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Advanced Health Directive and Voluntary Assisted Dying

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We provide this information about voluntary euthanasia and how it relates to the law in Western Australia without asserting any moral judgement either for or against the matter.

What is an Advanced Health Directive?

In Western Australia, an Advance Health Directive (AHD) is a device governed by the Guardianship and Administration Act 1990 (WA) to enable a person to provide or withhold consent for certain specific healthcare, medical, surgical or dental treatment or procedures including life-sustaining measures and palliative care.  In some other jurisdictions they are better known as ‘Advance Care Directives’.

An AHD is a written legal document which explains how you wish to be treated in the future should you become incapable of making informed decisions. They are the first port-of-call when a patient lacks capacity to consent to medical treatment. If you have an AHD, this will override any decisions made by your assigned Guardian if you were to lose capacity.

An Advance Health Directive allows a person to:

  • set out values and wishes to guide decisions about their future healthcare and other personal matters; and
  • set out what, if any, particular healthcare they refuse and in what circumstances.

If you are interested in having an AHD drafted to your personal needs, please contact Carter Dickens Lawyers on (08) 9408 5212 to arrange a consultation to discuss securing your future healthcare needs.

 

What is Voluntary Assisted Dying?

Voluntary Assisted Dying (VAD), also known as ‘voluntary euthanasia’, is defined in the Voluntary Assisted Dying Act 2019 (WA) as the “administration of a voluntary assisted dying substance and includes steps reasonably related to that administration.” Essentially, VAD means that eligible adults could ask for medical help to end their life if they have a disease or illness that is so severe it is going to cause suffering and their eventual death. The term ‘voluntary assisted dying’ emphasises the voluntary nature of the choice of the person and their enduring capacity to make this decision.

In December 2019 the Voluntary Assisted Dying Act 2019 (WA) was passed by the Western Australian Parliament.

 

Criteria and Eligibility for the Voluntary Assisted Dying Act 2019 (WA)

In terms of eligibility to access Voluntary Assisted Dying, one must satisfy the following criteria:

  • Aged 18 years or over;
  • Australian citizen or permanent resident who has been ordinarily resident in Western Australia for at least 12 months;
  • They have been diagnosed with at least 1 disease, illness or medical condition that is advanced, progressive and will cause death; and, will, on the balance of probabilities cause death within a period of 6 months (or 12 months for neurodegenerative); and, is causing suffering that cannot be relieved in a manner that the person considers tolerable;
  • They must have decision-making capacity in relation to voluntary assisted dying;
  • The person must be acting voluntarily and without coercion;
  • The person must have an enduring request for access to voluntary assisted dying.

Finally, to access voluntary assisted dying a person must be independently assessed as eligible by two medical practitioners. These medical practitioners must meet certain requirements and have undergone mandatory training. They may also refer the person for additional assessments if required.

During the process the person must make three separate requests for voluntary assisted dying: a first request, a written declaration and a final request. The written declaration must be witnessed by two people (who meet specific requirements as relevant legislation).

 

Relationship between the Voluntary Assisted Dying Act 2019 (WA) and Advanced Health Directives

You cannot make arrangements for VAD through an AHD. The Western Australian Legislature specifically amended the Guardianship and Administration Act 1990 (WA) to ensure AHDs will not have this power.

This was discussed at length in Parliament and they have offered the following reasoning in the Explanatory Memorandum for the Voluntary Assisted Dying Act 2019 (WA) Act:

“… The effect of this clause is to make it clear that voluntary assisted dying cannot be included in an advance health directive as a treatment decision in respect of a person’s future treatment for the purposes of Part 9B of the Guardianship and Administration Act 1990 (WA). Further, this clause also makes it clear that a treatment decision cannot be made under the Guardianship and Administration Act 1990 (WA) in respect of voluntary assisted dying.”

Essentially, despite legalising VAD, the circumstances have been significantly limited to only highly specific situations.

