Advance health directives and enduring guardianship in Western Australia 

This article states the law of Western Australia. Unlike most jurisdictions, Western Australia keeps guardianship, enduring guardianship and advance health directives in a single statute — the Guardianship and Administration Act 1990 (WA), at Parts 9A and 9B¹. The prior question in a directive problem is not only whether the maker can make reasonable judgments, but whether circumstances have changed in a way that stops the directive operating at all.

When an enduring power of guardianship has effect

Section 110F is brief and sets the trigger: an enduring power of guardianship has effect, subject to its terms, "at any time the appointor is unable to make reasonable judgments in respect of matters relating to his or her person".

The test is inability to make reasonable judgments about personal matters, not a general incapacity, and it is time-specific — the power has effect at any time that state exists, so it can switch on and off.

Section 110G(1) then gives an enduring guardian the same functions as a plenary guardian has in relation to a represented person, subject to the same statutory limitations, unless the instrument limits them (s 110G(2)). An appointor who wants a narrower appointment must say so; the default is broad.

When a treatment decision operates

Section 110S(1) provides that a treatment decision in an advance health directive operates, in respect of the treatment to which it applies, at any time the maker is unable to make reasonable judgments in respect of that treatment, and does so as if the decision had been made by the maker at that time and the maker were of full legal capacity.

That is the same deeming device Queensland uses: the directive is read as a contemporaneous decision by a capable person rather than weighed as a historical preference. Note the trigger is treatment-specific — inability to judge that treatment, not treatment generally.

Section 110S(2) adds that a treatment decision operates only in the circumstances specified in the directive, so a directive drafted for one situation does not reach another.

The changed-circumstances rule

Section 110S(3) is the provision that distinguishes Western Australia from every other jurisdiction examined. A treatment decision does not operate if circumstances exist or have arisen that:

• the maker would not have reasonably anticipated at the time of making the directive; and
• would have caused a reasonable person in the maker's position to have changed his or her mind about the treatment decision.

Both limbs are required. Unanticipated circumstances alone are not enough; they must be circumstances that would have changed a reasonable person's mind.

Section 110S(4) then makes four matters mandatory in deciding whether s 110S(3) applies: the maker's age both when the directive was made and when the decision would otherwise operate; the period elapsed between those times; whether and when the maker last reviewed the decision; and the nature of the condition needing treatment, the nature of that treatment, and the consequences of providing and not providing it.

Two things follow for a student. First, a directive in Western Australia is not self-executing on its terms — it can be displaced by developments the maker did not foresee. Second, review matters: s 110S(4)(c) makes the recency of the maker's last review a mandatory consideration, so a regularly reviewed directive is materially harder to displace than an old one.

Priority is decided elsewhere

Section 110U does not itself state the priority of a treatment decision. It routes the question: priority is determined in accordance with s 110ZJ for treatment generally, or s 110ZLA where the treatment decision concerns the performance of an abortion on the maker.

An answer asserting that a Western Australian directive has priority over another decision-maker must therefore cite the operative priority provision rather than s 110S or s 110U, which do different work.

Section 110V allows a person who, in the Tribunal's opinion, has a proper interest in the matter to apply for a decision under the Division — a broader gateway than a fixed list of eligible applicants.

Four approaches to the same instrument

• Western Australia — operates as a contemporaneous capable decision, but is defeated by unanticipated circumstances that would have changed a reasonable person's mind, with review recency a mandatory factor.
• Queensland — operates as a contemporaneous capable decision, and has priority over an attorney's health power, but a life-sustaining direction requires cumulative clinical preconditions.
• Victoria — an instructional directive binds either way, refusal or consent; a values directive guides.
• South Australia — only a refusal of health care binds; positive directions do not.

Each jurisdiction has chosen a different point at which to let something other than the written words prevail: WA at changed circumstances, Queensland at clinical state, Victoria at labelling, South Australia at the refusal/direction divide.

Applying this in a problem question

1. Ask whether the maker is unable to make reasonable judgments about that treatment, not treatment generally.
2. Check s 110S(2): are the circumstances specified in the directive actually the circumstances that have arisen?
3. Apply both limbs of s 110S(3) — unanticipated, and such as would have changed a reasonable person's mind.
4. Work through all four s 110S(4) matters, and give weight to when the directive was last reviewed.
5. For priority, go to s 110ZJ or s 110ZLA as s 110U directs.
6. Where an enduring guardian is appointed, note the default is plenary-equivalent functions unless the instrument limits them.

Self-check

• Have I applied the trigger to the specific treatment?
• Have I required both limbs of the changed-circumstances rule?
• Have I addressed review recency under s 110S(4)(c)?
• Have I cited the operative priority provision rather than s 110U alone?