Living wills

Contributed by Susan Brooks and current to 1 September 2005

Legislation has been introduced in other states to ensure that a patient’s prior wishes about medical treatment will be respected if they lose the mental capacity to make those decisions for themselves.

In Western Australia, such documents, known as advance directives or living wills are not legally binding and there is as yet no legislation enabling a person to appoint an enduring power of attorney for medical treatment (although there is overseas precedent in the Canadian decision of Malette v Shulman (1987) 47 DLR (4th) 18 (Ont CA), where a living will was considered valid and binding).

The State Administrative Tribunal may appoint a guardian to make medical decisions and under s.44(2)(c) of the Guardianship and Administration Act the guardian can consider the expressed wishes of the person in making such decisions.

Therefore an advance directive is likely to be highly persuasive to the guardian and the Tribunal: see further GUARDIANSHIP & ADMINISTRATION .

If you have strong feelings about such issues as maintaining artificial life support or resuscitation after cardiac arrest and want to maintain some authority over such decisions, then an advance directive should be considered.

A solicitor could help to draw up a living will and it should be kept up-to-date.