 of the Australian Capital Territory;
	(b)	the Guardianship Act 1987 of New South Wales;
	(c)	the Advance Personal Planning Act 2013 of the Northern Territory;
	(d)	the Powers of Attorney Act 1998 and the Guardianship and Administration Act 2000 of Queensland;
	(e)	the Guardianship and Administration Act 1995 of Tasmania;
	(f)	the Guardianship and Administration Act 1986, the Medical Treatment Act 1988 (repealed), the Medical Treatment Planning and Decisions Act 2016 and the Powers of Attorney Act 2014 of Victoria;
	(g)	the Guardianship and Administration Act 1990 of Western Australia;
	(h)	the common law.
12A—Exemption from requirement to give effect to advance care directives where suicide attempt or self‑harm
	(1)	For the purposes of section 36(1b)(a) of the Act, the following information is required:
	(a)	the name, address and age (if known) of the person to whom the health care was provided;
	(b)	the date or dates on which the health care was provided to the person;
	(c)	the location or locations at which the health care was provided to the person;
	(d)	a description of the health care provided to the person;
	(e)	the grounds for the health practitioner's suspicion that the person had attempted suicide or self‑harmed;
	(f)	the grounds for the health practitioner's opinion that the provision of the health care was reasonably necessary to save the life of the person.
	(2)	For the purposes of section 36(1b)(b) of the Act, a report must comply with the following requirements:
	(a)	the report must be made to the Chief Executive in a manner and form determined by the Chief Executive;
	(b)	the report must include such information, or be accompanied by such records and documents, as may be required by the Chief Executive.
	(3)	In this regulation—
Chief Executive means the Chief Executive of the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of the Act and includes a person for the time being acting in that position.
13—Application of Part 7 of Act
For the purposes of section 44 of the Act, a matter related to the residential and accommodation arrangements and personal affairs of a person who has given an advance care directive is specified.
14—Resolution of disputes by Public Advocate
	(1)	For the purposes of section 45 of the Act, and despite section 23 of the Guardianship and Administration Act 1993, the Public Advocate may only delegate a function or power under that section relating to mediation to a person if the Public Advocate is satisfied that the person has suitable qualifications and expertise in mediation.
	(2)	A mediator to whom the Public Advocate has delegated a function or power under section 45 of the Act has, for the purposes of that section, the same privileges and immunities as a member of the Tribunal under the South Australian Civil and Administrative Tribunal Act 2013.
15—Referral of matters to Tribunal or Public Advocate
	(1)	If the Public Advocate decides to refer a matter to the Tribunal under section 46(1) of the Act, the following provisions apply:
	(a)	the referral must be made within 7 business days of the Public Advocate bringing a mediation to an end or refusing to determine an application, as the case may be;
	(b)	the Public Advocate must notify the Tribunal whether any or all parties have consented to the matter being referred to the Tribunal;
	(c)	the Public Advocate must provide the Tribunal with written reasons for its decision to refer the matter to the Tribunal;
	(d)	the Public Advocate must provide the Tribunal with a summary of the dispute between the parties, the contact details of the parties and all other information relevant to the matter that is in the possession of the Public Advocate when the referral is made;
	(e)	if the matter was the subject of mediation under section 45 of the Act and the mediator was a delegate of the Public Advocate—the Public Advocate must provide the Tribunal with the name of the mediator.
	(2)	If the Tribunal decides to refer a matter to the Public Advocate under section 49(1) of the Act, the following provisions apply:
	(a)	the referral must be made within 7 business days of the Tribunal making the decision to refer;
	(b)	the Tribunal must notify the Public Advocate whether any or all parties have consented to the matter being referred to the Public Advocate;
	(c)	the Tribunal must provide the Public Advocate with written reasons for its decision to refer the matter to the Public Advocate;
	(d)	the Tribunal must provide the Public Advocate with a summary of the dispute between the parties, the contact details of the parties and all other information relevant to the matter that is in the possession of the Tribunal when the referral is made.
	(3)	For the purposes of section 49 of the Act, the Tribunal may not refer a matter to the Public Advocate if the matter has already been the subject of mediation under section 45 of the Act.
16—Fees
The fees payable for the purposes of the Act are as prescribed in Schedule 2.

Schedule 1—List of suitable witnesses
The following persons, or classes of persons, are suitable witnesses:
	(a)	health practitioners;
	(b)	persons enrolled on the roll of the Supreme Court of a State or Territory, or the High Court of Australia, as a legal practitioner (however described);
	(c)	Commissioners for taking affidavits in the Supreme Court;
	(d)	Justices of the Peace;
	(e)	police officers;
	(f)	social workers;
	(g)	teachers.

