Assisted dying in New Zealand: who can ask, how it works — and the one thing you cannot plan in advance

Published by Ross Holmes Lawyers (RHL)

‍Since the End of Life Choice Act 2019 came into force on 7 November 2021, New Zealanders with a terminal illness have had the lawful option of asking for medical help to end their lives. It is a difficult subject, and a deeply personal one. This article explains, in plain terms, who is eligible, how the process works, and — importantly for anyone thinking about their future care — the one part of it that you cannot arrange in advance.

‍ ‍That last point matters more than most people realise, and it is where good legal planning meets its limits.

What the law allows

‍Assisted dying is governed entirely by the End of Life Choice Act 2019, which is administered by Manatū Hauora — the Ministry of Health. The Act’s purpose is narrow and carefully fenced: to give people with a terminal illness, who meet strict criteria, the option of lawfully requesting medication to end their lives, with safeguards to ensure the choice is genuinely their own and free from pressure.

“Assisted dying” means a medication, taken by you or given to you by a medical or nurse practitioner, that ends your life to relieve suffering. It is a regulated medical process — not something you arrange privately.‍ ‍

Who is eligible

‍To be eligible, you must meet all of the following:‍ ‍

•     be aged 18 or older;

•     be a New Zealand citizen or permanent resident;

•     suffer from a terminal illness likely to end your life within 6 months;

•     be in an advanced state of irreversible decline in physical capability;

•     experience unbearable suffering that cannot be relieved in a manner you consider tolerable; and

•     be competent to make an informed decision about assisted dying.

The Act is equally clear about who does not qualify. You are not eligible because of advanced age alone, a mental disorder or mental illness alone, or a disability alone. None of those, on its own, is a basis for assisted dying.

How the process works

1. You have to raise it first. The law deliberately puts the first step in your hands. A health practitioner is prohibited from suggesting assisted dying to you — they cannot raise it as an option. You must bring it up yourself with a doctor or nurse, or, if your own doctor objects or cannot help, you can contact the Assisted Dying Service directly on 0800 223 852.

2. Two independent assessments. Your attending medical practitioner (or nurse practitioner) assesses whether you meet every criterion, discusses your other end-of-life options, and encourages you to talk with your family or whānau. A second, independent medical practitioner then assesses you as well. If either has any doubt about your competence to decide, a psychiatrist must give a third opinion.

3. You must stay competent — right to the end. This is the crucial part. You must remain competent to make an informed decision at every stage, including at the very moment the medication is administered. The practitioner must be satisfied of that immediately beforehand.

4. You can stop at any time. You may pause, delay, or change your mind at any point, for any reason. Choosing the method and the timing remains yours, and a decision to proceed is never final until the final moment.

The one thing you cannot plan in advance

Here is the point that surprises many people, and the one most relevant to estate and incapacity planning: assisted dying cannot be arranged ahead of time, and no one can request it for you.

Because the Act requires you to be competent throughout — and to actively consent at the moment of administration — two common planning tools simply do not reach it:‍ ‍

•     An advance directive (or Advance Healthcare Directive) cannot be used to request assisted dying. You cannot record, while you are well, an instruction that you wish to receive assisted dying later if you lose capacity. The Act does not recognise that kind of advance instruction. If you lose your mental faculties — through advanced dementia, for example — assisted dying is no longer available to you, regardless of what you wrote or wished earlier.

•     Your enduring power of attorney cannot do it for you. An attorney appointed under an enduring power of attorney for personal care and welfare — or a welfare guardian — has no power to request assisted dying on your behalf, and cannot complete or sign the assisted-dying paperwork with your medical practitioner. The decision, by law, must be yours and yours alone, made while you are competent.

This is not an oversight. It is one of the Act’s central safeguards: it ensures assisted dying only ever happens for a person who is, at the time, able to ask for it and consent to it without pressure.

What you can plan — and where we can help

‍The limitation above does not mean advance planning is pointless. Far from it. The same documents that cannot request assisted dying remain powerful for everything else about your care:

•     An Advance Healthcare Directive can still record your wishes to refuse particular treatment in the future — for example, declining resuscitation or certain interventions. That is a different, and lawful, kind of advance decision.

•     An enduring power of attorney for personal care and welfare lets a trusted person make a wide range of care and treatment decisions for you if you lose capacity — just not assisted dying.

•     An enduring power of attorney for property, an up-to-date will, and a clear overall plan ensure your affairs and your voice are protected when you can no longer speak for yourself.

Getting these in place while you are well is the best way to keep control of your future care. We can help you prepare and review all of them, and explain exactly where each one’s authority begins and ends.

Where to get information and support

•     Assisted Dying Service (Health New Zealand): phone 0800 223 852, or read Health New Zealand’s assisted dying information.

•     Manatū Hauora — Ministry of Health: assisted dying and the End of Life Choice Act.

•     Healthify He Puna Waiora: plain-language overview of assisted dying.

•     The legislation itself: End of Life Choice Act 2019.

•     This is a sensitive topic. If you are finding it hard, you can free call or text 1737 any time to talk with a trained counsellor.

One change to watch

The law is settled for now, but it may not stay that way. Following the Ministry of Health’s first statutory review in 2024, the Government chose not to amend the Act, but a member’s bill before Parliament proposes, among other changes, removing the six-month prognosis requirement. If it progresses, eligibility could widen. For now, the six-month criterion and the other requirements above continue to apply.

Thinking about your future care? RHL can prepare and review your Advance Healthcare Directive, enduring powers of attorney, and will, and walk you through what each one can and cannot do. Get in touch.

This article is general information only and is not legal, medical or health advice. Your situation is unique; please obtain specific advice before acting, and speak with your medical team and the Assisted Dying Service about any health decision.