Frequently Asked Questions
- What is an Advance Health Directive?
- Why prepare an Advance Health Directive?
- What if I don’t make an Advance Health Directive?
- When will my Advance Health Directive come into effect?
- Is there a time limit from when the form is signed to when the directive will be acted upon?
- Who can make an Advance Health Directive?
- Are there any age limits?
- Who needs to witness my signature on my Advance Health Directive?
- I am not able to sign my Advance Health Directive. Can someone else sign on my behalf?
- Can my Guardian or Enduring Guardian make an Advance Health Directive for me?
- Am I required to discuss my Advance Health Directive with my doctor before signing it?
- Am I required to discuss my Advance Health Directive with a lawyer before signing it?
- If I want to change my Advance Health Directive can I amend my current document?
- Can I be forced to sign an Advance Health Directive against my will?
- What do I do with my completed Advance Health Directive?
- Do copies of my Advance Health Directive need to be certified copies?
- Can I register my Advance Health Directive?
- How confidential is my Advance Health Directive?
- Where are Advance Health Directive forms available from?
- Can I create my own Advance Health Directive form?
- Will my Advance Health Directive be valid in other states and territories of Australia?
- Can an Advance Health Directive include permission regarding organ donation?
- What if I need urgent treatment e.g. if in an emergency situation I am unconscious and my Advance Health Directive is not available?
- Can I include a treatment decision to consent to some aspects of palliative care and not others in my Advance Health Directive?
- Does an Advance Health Directive permit euthanasia?
- How long will an Advance Health Directive be valid?
- What is the difference between a living will and an Advance Health Directive?
- Is it a legislative requirement that an Advance Health Directive form be used if a patient already has a living will?
- What is the difference between an Enduring Power of Guardianship and an Advance Health Directive?
- Can I appoint an Enduring Guardian in my Advance Health Directive?
- I have already appointed an Enduring Attorney, can they also make personal, lifestyle and treatment decisions on my behalf?
What is an Advance Health Directive?
An Advance Health Directive is a document that contains your decisions about future treatment. Treatment includes medical, surgical and dental treatment and other health care.
You can make an Advance Health Directive in which you either provide consent, or refuse consent, to future treatment.
Why prepare an Advance Health Directive?
Some people, perhaps because of a personal experience, religious beliefs or advice from loved ones, feel it is important to specify the treatments they want, or do not want, to receive in the future. However, you don’t have to prepare an Advance Health Directive. Each person should decide whether completing an Advance Health Directive is right for them or not.
What if I don’t make an Advance Health Directive?
If you have chosen not to make an Advance Health Directive, a treatment decision will be made on your behalf in the event that you are unable to make the treatment decision for yourself. The treatment decision will be made by (in the following order of priority) your Enduring Guardian (if you have appointed one), your Guardian (if one has been appointed for you), or by a person responsible for you (such as your spouse, parent, child, sibling or unpaid carer).
When will my Advance Health Directive come into effect?
An Advance Health Directive comes into effect only if you are unable to make reasonable judgments about a treatment decision at the time that the treatment is required. In these circumstances, the Advance Health Directive acts as your ‘voice’.
Is there a time limit from when the form is signed to when the directive will be acted upon?
Your Advance Health Directive has no time limit and only comes into effect if you are unable to make reasonable judgements about the treatment at the time that the treatment is required.
Who can make an Advance Health Directive?
You may make an Advance Health Directive if you are at least 18 years of age and have full legal capacity. You have full legal capacity if you are capable of understanding the nature and effect of your Advance Health Directive. You may lack full legal capacity if your decision making is impaired, for example, by reason of illness, disease or injury, or the effects of medication, drugs or alcohol.
If you have any doubts about your capacity to make an effective Advance Health Directive, you should ask your doctor for an assessment.
Are there any age limits?
Yes. You may only make an Advance Health Directive if you are at least 18 years of age.
Who needs to witness my signature on my Advance Health Directive?
You must sign the Advance Health Directive in the presence of two witnesses.
The witnesses must sign in your presence and in the presence of each other. The witnesses must each be at least 18 years of age. One of the witnesses must also be a person who is authorised to witness statutory declarations. The following people are authorised to witness statutory declarations:
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It is worth noting that all registered health professionals are included on this list. Additionally, lawyers who you may be attending for assistance with Enduring Powers of Attorney are also included on this list.
I am not able to sign my Advance Health Directive. Can someone else sign on my behalf?
Yes. If you are incapable of signing (or writing) your Advance Health Directive, someone may sign the Advance Health Directive at your direction. If someone signs the Advance Health Directive at your direction, they are not able to be one of the witnesses. Having someone sign the Advance Health Directive at your direction is different from them making the Advance Health Directive on your behalf (which is not permitted).
Can my Guardian or Enduring Guardian make an Advance Health Directive for me?
No, it is not possible for another person to make an Advance Health Directive on your behalf.
Am I required to discuss my Advance Health Directive with my doctor before signing it?
No, although you are encouraged to do so.
Am I required to discuss my Advance Health Directive with a lawyer before signing it?
No, although it is open to you to do so.
If I want to change my Advance Health Directive can I amend my current document?
Rather than amending your Advance Health Directive, it is preferable for you to complete a new Advance Health Directive, making sure that you comply with the witnessing requirements.
Can I be forced to sign an Advance Health Directive against my will?
A treatment decision contained in an Advance Health Directive which was not made voluntarily or which was made as a result of an inducement or coercion will be invalid.
In circumstances where it is suspected that an Advance Health Directive was not made voluntarily or was influenced by inducement or coercion, it would be appropriate to make an application to the State Administrative Tribunal for a determination of (in)validity.
What do I do with my completed Advance Health Directive?
- Keep it in a safe place.
- Give a copy to your family, hospital, GP or other health professional.
