When a person has completed an advance care directive form, they must sign it in the presence of a suitable witness [Advance Care Directives Act 2013 (SA) s 15(1)(a); Advance Care Directives Regulations 2014 (SA) reg 7(1)].

When a substitute decision-maker is being appointed

If the person is appointing 1 or more substitute decision-makers under their advance care directive, then the advance care directive must not be witnessed until each substitute decision-maker appointed has completed and signed the relevant part of the form [regs 7(1)(a), 8(1)]. The signatures of the substitute decision-makers do not need to be witnessed.

Suitable witnesses

A suitable witness must be:

The Advance Care Directives Regulations 2014 now prescribe health practitioners, Justices of the Peace, legal practitioners, social workers, police officers and teachers as suitable witnesses. The Advance Care Directives (Miscellaneous) Amendment Regulations 2024 (SA) removed a number of classes of persons from this list, with effect from 1 March 2024. An advance care directive made before that date and witnessed by someone no longer on the list of suitable witnesses is nevertheless valid (assuming it otherwise complies with the Act and Regulations).

Witness obligations

Before the person making the advance care directive signs the form, the witness must give the person an advance care directive information statement [s 15(1)(b)(i); reg 7(2)]. This statement is available online and in the DIY Kit accessible via the Advance Care Directives Website.

The witness must also explain to the person the legal effects of giving an advance care directive [s 15(1)(b)(ii)]. While simply giving the person an advance care directive information statement is taken to be an explanation of the legal effects of the document [reg 7(2)], the witness must be satisfied that the person understands the information and explanation [s 15(1)(b)(iii)]. A witness should have a conversation with the person about the proposed advance care directive to ensure that the person understands the nature and effects of the document.

If a witness has any doubt about the person’s ability to understand the nature and effects of the advance care directive, they should not sign the form. The witness may suggest that the person obtains legal advice to have the advance care directive further explained. Alternatively, if it is a question of the person’s ability to understand the document, the witness may request the person obtains a medical certificate indicating they are competent to make the advance care directive.

The witness must also be of the opinion that the person does not appear to be acting under any form of duress or coercion [s 15(1)(b)(iv)]. Again, the witness should have a conversation with the person to be sure. A person may act under duress or coercion that exists solely due to a perception or mistake on their own part [s 15(3)]. If the witness has any doubts, they should not sign the form.

Making an advance care directive revokes any previous advance care directive [s 17]. A witness should ask the person whether they have previously made an advance care directive and be satisfied that the person understands the consequences of revoking the existing advance care directive [s 29(1)]. See: Changing or revoking an advance care directive.

Conflict of interest

A person cannot witness an advance care directive if they [s 15(2)]:

When a person's first language is not English

An advance care directive form must be completed in English [s 14(1)(c)]. However, a person for whom English is not their first language may give an advance care directive with the assistance of an interpreter in accordance with s 14 of the Advance Care Directives Act 2013 [s 14(1)(a)].

If an interpreter is used, the interpreter must

A person who is a suitable witness in relation to a particular advance care directive may act as an interpreter for the person giving the directive [s 14].

From 1 March 2024, amendments to s 14 of the Advance Care Directives Act 2013 (SA) will clarify that interpreters must not: