What Is an Advance Health Directive – and Who Should Help You Prepare One?

If an accident or illness left you unable to make decisions about your health care, who would make those decisions for you? More importantly, how could you ensure that those choices reflect your own values and wishes?

An Advance Health Directive (AHD) is a legal document that allows you to set out your decisions about future health care. It enables you to consent to, or refuse, specific medical, surgical, or palliative treatments, including life-sustaining measures or participation in medical research.

In Western Australia, Advance Health Directives are governed by Part 9B of the Guardianship and Administration Act 1990 (WA) (“the Act”). Under section 110P of the Act, a valid AHD allows you to make decisions in advance about your health care so that, if you later become unable to communicate or make decisions, your treating health professionals are legally required to follow your documented instructions.

Importantly, an AHD only takes effect if you lose capacity to make or communicate decisions about your treatment. While you retain capacity, your health care providers must continue to take instructions directly from you.

Your AHD becomes the primary source of authority for medical decision-making if you lose capacity. Health professionals must refer to your AHD before providing treatment. This remains true even if you have appointed an Enduring Guardian under an Enduring Power of Guardianship (EPG).

Under section 110S of the Act, the directions in an Advance Health Directive take precedence over any decision made by an enduring guardian or other substitute decision-maker. In other words, your written instructions in an AHD usually override any contrary wishes expressed by your guardian or family members.

Why Consider an Advance Health Directive?

An Advance Health Directive gives you greater control over your future health care. It ensures that your personal values and treatment preferences are known and respected, even if you can no longer communicate them yourself. This can also help relieve your loved ones from the burden of making difficult medical decisions during a stressful time.

Who Should Help You Prepare an Advance Health Directive?

While you do not legally need a lawyer to complete an AHD, it’s important that the document is clear, specific, and validly executed in accordance with the Act. Seeking professional assistance is the best way to make sure this is done correctly. It must be:

• In writing and in the prescribed form set out in Schedule 2 to the Guardianship and Administration Regulations 1995 (WA);
• Signed by you in the presence of two witnesses, one of whom must be authorised to witness statutory declarations (for example, a justice of the peace, lawyer, or medical practitioner); and
• Made voluntarily and with full understanding of the nature and effect of the document.

You should also seek assistance from your General Practitioner or Specialist when completing an AHD to ensure that any medical terminology or treatment options are accurately described. For more complex circumstances—such as where an AHD interacts with an Enduring Power of Guardianship or a broader estate plan—it may also be prudent to seek legal advice.

An Advance Health Directive is an important part of planning for your future health and wellbeing. It gives you a voice when you may not be able to speak for yourself and ensures that your treatment aligns with your own beliefs and preferences.

If you would like advice on preparing an Advance Health Directive or on how it fits within your overall estate planning arrangements, our dedicated team can help guide you through the process.