Making medical decisions

An adult has legal capacity to make decisions about their own medical care and treatment (including refusing treatment) if they can understand the nature and effect of any decisions they make, and can make reasonable decisions for themselves. 

In some cases, you might not have the ability to make decisions about your medical treatment. This could be temporary (for example, if you are unconscious after an accident or in a coma) or more long-lasting (for example, due to dementia or mental illness).

To plan for your medical and health treatment, in case you cannot give informed consent in the future, you can:

  • make an Advance Health Directive
  • appoint an enduring guardian.

Find out:

  • how an Advance Health Directive works
  • what an enduring guardian does, and
  • what can happen if you haven't planned for your future medical decisions.

What is an Advance Health Directive?

An Advance Health Directive is a legal document which lets you say what you want to happen to you. For example, you might decide to consent to or refuse future medical treatment in certain situations. You must be an adult with full legal capacity to make an Advance Health Directive.

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. 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 guardian is appointed using a legal document called an enduring power of guardianship. This document allows you to choose one or more people to make lifestyle decisions for you. You have the option of allowing your enduring guardian to make medical decisions for you in case you lose capacity.

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

If you have not made an Advance Health Directive or appointed an enduring guardian, the law allows certain people to make decisions about your treatment. This includes your spouse 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 maintained 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.

 

Get help

Legal Aid WA does not provide advice in this area.

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

The eCourts Portal of Western Australia has a very useful section on guardianship and administration. This information is from the State Administrative Tribunal about a range of topics related to decision making and the options available for people who may no longer be able to make reasonable decisions for themselves. This includes the forms and kits you may need, as well as the ability to lodge an application with the State Administrative Tribunal.

More information

Office of the Public Advocate
Department of Health - Healthy WA

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

Other sites

 

Reviewed: 25 May 2018

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.