The information on this page relates specifically to advance care planning laws in Western Australia. Find out how to create your plan in Western Australia.
Law and policy in Australia and Western Australia
All states and territories have law and/or policy related to advance care planning to support person-centred medical treatment decision-making and advance care directives.
In Western Australia, both statutory and common law advance care directives exist and are legally binding. These can include a person’s values, preferences for future treatment (consent to, refusal of and/or withdrawal of treatment) and appointment of a substitute decision-maker. They should be completed and signed by a competent adult. Preferably, they should be stored and accessed via My Health Record.
In Western Australia, a person with decision-making capacity can:
- appoint an enduring guardian(s)
- complete an instructional and/or values advance care directive
An advance care directive and the role of the substitute decision-maker comes into effect when the person loses decision-making capacity.
A substitute decision-maker can make medical treatment decisions on behalf of a non-competent person.
In Western Australia, the substitute decision-maker can be:
- chosen and appointed by the individual as an enduring guardian(s)
- a guardian appointed by the State Administrative Tribunal as a plenary guardian or a limited guardian
- a person with a close and continuing relationship with the individual (person responsible), chosen in the order according to the Hierarchy of treatment decision-makers:
- The person’s spouse or de facto partner
- Nearest relative (adult child)
- Nearest relative (parent)
- Nearest relative (adult sibling)
- Primary provider of (unpaid) care and support
- An adult who maintains a close personal relationship with the patient
An appointment by the State Administrative Tribunal overrides all other appointments.
Appointing an enduring guardian
An enduring guardian(s) appointment should be on the recommended Enduring Power of Guardianship form or similar. It must be written in English, contain details of the appointer and person(s) being appointed.
The person(s) being appointed must sign that they accept the appointment. Document signing must be witnessed by two adults; one of whom is authorised to witness statutory declarations under the Oaths, Affidavits and Statutory Declarations Act 2005. Neither witness can be the person making the directive or signing it on behalf of the person making it.
More than one person can be appointed as an enduring guardian but they must act jointly and reach agreement on any decisions they make.
The enduring guardian(s) can consent to, refuse or withdraw treatment on behalf of the person. They must act in accordance with any lawful limitations or conditions contained in the form. They must make the decision they believe the person would make (i.e. substituted judgement).
Advance Health Directives
Only people with decision-making capacity can complete an Advance Health Directive. An Advance Health Directive should be on the recommended Advance Health Directive form or similar.
It must be written in English, include the person’s full name, date of birth, address, and be signed.
The Advance Health Directive must be signed by the person in front of two adult witnesses; one of whom is authorised to witness statutory declarations under the Oaths, Affidavits and Statutory Declarations Act 2005. Neither witness can be the person making the directive or signing it on behalf of the person making it. Witnesses must certify that the person completing the directive or making the appointment has decision-making capacity, and that they acted freely and voluntarily.
Any directive that does not meet the requirements of an Advance Health Directive, is considered a non-statutory advance care directive. This includes the Values and Preferences Form: Planning for my future care.
The role of advance care directives when making medical treatment decisions
Advance care directives in Western Australia include Advance Health Directives and the Enduring Power of Guardianship documents.
Any person with decision-making capacity is able to make their own decisions, including decisions related to life-saving treatment. All adults are presumed to have capacity unless there is evidence to suggest otherwise.
Consent must be obtained before any treatment is provided, withheld or withdrawn. If a person does not have decision-making capacity, all reasonable efforts must be made to locate an advance care directive and identify an enduring guardian(s). The only exception to this is when emergency treatment is required and an advance care directive or enduring guardian(s) is not available.
If there is an advance care directive refusing medical treatment, a health practitioner cannot provide treatment. An enduring guardian(s) cannot override a valid advance care directive.
If the person has not completed an advance care directive, the enduring guardian(s) is required to provide informed consent before treatment is provided. The enduring guardian(s) and the health practitioner must consider any information included in non-statutory advance care directives such as a Values and Preferences Form but it is the enduring guardian(s) who is required to make the decision.
If an advance care directive or enduring guardian(s) cannot be located, the Act outlines a process for proceeding. Steps vary depending on whether the treatment is urgent or not. Information is available from the Office of the Public Advocate.
Changes and revocation
An Advance Health Directive ends when a new Advance Health Directive is completed, a person with capacity revokes their Advance Health Directive, or it expires (if an expiry date is included), or the person who made the directive dies. A previous Advance Health Directive can be revoked when a person completes a new Advance Health Directive and ticks the ‘revoke previous version’ tick box on the front page.
An enduring guardian(s) appointment ends if a person with capacity revokes the appointment of their enduring guardian(s), if all people appointed are unable to act, or if the person who made the appointment dies. The person(s) appointed as enduring guardian(s) can also resign from their appointment.
Under certain circumstances the State Administrative Tribunal can cancel an Advance Health Directive or an enduring guardian appointment.
Advance care planning in the context of mental health
For people with mental illness who maintain decision-making capacity, advance care planning occurs in the same way as for everyone else. An advance care directive can include preferences relating to mental health treatment and therefore they receive treatments under the same laws.
Advance care directives for people less than 18 years old
Children can do advance care planning and document their preferences, however, there is no advance care directive legislation pertaining to a person less than 18 years of age and they are not legally binding. A person less than 18 years old cannot appoint an enduring guardian.
Applicability in other states and territories
In general, a valid Western Australia Advance Health Directive will apply in other states and territories in Australia, although there may be some limitations and additional requirements. It may be recognised under common law.
Similarly, an appointment of an enduring guardian will usually apply, but there is variation in the laws within Australia. It is recommended that a person obtain specific advice from the Office of the Public Advocate or equivalent in the relevant state or territory.
If a person is permanently moving state or territory, it is recommended that they update their documentation using the recommended form(s) for their new location.
Advance care directives from other states and territories
In general, valid advance care directives made in other Australian jurisdictions that correspond sufficiently in form and effect to an Advance Health Directive, and where the State Administrative Tribunal has made a declaration of validity, will be recognised in Western Australia.
Valid interstate appointments of a substitute decision-maker(s) are also recognised.