This page provides a plain-English overview of the legal processes involved in planning ahead, as well as links to local information. To get advice about your individual circumstances it is recommended that you consult with one of the agencies referred to below or a legal practitioner.
Apart from appointing a substitute decision-maker, how else can I document my wishes?
- While having conversations about your wishes is crucial, it is strongly recommended that you also document your wishes in at least one of the ways outlined below. This will avoid situations such as the person(s) you have spoken with not quite remembering what you had said, the person not being available when decisions need to be made or the person not relaying your views if they were not really in agreement with them.
- As the first two options below have a clear legal basis in Western Australian legislation, it is recommended that you explore these options first.
Complete an Advance Health Directive
- This is a written document that has a clear legal basis in legislation under the Acts Amendment (Consent to Medical Treatment) Act 2008.
- You can give, or withhold, consent for medical or surgical treatment, including dental treatment, a life-sustaining measure, palliative care or other healthcare.
- Your Advance Health Directive will be used only if you lack capacity to make a treatment decision yourself.
- If you cannot make a treatment decision in the future, instructions in your Advance Health Directive will take priority over other people making decisions on your behalf.
- It is important to discuss your decisions with others – such as your GP – because your Advance Health Directive may be considered invalid if it is thought that you did not understand the consequences of your directive at the time you were writing it.
- You should also review your Advance Health Directive regularly because it may not be considered valid if circumstances relevant to your own treatment decision have changed and you could not have anticipated these changes when you originally wrote it e.g. new treatments becoming available for your condition.
Include instructions in the appointment of an enduring guardian
- Under an Enduring Power of Guardianship appointment, the form allows you to give directions about how the Enduring Guardian(s) should perform their functions.
Make a written statement of your wishes other than in an Advance Health Directive
- This may be a general statement of your values, wishes and preferences. It may also include directions about whether you would or would not consent to specific treatments in particular circumstances.
- Documents for this purpose can be found from a range of programs - including the worksheets on this website and other programs listed on this site.
- This type of document is often referred to as a ‘common law directive’ because it potentially has a legal basis in common law (law decided by courts rather than legislation).
- A common law directive written by you needs to be used to guide anyone who has to make decisions on your behalf.
- There are different opinions about the degree to which common law directives are legally binding, and there have been no court findings in Western Australia to give clear guidance on this.
- If you choose to make a common law directive, it is strongly recommended that you use one of the forms developed for this purpose and that you have the form witnessed. This will increase the likelihood that your directive will be accepted and acted on if the need arises.
Whatever type of documents you make, it is vital to give copies to people who may have to make decisions for you in the future and to make sure they understand how you want them to use these documents.
Links to local resources
To find out more about Advance Health Directive from the Department of Health, click here.