Wills and estates
Advance health directives in Western Australia
An Advance Health Directive is a document made under the Guardianship and Administration Act 1990 (WA) recording your consent to, or refusal of, specified future medical treatment. It operates only if you later cannot make a reasoned judgment about that treatment. It differs from an enduring power of guardianship, which appoints a person, and from an enduring power of attorney, which covers money and property only.
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What is an advance health directive in Western Australia and how is it different from an enduring power of guardianship?
An Advance Health Directive lets an adult with full legal capacity record decisions to consent to or refuse specified future medical treatment. It takes effect only when the person cannot make a reasoned judgment about that treatment. An enduring power of guardianship instead appoints a person to make personal and treatment decisions. Where both exist, the directive sits at the top of the hierarchy of treatment decision-makers.
- Made under the Guardianship and Administration Act 1990 (WA).
- You must be at least 18 and have full legal capacity to make one.
- Two witnesses aged over 18 are required, one of whom is authorised to take declarations, such as a Justice of the Peace.
- It operates only when you cannot make a reasoned judgment about the treatment it covers.
- It sits above an enduring guardian in the hierarchy of treatment decision-makers.
- An enduring power of attorney is a separate document covering money and property, not medical treatment.
Jurisdiction: Western Australia.
What an advance health directive actually is
An Advance Health Directive is a formal document, made under the Guardianship and Administration Act 1990 (WA), in which an adult with full legal capacity sets out decisions to consent to, or to refuse, specified future treatment. It is sometimes called a living will. The distinguishing feature is that it records your own decisions rather than appointing someone else to decide for you - which is why it carries the weight it does when the time comes.
Three documents that are constantly confused
An advance health directive, an enduring power of guardianship and an enduring power of attorney do different jobs, and having one does not give you the protection of the others.
- Advance health directive - records your own decisions about specified future treatment.
- Enduring power of guardianship - appoints an enduring guardian to make personal, lifestyle and treatment decisions for matters your directive does not cover.
- Enduring power of attorney - appoints someone to deal with money and property. It does not extend to medical or personal decisions at all.
Who can make one, and the formalities
The Office of the Public Advocate states that you must be at least 18 years of age and have full legal capacity, meaning you understand the nature and effect of the directive you are making. The directive is made in the prescribed form published by the Department of Health. It must be witnessed by two people aged over 18, one of whom is authorised to take declarations - a Justice of the Peace, for example. Getting the formalities right is not a technicality: a directive that is defective is a directive your treating team may not be able to rely on at the moment it matters.
When it takes effect
A directive comes into effect only if it applies to the treatment you require, and only if you are unable to make a reasoned judgment about that treatment decision at the time it is needed. While you retain capacity for a decision, you make it yourself and the directive is not engaged. It also has nothing to say about treatment it does not address, which is one of the reasons an enduring power of guardianship is a sensible companion document.
When a treatment decision can be disregarded
A directive is intended to bind the treating team for what it covers, but it is not absolute. A health professional may decline to follow it where circumstances exist or have arisen that you would not reasonably have anticipated when you made it, or that would cause a reasonable person to reconsider the decision - a materially changed diagnosis, or a treatment option that did not exist when you signed. There is also a specific exception permitting urgent treatment where a health professional reasonably suspects the person has attempted suicide. The State Administrative Tribunal can make declarations about whether a directive is valid, whether the maker had capacity, and whether it has been revoked.
How it works alongside an enduring power of guardianship
The two documents sit together rather than competing. The Office of the Public Advocate describes the advance health directive as sitting at the top of the hierarchy of treatment decision-makers, so an enduring guardian cannot displace a treatment decision you have already made in a valid directive. The guardian's role is the ground your directive does not cover - which, in practice, is most of it. Making both gives your treating team a decision for the situations you anticipated, and a decision-maker for the ones you did not.
What to do once it is signed
A directive nobody can find is a directive nobody follows. Keep the original somewhere safe and give clear copies to your general practitioner so it goes on your medical file, to close family, and to your enduring guardian if you have appointed one. If you have an ongoing condition, give a copy to the treating specialist as well. Consider carrying a note of where the original is held, which matters most if you are admitted somewhere away from your usual treating team.
Reviewing it
Health, relationships and treatment options all change. Review the directive periodically and after any significant change in your health, and if your wishes change, make a fresh directive with the same formalities rather than annotating the existing document. An amended or ambiguous directive is a directive that invites argument at exactly the wrong moment.
Process
- 1
Initial consultation to talk through your wishes and to explain how a directive, an enduring power of guardianship and an enduring power of attorney differ.
- 2
Discussion of the specific treatment decisions you want recorded, and of any appointments you want to make alongside them.
- 3
Preparation of the directive in the prescribed form, together with an enduring power of guardianship or attorney if instructed.
- 4
Arranging witnessing that meets the requirements, including a witness authorised to take declarations.
- 5
Advice on distributing copies to your general practitioner, specialists and family, and on storing the original.
- 6
Review on request, or when your circumstances change.
What to prepare
- Photo identification.
- Any existing directive, enduring power of guardianship or enduring power of attorney.
- Your general practitioner's details, and those of any treating specialist.
- Details of anyone you wish to appoint as enduring guardian.
- An outline of the treatment decisions you want recorded.
- Relevant diagnoses or medical information bearing on those decisions.
- Contact details for the family members who should hold copies.
Risks, deadlines and common mistakes
- Informal or ambiguous wording instead of the prescribed form, leaving treating staff uncertain what you decided.
- Witnessing that does not meet the requirements, including the absence of a witness authorised to take declarations.
- A directive that is years out of date and no longer reflects your diagnosis or the available treatment.
- Nobody knowing the directive exists, so it is not produced when it is needed.
- Assuming an enduring power of attorney covers medical decisions. It does not.
Fees and scope
We discuss your circumstances at an initial consultation and, once the scope is clear - a directive alone, or a directive together with an enduring power of guardianship or attorney - quote a fixed fee for preparing and finalising the documents. The fee is confirmed before drafting begins.
COMMON QUESTIONS
Frequently asked questions
What is the difference between an advance health directive and an enduring power of guardianship?+
A directive records your own decisions about specified treatment. An enduring power of guardianship appoints a person to make personal and treatment decisions for the matters your directive does not cover. Many people make both, because each covers what the other cannot.
Does a directive cover my finances?+
No. It deals only with medical and health care decisions. Money and property are dealt with by an enduring power of attorney, which is a separate document.
Who can witness it?+
Two people aged over 18, one of whom is authorised to take declarations - a Justice of the Peace, for example.
When does it start operating?+
Only when it applies to the treatment you require and you are unable to make a reasoned judgment about that decision. While you have capacity for the decision, you make it yourself.
Can a doctor decline to follow it?+
In limited circumstances, yes - where circumstances have arisen that you would not reasonably have anticipated, or that would cause a reasonable person to reconsider. There is also a specific exception for urgent treatment where a health professional reasonably suspects a suicide attempt. Disputes about validity can go to the State Administrative Tribunal.
Can I have both a directive and an enduring power of guardianship?+
Yes, and it is usually the sensible course. Where they overlap on a specific treatment, the directive sits at the top of the hierarchy of treatment decision-makers.
Do I need a lawyer to make one?+
It is not a strict requirement. Advice helps where the wording needs to be unambiguous, where the directive has to work alongside an enduring power of guardianship or attorney, or where a diagnosis makes the decisions consequential rather than hypothetical.
What do I do with it once it is signed?+
Keep the original safe and give copies to your general practitioner for your medical file, to close family, and to your enduring guardian. Review it after any significant change in your health.