Schedule 2—Fees

Description of fee	Fee	
Application under section 45 of the Act	nil	

Schedule 3—Further transitional provisions
1—Further transitional provisions relating to appointment of enduring guardians
	(1)	Except as provided by this clause, this clause is in addition to, and does not derogate from, the provisions of Parts 5 and 8 of Schedule 1 of the Act.
	(2)	This clause applies to an instrument in writing that—
	(a)	was created before the commencement of Schedule 1 Part 5 of the Act; and
	(b)	complies with any requirements under section 25(2)(a) of the Guardianship and Administration Act 1993 (as in force at the time the instrument was created); and
	(c)	purports to appoint an enduring guardian in accordance with that section; and
	(d)	had not, at the time Schedule 1 Part 5 of the Act came into operation, been endorsed or witnessed (or both) as required under section 25(2)(b) and (c) of the Guardianship and Administration Act 1993 (as in force immediately before the commencement of Schedule 1 Part 5 of the Act).
	(3)	An instrument to which this clause applies will, despite the operation of Schedule 1 Part 5 of the Act—
	(a)	be taken to have been in force from the time it was created; and
	(b)	be taken to continue in force until—
	(i)	it is endorsed and witnessed in accordance with section 25(2)(b) and (c) of the Guardianship and Administration Act 1993 (as in force immediately before the commencement of Schedule 1 Part 5 of the Act); or
	(ii)	31 December 2015,
whichever is the sooner; and
	(c)	on being so endorsed and witnessed (whether before or after the commencement of this clause), will be taken to be an advance care directive given in accordance with the Act,
(but, to avoid doubt, nothing in this subclause operates to effect the appointment of an enduring guardian under the Guardianship and Administration Act 1993).
Note—
The provisions of the Advance Care Directives Act 2013 will then apply to the instrument as if it were an advance care directive given under the Act rather than an appointment of an enduring guardian under the Guardianship and Administration Act 1993.
	(4)	An advance care directive referred to in subclause (3) will be taken—
	(a)	to have been given by the person who purported to appoint the enduring guardian; and
	(b)	to appoint as a substitute decision‑maker each person who (by endorsement on the instrument to which this clause applies) has accepted his or her purported appointment as an enduring guardian; and
	(c)	to contain such provisions as may be necessary to enable each substitute decision‑maker to make any decision he or she could have made as the person's enduring guardian (but no other provision).
	(5)	Any condition or limitation contained in an instrument to which this clause applies will be taken to apply to the advance care directive contemplated by this clause.
	(6)	A provision of an instrument to which this clause applies that is a provision of a kind contemplated by section 6 or 12(1) of the Act will be taken to be void and of no effect.
	(7)	An instrument to which this clause applies will, for all purposes, be taken to be an advance care directive form.
	(8)	A reference in any instrument or document to an enduring guardian (being an enduring guardian purportedly appointed by an instrument to which this clause applies) will be taken to be a reference to a substitute decision‑maker appointed by this clause.
	(9)	Clauses 36 and 37 of Schedule 1 of the Act apply in relation to the operation of this clause as if the advance care directive were an advance care directive contemplated by clause 35 of that Schedule.

Legislative history
Notes
	•	Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.
	•	Earlier versions of these regulations (historical versions) are listed at the end of the legislative history.
	•	For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au.
Principal regulations and variations
New entries appear in bold.
Year	No	Reference	Commencement	
2014	77	Gazette 12.6.2014 p2491	1.7.2014: r 2	
2015	15	Gazette 5.3.2015 p884	29.3.2015: r 2	
2015	46	Gazette 14.5.2015 p1762	14.5.2015: r 2	
2015	50	Gazette 28.5.2015 p2297	28.5.2015: r 2	
2016	223	Gazette 8.9.2016 p3710	8.9.2016: r 2	
2018	223	Gazette 25.10.2018 p3878	25.10.2018: r 2	
2019	186	Gazette 11.7.2019 p2693	11.7.2019: r 2	
2024	2	Gazette 25.1.2024 p76	1.3.2024: r 2	
Provisions varied
New entries appear in bold.
Entries that relate to provisions that have been deleted appear in italics.
Provision	How varied	Commencement	
r 2	omitted by Legislation Revision and Publication Act 2002	29.3.2015	
r 4			
r 4(1)	varied by 50/2015 r 4	28.5.2015	
r 4A	inserted by 2/2024 r 3	1.3.2024	
r 5			
r 5(1)	r 5 redesignated as r 5(1) by 2/2024 r 4	1.3.2024	
r 5(2)	inserted by 2/2024 r 4	1.3.2024	
r 7			
r 7(1)	varied by 50/2015 r 5	28.5.2015	
r 8			
r 8(1)	varied by 50/2015 r 6	28.5.2015	
r 8(1a)	inserted by 2/2024 r 5	1.3.2024	
r 9			
r 9(3)	inserted by 2/2024 r 6	1.3.2024	
r 11	substituted by 15/2015 r 4	29.3.2015	
r 12			
r 12(1)	varied by 50/2015 r 7(1)	28.5.2015	
	varied by 223/2016 r 4(1)	8.9.2016	
	varied by 223/2018 r 4(1)—(3)	25.10.2018	
	amended by 2/2024 r 7(1), (2)	1.3.2024	
r 12(2)	varied by 50/2015 r 7(2)	28.5.2015	
	varied by 223/2016 r 4(2)	8.9.2016	
	varied by 223/2018 r 4(4)	25.10.2018	
	amended by 2/2024 r 7(3)	1.3.2024	
r 12A	inserted by 186/2019 r 4	11.7.2019	
	substituted by 2/2024 r 8	1.3.2024	
r 14			
r 14(2)	varied by 15/2015 r 5	29.3.2015	
r 15	substituted by 15/2015 r 6	29.3.2015	
r 15(1)	varied by 46/2015 r 4	14.5.2015	
Sch 1	varied by 50/2015 r 8(1)—(3)	28.5.2015	
	substituted by 2/2024 r 9	1.3.2024	
Sch 2	substituted by 15/2015 r 7	29.3.2015	
Sch 3	inserted by 50/2015 r 9	28.5.2015	
Historical versions
29.3.2015		
14.5.2015		
28.5.2015		
8.9.2016		
25.10.2018		
11.7.2019