Advance Care / Health Directives

Advance Care Directives (in Victoria) or Advance Health Directive (in Western Australia) are legal documents which set out instructions relating to your future health care. They enable you to:

• express your values and preferences for your medical treatment;
• give binding instructions about your future health care, including the treatment(s) you would want, or not want, to receive if you ever become sick or injured and incapable of making your own decision regarding such matters.

Treatments may include medical, surgical, dental treatment, palliative care and life-sustaining measures such as life support machines.

Generally, Victoria and Western Australia laws recognise valid care directives made in other Australian states and territories.

Application of Advance Health Directive/ Advance Care Directives

An Advance Health Directive or Advance Care Directive is only used when it applies to the treatment you require and you have lost your capacity to consent to or refuse medical treatment. In other words, if you require treatment but are unable to communicate your wishes.

Generally, in urgent situations where you need urgent treatment to save your life or prevent unnecessary pain, doctors can provide this treatment without seeking consent. However, they will need to seek consent for ongoing treatment. In non-urgent medical situations, doctors will refer to a hierarchy of medical decision makers.

Hierarchy of medical decision makers

In Victoria, the medical treatment decision maker is the first person in the list below who is reasonably available, and willing and able to make the decision:

1. a medical treatment decision maker appointed by the patient;
2. a guardian appointed by Victoria Civil and Administrative Tribunal to make decisions about medical treatment; or
3. the first person in the list below who is in a close and continuing relationship with the patient:
   • the patient’s spouse or domestic partner
   • the patient’s primary carer (not a paid service provider)
   • an adult child of the patient
   • a parent of the patient
   • an adult sibling.

If there are two or more relatives who are first on this list, it is the oldest person.

In Western Australia, if you have both an EPG and an Advance Health Directive, your Advance Health Directive will take priority over the decisions of your enduring guardian for the treatment stated in the EPG.

Decisions must be made in accordance with the AHD unless circumstances have changed or could not have been foreseen by the maker.

Where an AHD does not exist or does not cover the treatment decision required, the health professional must obtain a decision for non-urgent treatment from the first person in the hierarchy who is 18 years of age or older, has full legal capacity and is willing and available to make a decision.

• Enduring Guardian with authority;
• Guardian with authority;
• Spouse or De facto partner;
• Adult son or daughter;
• Parent;
• Sibling;
• Primary unpaid caregiver;
• Other person with close personal relationship.

Click here for the hierarchy of medical treatment decision makers in Western Australia:

https://www.wa.gov.au/system/files/2022-02/treatment-decision-makers-heirarchy.pdf

Please contact our lawyers in Perth and Melbourne if you would like to know more about or require assistance with estate planning, power of attorney, guardianship and advance care directive matters.