At Carter Dickens Lawyers, we have a fixed fee to prepare an AHD. If you require more information on the availability of AHDs to your situation, please do not hesitate to contact us on (08) 9408 5212 where we can arrange a free 15-minute phone consultation with one of our Lawyers.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your Legal Matter.

Are you legally prepared for COVID-19?

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Whilst we prepare for many events in our lives, we often neglect to discuss the difficult ‘what if’ topics like passing away suddenly. Unfortunately, for many people, this means they leave their family without information and guidance about what to do when they die. Without adequate preparation, your loved ones may be left exposed to drawn out litigation required to settle your estate. As such, it is importantly to ensure you are legally prepared for the unforeseen to prevent further hardship to your family.

On the 11th of March 2020, the World Health Organisation (WHO) declared the Coronavirus (COVID-19) a pandemic. This is just one example of many unforeseeable global issues that may have significant implications for those who are legally unprepared. It is vital that people of all ages ensure that they are prepared for the legal ramifications of death or illness. Please make sure that you stay up-to-date and comply with all government directions and policies regarding COVID-19.

If you have not already done so, you should ask yourself the following questions to see if you are legally prepared for the unforeseen:

Do I have a Will and is it up to date?

No one wants to be worried about their assets from a hospital bed, as such it is vital to have a Will prepared. A Will is a legal document that sets out how you wish for your assets to be distributed after your death. It forms part of an estate plan and is an important strategic step in preserving your property for your family or other beneficiaries.

Passing away without a Will can place a significant burden on your family. It can impose onerous legal fees on your loved ones, and may result in your assets being distributed by the Supreme Court of Western Australia. Having a Will may ensure that your estate is dealt with promptly and efficiently and that your family is not left to fight drawn out legal battles.

Simply put, a Will properly drafted by our lawyers is the best way to have your assets dealt with in accordance with your wishes after your passing. A Will is designed to reduce future complications and reduce the likelihood of disputes arising from the interpretation of your Will between trustees, beneficiaries, and other parties.

Do I have an Enduring Power of Attorney?

An Enduring Power of Attorney (“EPA”) allows you to appoint someone you trust to make property and financial decisions on your behalf in the event you lose the legal capacity to manage your own affairs. This will include managing your money and real estate. An EPA does not permit an attorney to make personal, medical and lifestyle decisions.

In light of events such as the COVID-19 pandemic, the benefits of an EPA are clear given the chances of hospitalisation or isolation. In such an event, an EPA would allow your appointed attorney to undertake a range of tasks  on your behalf when and if appropriate to do so. These may include everyday tasks, such as paying your bills and signing documents that require urgent attention, or more complex tasks such as dealing with your property (i.e. selling property) during your recovery.

Do I have an Enduring Power of Guardianship?

An Enduring Power of Guardianship (“EPG”) allows you to appoint someone to make personal, lifestyle and treatment decisions on your behalf should you ever become incapable of making these decisions yourself. These decisions include, but are not limited to, where you will live and what medical treatment you will receive.

With events such as COVID-19 having potentially life-threatening health impacts, it is vital to ensure that you have a guardian, appointed via a legally enforceable EPG. Your appointed guardian should understand your health care plans, directives and wishes should you become incapable of dealing with your own health care decisions. You must also ensure that if you have already appointed a guardian, they know of their appointment and are willing to act in such a capacity.

Where no attorney is nominated via an EPG you risk having the Public Advocate, which is a government body, appointed to assume responsibility over your health care decisions. This means that should you become mentally, or physically incapacitated without having executed an EPG, your family may not have sole control over your health care decisions.

Did you know that your Superannuation does NOT form part of your estate by default?

Superannuation is not considered an estate asset. A super fund is a type of trust meaning that it is not legally “owned” at the time of death. This means that on death it does not flow to the estate of the deceased automatically. Instead, without a binding death nomination a trustee of the super fund will pay out ‘death benefits’ in accordance with the governing rules of the fund and relevant law. This means that if you arrange to leave all your super to a child or spouse, this might not be honoured upon your passing.

