Making medical decisions

If you are an adult, you have legal capacity to make decisions about your own medical care and treatment (including refusing treatment) if you can understand the nature and effect of any decisions you make and can make reasonable decisions for yourself.

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 future medical and health treatment, in case you cannot give informed consent at that time, you can:

  • make an Advance Health Directive
  • appoint an enduring guardian.
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Find out:

  • how an Advance Health Directive works
  • what an enduring guardian does
  • what can happen if you haven't planned for your future medical decisions, and
  • where to get information about voluntary assisted dying.

What is an Advance Health Directive?

An Advance Health Directive is a legal document which lets you say what you want to happen with your future medical treatment. For example, you might say whether or not you want full medical treatment if you become very unwell or injured.

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, 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 guardian is given this authority 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 some 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 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 very 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
Department of Health - Healthy WA

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

Other sites

 

Reviewed: 30 August 2022

Elder Rights WA

Find out about our specialist service dedicated to safeguarding the rights of older Western Australians and preventing elder abuse.

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.