Planning for your future care is a crucial step in advocating for yourself while you are able, to ensure that your health, personal, and lifestyle decisions are respected, especially if you are unable to make those decisions yourself. An Enduring Power of Guardianship (EPG) and the Advance Health Directive (AHD) are two tools available to people in Western Australia in planning for their future. While both are valuable, they serve distinct purposes and can work together to provide comprehensive future care planning.
An EPG and AHD are voluntary legal documents that only you can make for yourself if you are over 18 years old and have full legal capacity.
What is an Enduring Power of Guardianship?
An Enduring Power of Guardianship (EPG) is a legal document that allows you to appoint a trusted person or people, known as a guardian(s), to make personal, lifestyle, and medical decisions on your behalf and in your best interests if you lose the capacity to make those decisions yourself.
A loss of capacity can happen at any moment in your life and be short-term or long-term such as an accident, stroke, dementia or while under anesthetic.
The types of decisions an enduring guardian can make include where you live, who you associate with on a day-to-day basis, book medical appointments for you and decide what kind of healthcare and treatment you receive. An EPG does not authorise an enduring guardian to make financial or property decisions on your behalf.
Importantly, the EPG only comes into effect if you lose capacity.
If you have made an EPG and want to change the person or people you have named in the document as your guardian(s), then you should speak with a Wills and Estate planning lawyer in Western Australia as soon as possible to discuss the process of revoking the document.
What is an Advance Health Directive?
An Advance Health Directive (AHD) is often referred to as a ‘living Will’ and is a different document to an Enduring Power of Guardianship (EPG).
An AHD is a legal document that allows you to make specific medical treatment decisions in advance. It allows you to consent or refuse consent to the commencement or continuation of medical treatment such as resuscitation, assisted ventilation, life support or life-sustaining measures, dental surgery, palliative care or other healthcare/surgery.
Your AHD would only be used at times when you are unable to make and/or communicate decisions about your treatment and health care, and a decision needs to be made in relation to a specific treatment outlined in your AHD. It would not apply to any treatments that you have not included in your AHD. It only applies to the specific treatments you have included in your AHD.
What CANNOT be included in an Advance Health Directive?
• Organ and tissue donation – if you would like to donate your organs and tissue after your death, then you need to formally register your interest at donatelife.gov.au.
• Donate your body for medical research – there is a formal process to register your interest in donating your body for medical research, which can only be done by you during your lifetime. It is not possible for a friend or family member to donate your body if the formal process has not been followed (even if donating your body was your wish).
The University of Western Australia has a ‘Body Donation Program’ which you can read about here.
Importantly, in the absence of a duly signed and witnessed consent form, and “prior registration with the Body Donation Program”, the University cannot accept a body bequest.
• Voluntary Assisted Dying – this is a legal option available only to eligible Western Australians and cannot be included in your Advance Health Directive. If it is something you are interested in considering or would like to speak with someone about it, then we recommend you speak with your healthcare provider or contact the WA VAD Statewide Care Navigator Service.
• Appoint an enduring guardian – if you want to appoint someone you trust to make health, lifestyle and medical decisions on your behalf that have not been covered by your AHD, then you need to make an Enduring Power of Guardianship.
What are the key differences between an EPG and AHD?
• An EPG allows another person or persons you trust and have chosen to make decisions about your lifestyle, health, and personal care if you lose capacity.
• An AHD allows you to voice your wishes regarding specific treatments in the event an urgent decision needs to be made, but you are not able to communicate or decide at the time. Both tools complement each other. Having both an EPG and an AHD in place gives you comprehensive control over your future care—ensuring your medical and personal preferences are respected, whether by a trusted guardian or through your own advance instructions.
Scenario: You have lost the capacity to make your own decisions or communicate your own decisions ab.
The table below summarizes what would happen in the event you do not have the capacity to make your own decisions depending on what documents you have in place.
| Advance Health Directive (AHD) | Enduring Power of Guardianship (EPG) | What does this mean? |
| YES | YES | The person or people you have appointed as your enduring guardian(s) step in and make all urgent and non-urgent health, lifestyle and treatment decisions on your behalf.
BUT your enduring guardian(s) cannot override any specific treatment decisions or medical requests that you have included in your AHD. Your AHD will guide your treatment decisions, and your enduring guardian(s) will make all other decisions not included in your AHD. |
| YES | NO | Your AHD will be used to guide your treatment decisions.
Health professionals will obtain a decision from the first person in the hierarchy of decision-makers who is 18 years or older, has full capacity and is willing and available to make a decision, to make any non-urgent decision that needs to be made that is not covered by your AHD. |
| NO | YES | Your enduring guardian(s) will be asked to make all urgent and non-urgent decisions on your behalf. |
| NO | NO | Health professionals will obtain a decision from the first person in the hierarchy of decision-makers who is 18 years or older, has full capacity and is willing and available to make decisions on your behalf.
If there is nobody suitable and/or available, then the State Administrative Tribunal (SAT) can make an order to appoint someone or a government body to make decisions on your behalf. You have no control or say as to who will be making decisions on your behalf. |
How often should I review my EPG and AHD?
It is recommended you review your EPG and AHD every 2 to 5 years or if your circumstances change.
For example, if you change your mind about a specific treatment or a person you have appointed as an enduring guardian, then you may need to review your documents earlier than 2 to 5 years.
What do I do with the completed EPG and/or AHD?
There is nowhere to register your Advance Health Directive or Enduring Power of Guardianship in Western Australia.
However, you should keep the original documents in a safe place where it will not become damaged from water or fire. If you have lost the original documents or the original documents have become damaged, then you should discuss this with a Wills and Estate planning lawyer as soon as possible.
You can store a copy of your signed Advance Health Record online using My Health Record.
We recommend that you tell people close to you and those who are involved in your care that you have made an Advance Health Directive and Enduring Power of Guardianship.
This may include:
• your regular treating GP and medical specialist (if applicable) – we recommend showing them the original document so they can make a certified copy if necessary;
• local hospital;
• Residential Aged Care home, independent living facility, retirement living facility;
• your dentist;
• Enduring guardian(s);
• your trusted family, friends and carers;
• other specialist(s) and/or other health professionals;
• regular pharmacy or chemist; and
• Legal professionals.
What is the benefit of a lawyer preparing these documents?
‘You don’t know what you don’t know’. If the documents have not been correctly drafted or executed, then this may cause issues when they need to be relied upon.
If the documents are found to be invalid and you do not have capacity, then they cannot be used, and no other person can prepare these documents on your behalf. By having these documents prepared by lawyers with specific knowledge and skills in the area, you are advocating for yourself in advance and preparing for a situation when you may not be able to make your own decisions or even communicate what you want.
Do not leave it to chance or to a stranger to decide your healthcare plan.
At Lynn & Brown Lawyers, our lawyers are dedicated to helping individuals prepare estate planning documents suitable to their circumstances, wishes and future needs.
If you would like to discuss preparing these documents with a lawyer, then contact Lynn & Brown Lawyers today to make an appointment with one of our Wills and Estate planning lawyers.
About the Author: Hannah is a graduate of both the University of Western Australia and Notre Dame University, having completed a Bachelor of Arts (major in ‘Law and Society’’ and minors in History and Psychology) in 2016 and a Bachelor of Laws in 2018.
