Making medical decisions

What is an Advance Health Directive?

An Advance Health Directive is a legal document that allows you to set out the medical treatment and health care you do or do not want in the future. It only applies at times when you cannot make your own decisions about your medical treatment or health care, or you cannot communicate those decisions. You must be an adult with full legal capacity to make an Advance Health Directive.

Doctors and other health professionals must follow the treatment decisions you have set out in your Advance Health Directive (with limited exceptions).

If you do not have an Advance Health Directive or guardian and become unable to make medical treatment or health care decisions for yourself, the law sets out who will be asked to make treatment decisions for you. This includes your husband, wife, or de facto partner, children, parents, siblings, unpaid carers, and close friends.

What is an enduring guardian?

An enduring guardian is someone you appoint, or authorise, to make personal and lifestyle decisions for you if you lose the capacity to make these decisions for yourself. It is similar to guardianship, except the decision of who to appoint is made in advance, by you, when you have legal capacity. 

An enduring power of guardianship is a legal document that allows you to choose a trusted person (or persons) called a 'guardian', to make decisions about your personal and lifestyle matters and medical treatment when you are no longer capable of making these decisions for yourself.

Unlike an enduring power of attorney, an enduring power of guardianship only applies at times when you are unable to make reasonable decisions for yourself about personal and lifestyle matters, and medical treatment.

When making an enduring power of guardianship you must decide whether you want to give your guardian(s)

• full (known as plenary) powers to make any personal, lifestyle or medical decision for you, or
• whether you want to limit their powers so that they may only make certain decisions for you.

For example, you might decide to only give your guardian(s) the authority to make decisions about:

• where and with whom you live and who you spend time with; and
• what medical treatment or supports and services you receive.

Can I use both options?

Yes, you can.

For example, you might make an Advance Health Directive to cover what to do in certain situations, but also appoint someone as your enduring guardian to make medical decisions in situations you did not expect could happen, or about things that are not covered by your Advance Health Directive.

If your Advance Health Directive applies to the medical decision, it will be followed instead of asking for a decision from an enduring guardian.

What are the risks in making an enduring power of guardianship?

It is important that you properly consider who you wish to be your guardian because they will have broad powers, and sometimes those powers are abused.

It is important that the people you choose are trustworthy and reliable as they will be able to make decisions for you, at times when you are not capable of making those decisions yourself. You should choose someone who understands your values and preferences, and who will make decisions in your best interests.

What should I do with the enduring power of guardianship and Advance Health Directive documents?

If you decide to make any of these legal documents, it is important to keep the originals in a safe place and to give a copy to relevant people and organisations. For example, you should give a copy of your enduring power of guardianship and Advance Health Directive to your nominated guardian(s), your GP, and any care provider(s).

What will happen if I haven't planned for my future medical decisions?

If you have not made an Advance Health Directive or authorised someone to be your enduring guardian, the law allows certain people to make decisions about your treatment. This includes your husband or wife, or de facto partner, children, parents, siblings, unpaid carers, and close friends. 

To make decisions for you, they must be over 18, have full legal capacity, be willing to make the decisions, and have kept up a close personal relationship with you.

In some circumstances, an application may need to be made to the State Administrative Tribunal to appoint a guardian to make medical decisions for you.

What if I want to get medical help to die?

Voluntary assisted dying is about asking for medical help to end your life if you have a disease or illness that is so severe it is going to lead to your death and your suffering cannot be relieved in a way that makes your life bearable. If you are eligible you can legally access the medication you need to end your life.  

Voluntary assisted dying (VAD) is a choice available to eligible people in WA under the Voluntary Assisted Dying Act 2019  (WA). The rules around who is eligible are strict. Some, but not all of them, are set out here.

‘Voluntary’ means you must make this choice yourself. No one else can make it for you or put pressure on you to make this choice.

If you lose the ability to make decisions for yourself, you cannot ask for voluntary assisted dying.

You cannot make a request for voluntary assisted dying in your Advance Health Directive.

More information about the rules and who you can talk to about voluntary assisted dying, can be found on the Department of Health website.

Get help

Legal Aid WA's Elder Rights WA can assist with planning for the future.

The Citizens Advice Bureau may be able to help you draft an enduring power of guardianship (a small fee applies). 

The State Administrative Tribunal website has a useful section on guardianship and administration. There is information about a range of topics on decision making and the options available for people who may no longer be able to make reasonable decisions for themselves. It also links to the eCourts Portal of Western Australia where you can make and lodge an online application to the State Administrative Tribunal. You must register to lodge an application online.

More information

Office of the Public Advocate

• Advance Health Directives 
  Information on why to make an Advance Health Directive, including an information sheet and brochures.

• Enduring Power of Guardianship
  Information on how and why to appoint an enduring guardian, including forms, information sheets and brochures.

Department of Health - Healthy WA

Resources and information on Advance Health Directives, including the form you can use, and voluntary assisted dying.

• Advance Health Directives
• A Guide to Making an Advance Health Directive: A Guide to Making an Advance Health Directive in Western Australia (healthywa.wa.gov.au)
• Voluntary assisted dying.

Other sites

• Aboriginal and Torres Strait Islander Discussion Starter 
  A resource about end-of-life care specifically designed for Aboriginal and Torres Strait Islanders.

Reviewed: 2 May 2024