However, an up-to-date Binding Death Nomination can be used to override the trustee’s discretion and ensure that the arrangements you have made during your lifetime are honoured. Simply put, a Binding Death Nomination is a legally binding nomination allowing you to advise the trustee who is to receive your superannuation benefit upon your passing and how to distribute your benefit.

Note, Binding Death Nominations should be reviewed regularly, as they can lapse in binding force after a period (usually 3 years). If you do not have a Binding Death Nomination or have not reviewed it in recent years, we advise that you talk to one of our lawyers regarding your options.

Do I have all my important documents in order?

You should ensure that copies all your important documents are stored together with your Will. Usually, after a person passes away, that person’s family will struggle to locate all relevant documents, passwords, and keys. To assist your family, you should prepare a list detailing your:

  • assets and liabilities;
  • access codes and passwords;
  • the location of keys and other documents i.e. bank account details, superannuation details etc.; and
  • details of your financial advisor, lawyer, accountant, insurance company and similar entities.

It is important to share with someone you trust the location of that list.

Do I need to nominate a guardian for my children?

If you are a parent of a child under 18, it is important that you know who will take care of your children if anything were to happen to you. Generally, whilst care of your children would flow to the other parent, it is worthwhile determining who would assume care of your children in the unfortunate event that both you and the other parent have passed on.

Fortunately, s71(3) of the Family Court Act 1997 allows you as a parent to appoint a testamentary legal guardian for your child via a Will or Deed. The appointment of a guardian will only take effect upon the death of the last surviving parent or legal guardian of the child. The appointment ends when the child reaches the age of 18 years. If you are unsure of who will take care of your children if you and the other parent are no longer, it may be time to speak to one of our lawyers.

If you have not yet prepared the above documents, you leave your family open to the potential of costly litigation. Further, there is no guarantee that your arrangements would be honoured upon your passing if you do not have a legally enforceable Will.

 Contact CD Lawyers today, and we can assist you and your family in ensuring you are legally prepared for the unforeseen.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Have you made a Will?

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At CD Lawyers, we specialise in Family Law matters but also have years of knowledge in practice areas ranging from criminal law to estates planning and litigation.

Passing away without a Will can place a significant burden on your family. It can impose onerous legal fees on your loved ones and may result in your assets being distributed by the Court. By having your Will drafted by us, we can assist you to have your assets divided in accordance with your wishes upon your passing. You can also nominate the person you wish to act as your executor to look after your Estate when you pass.

It is important to seek professional assistance when writing a Will. Our lawyers will write your Will in accordance with your instructions and provide practical advice that will help prevent any complications after your passing. This reduces the likelihood of disputes regarding interpretation between trustees, beneficiaries and other parties.

A Will properly drafted by a lawyer is the best way to have your assets dealt with as you wish after your passing – but how do you manage your affairs in the event that you lose capacity to make decisions while still alive?

Enduring Power of Attorney (“Attorney”) and Enduring Power of Guardianship (“Guardian”) documents allow you to appoint a trusted person to make decisions on your behalf when you are no longer able to do so. An Attorney is eligible to make property and financial decisions on your behalf. A Guardian has authority to make personal, lifestyle and treatment decisions for you.

Attorney and Guardian documents must be in a specified format in order to be legally enforceable. It is important that you keep the original Attorney and Guardian documents and consider giving copies to your appointed attorneys/guardians and your lawyer. It is also recommended that you provide your GP and relevant health professionals copies, due to the nature of the documents. All copies, especially the original, will need to be kept in a safe place where they will not be lost, damaged or destroyed.

Attorneys and Guardians can assist your family in making life a little bit easier at a difficult time for all. It is important that you have these documents completed in order to be prepared for situations in which you are no longer able to make decisions for yourself.

Our office can prepare Attorney and Guardian documents for you, and write your Will for a fixed fee arrangement. This can be further reduced if we draft the documents together. We also offer discounts for people that hold a pension card. Contact our office for more information.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Contact Us

Suite 102, 126 Grand Boulevard, Joondalup WA 6027

Phone: (08) 9408 5212

info@cdlawyers.com.au