- If you have an Enduring Guardian or Guardian you should give them a copy.
- If you are admitted to hospital or any other facility (for example an aged-care service) a copy should be provided to the service.
- You may also wish to carry a card or statement in your purse or wallet stating that you have made an Advance Health Directive and how a copy can be obtained.
- You may wish to consider purchasing a MedicAlert bracelet to inform any treating doctors that you have created an Advance Health Directive.
Do copies of my Advance Health Directive need to be certified copies?
Although there is no requirement for copies of your Advance Health Directive to be certified, this may be useful.
A person who is authorised as a witness for statutory declarations under the Oaths, Affidavits and Statutory Declarations Act 2005 may certify that the copy is a true copy of the original document. A suggested wording for the certification is as follows:
“I certify that this is a true copy of the original produced to me on <date>.
Signature
Name
Qualification (eg JP, Pharmacist)”
Can I register my Advance Health Directive?
At this stage it is not possible to register Advance Health Directives.
How confidential is my Advance Health Directive?
This will depend on who and in what circumstances you give access to your Advance Health Directive. It is recommended that a copy be given to your Enduring Guardian (if you have appointed one), your Guardian (if one has been appointed for you), general practitioner, hospital, nursing home, carer and your family.
Where are Advance Health Directive forms available from?
Advance Health Directive forms are available from the Office of the Chief Medical Officer, Department of Health by phone - (08) 9222 4222 or email -
Chief.Medical.Officer@health.wa.gov.au. Alternatively, further information and the forms are available from the Department of Health website - www.health.wa.gov.au/advancehealthdirective.
Can I create my own Advance Health Directive form?
It is possible (but not recommended) to create your own Advance Health Directive form. If you do choose to create your own form, it is required to be in substantial compliance with the form as it is contained in the Guardianship and Administration Regulations 2005 (copy available at www.slp.wa.gov.au).
Will my Advance Health Directive be valid in other states and territories of Australia?
This will depend on the legislation in the particular state or territory.
Can an Advance Health Directive include permission regarding organ donation?
An Advance Health Directive is ineffective after death. Therefore, this is not the appropriate document on which to record your wishes with regards to organ donation.
If you wish to donate your organs and tissues, you can register your wishes on the Australian Organ Donation Register. Contact your local Medicare Australia office or visit www.medicareaustralia.com.au for further information.
What if I need urgent treatment e.g. if in an emergency situation I am unconscious and my Advance Health Directive is not available?
If urgent treatment is required to save your life, prevent serious damage to your health or to prevent you from suffering significant pain or distress; a treatment decision will be made on your behalf (in the following order of priority) by your Enduring Guardian (if you have appointed one), Guardian (if one has been appointed for you) or by person responsible for you (such as your spouse, parent, child, sibling or unpaid carer).
Can I include a treatment decision to consent to some aspects of palliative care and not others in my Advance Health Directive?
Yes. An Advance Health Directive allows you to describe in very specific terms which treatments you would consent to (or refuse) in specific circumstances.
Does an Advance Health Directive permit euthanasia?
No, an Advance Health Directive cannot require or authorise a doctor or other health professional to take active steps to unnaturally end life.
How long will an Advance Health Directive be valid?
There is no set time period after which an Advance Health Directive will become elapse or expire. However, given that people can change their mind, if a long period of time has elapsed between the time that you made the Advance Health Directive and the time that the treatment decision is required, it may create some uncertainty. As such, it is recommended that you regularly review your Advance Health Directive to ensure that it reflects your current wishes.
What is the difference between a living will and an Advance Health Directive?
Under the common (or judge made) law, it is possible to make a “living will”. This is a general term for a written statement made in advance regarding the person’s wishes with respect to future treatment.
An AHD is a specific type of “living will” which is recognised by legislation. The Act enshrines the enforceability of the AHD, subject to certain safeguards, and provides protections for health professionals who take treatment actions in good faith.
If you have doubts about the validity of a “living will”, or the person has made both a “living will” and an AHD and they are inconsistent with each other, it is recommended that you obtain legal advice.
Is it a legislative requirement that an Advance Health Directive form be used if a patient already has a living will?
Despite the introduction of the legislation, it is still possible for people to make a “living will” and for this to be valid under the common law.
What is the difference between an Enduring Power of Guardianship and an Advance Health Directive?
An Enduring Power of Guardianship is a legal document in which you appoint one or more persons as Enduring Guardian(s) to make personal, lifestyle and treatment decisions on your behalf.
You can choose the type of decisions your Enduring Guardian will be able to make. Such decisions include where you will live, and what treatment and medical services you will receive.
An Advance Health Directive is a document that contains your decisions about future treatment. Treatment includes medical, surgical and dental treatment and other health care. You can make an Advance Health Directive in which you either provide consent, or refuse consent, to future treatment.
Having an Advance Health Directive means that in the event you are unable to make a treatment decision yourself, the instructions you have given in your Advance Health Directive will be used instead of your appointed Enduring Guardian making these decisions for you.
Can I appoint an Enduring Guardian in my Advance Health Directive?
No. You cannot use your Advance Health Directive to appoint an Enduring Guardian. To appoint an Enduring Guardian you must complete an Enduring Power of Guardianship form. This form is available from the Office of the Public Advocate. The Office of the Public Advocate may be contacted via opa@justice.wa.gov.au or 1300 858 455.
I have already appointed an Enduring Attorney, can they also make personal, lifestyle and treatment decisions on my behalf?
No. Unlike an Enduring Guardian, an Enduring Attorney is not able to make personal, lifestyle and treatment decisions on your behalf. The authority of the Enduring Attorney is limited to making decisions about your financial affairs and property.
However, it is possible for the same person to be appointed as both your Enduring Guardian and Enduring Attorney at the same time.