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Future medical and other health decisions

Future medical and other health decisions

I am worried about becoming unable to make decisions about my medical treatment in the future. What are my options?

While you still have legal capacity you can consider:

  • making an Advance Health Directive, and/or
  • appointing an enduring guardian

Both of these ways give you a chance to plan for your medical and health treatment if you can't make treatment decisions for yourself sometime in the future. You can do both.

Be careful who you appoint as an enduring guardian as there is the potential for the power to be abused. You should get independent legal advice so that you understand the risks you are taking in appointing an enduring guardian and what you need in your situation.

A pamphlet Your choices to: make and Advance Health Directive and appoint an Enduring Guardian can be downloaded from the Office of the Public Advocate website. It is also available in audio format.

What is legal capacity?

An adult has legal capacity if they can understand the nature and effect of any decisions they make and make reasoned decisions for themselves.

What are some situations where someone may not have legal capacity?

Some examples of situations where a person may not have legal capacity include if they are in a coma or have dementia.

You could lose capacity permanently, for example, with dementia, or temporarily, for example, if you are unconscious after a car accident.

What is an Advance Health Directive (AHD)?

An Advance Health Directive is a legal document in which you, as an adult, can let people know in writing your decisions about future treatment. You can specify situations where you wish to give consent or refuse consent to future treatment.

For detailed information on AHDs go to the Department of Health website. This information is translated into several languages other than English. Also see the booklet Preparing an Advance Health Directive available from the Department of Health WA.

Information is also provided on the Office of the Public Advocate website including about the benefits of an AHD,  how to make an AHD, and FAQs.

What is a "living will"?

Some people refer to Advance Health Directives as a "living will".

Do I have to go to court to get an Advance Health Directive?

No. You just have to complete the form and have it witnessed as indicated on the form.

Can I change my Advance Health Directive?

Yes when you have full legal capacity you can change your AHD or withdraw it. If you change it you should complete a new form and destroy all copies of the old one.

Who should I consult before making an Advance Health Directive?

You do not have to get medical and/or legal advice before making an AHD. However you should get legal advice and/or medical advice before making one. You may also find it useful to discuss this with your family as the AHD, if it applies, will override the medical decisions of family members for you.

You should also review it regularly.

What is an enduring guardian?

An enduring guardian is someone you appoint to make personal and lifestyle decisions for you if you lose the capacity to make these decisions for yourself. You can include medical decisions or have these covered by an AHD.

You can decide what sort of decisions you want your guardian to make. You can make the enduring power of guardianship wide, for example, to allow your guardian to make all medical and lifestyle decisions for you, or you can make it more limited and given them the power to just make certain decisions.

How is an enduring guardian appointed?

An enduring guardian is appointed through a legal document called an enduring power of guardianship. This document allows you to nominate one or more people to be authorised to make decisions for you.

There are legal requirements that have to be followed for the document to be valid. Go to the Office of the Public Advocate website for more information including a guide, a kit and an information sheet on enduring power of guardianship, or telephone (08) 9278 7300 or 1300 858 455

When does an enduring power of guardianship come into effect?

An enduring power of guardianship will only come into effect if you lose the capacity to make reasoned decisions for yourself. Your enduring guardian would have the authority to make decisions for you in accordance with what is in the legal document.

How is an enduring power of guardianship different to an enduring power of attorney?

An enduring power of guardianship only comes into operation when you lose legal capacity and it can permit an attorney to make personal and lifestyle decisions including about medical treatment.

An enduring power of attorney allows the attorney to only make decisions about the donor's financial affairs and property. Also it can state that it is to operate before you lose legal capacity.

What if I leave it too late and lose legal capacity before I appoint an enduring guardian or make an Advance Health Directive? What will happen? Who will make decisions for me?

The law allows certain people to make decisions about your treatment.  For information on who can make treatment decisions go to the Office of the Public Advocate website.

In some treatment-related circumstances an application for a guardianship order may need to be made to the State Administrative Tribunal. For more information see Guardianship and Administration.

What is a guardian?

A guardian has legal authority to make personal and lifestyle decisions for someone unable to make the decisions for themselves. These decisions can be about work, living arrangements or medical treatment.

What if there is a dispute about an enduring power of guardianship?

A person who the State Administrative Tribunal (SAT) decides has a proper interest in the matter can apply to the SAT for a decision.

The SAT is able to decide if the maker of the enduring power of guardianship has become unable to make decisions and therefore the power of guardianship starts operating.

The SAT is also able to make a decision about whether an enduring power of guardianship is valid, or what its terms mean, or discharge guardians if they want to be discharged, or have been found guilty of neglect or their duties. It can also end or change the enduring power of guardianship.

What if there is a dispute about who can make a treatment decision?

A person who the State Administrative Tribunal (SAT) decides has a proper interest in the matter can apply to the SAT for a decision.

Who is the Public Advocate?

The Public Advocate is an independent statutory officer appointed under the Guardianship and Administration Act 1990 (WA) to promote and protect the rights of adults with decision-making disabilities. The Office of the Public Advocate can provide information and advice.

Where can I get more information?

  • Contact the Citizens Advice Bureau on (08) 9221 5711 for help with drafting an enduring power of guardianship (a small fee applies) and to access a fact sheet on Enduring Power of Guardianship.  
  • Contact the State Administrative Tribunal on (08) 9219 3111 or 1300 306 017 for more information about making applications to challenge or seek clarification about Advance Health Directives or an enduring power of guardianship. 
  • Visit the Australian Centre for Health Research website End of Life Law in Australia. It is designed to be used by patients, families, health and legal practitioners, the media, policymakers and the broader community to access information about Australian laws relating to death, dying and decision-making at the end of life. The website has information about a range of topics including: advance health directives, stopping treatment, palliative care, organ donation, and euthanasia and assisted dying.
  • Click here to go to the Aboriginal and Torres Strait Islander Discussion Starter about end of life care specifically designed for Aboriginal and Torres Strait Islander people.

 

Last reviewed: 21/10/2016

Last modified:

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.