Guardianship and Advance Health Directives: Protecting Your Loved Ones
When it comes to planning for the future, most people think about wills and inheritance. But what happens if you become unable to make decisions for yourself while you’re still alive? This is where guardianship and advance health directives (AHDs) play a crucial role. Without them, your loved ones could face court battles, confusion, and healthcare decisions that go against your wishes.
In Western Australia, guardianship and AHDs are essential tools for protecting your health, well-being, and lifestyle matters if you lose the ability to make decisions. In this blog, we’ll explore real-life cases where the absence of clear guardianship led to chaos, and we’ll explain how you can avoid these issues with proper planning. See more on our services page for advance health directives and also our services page for enduring documents.
What Is Guardianship?
Guardianship refers to the legal authority to make decisions on behalf of someone who can no longer make decisions for themselves due to illness, injury, or cognitive decline. If a person has not appointed a guardian in advance, the WA State Administrative Tribunal (SAT) may step in to appoint one. This process can be lengthy, stressful, and unpredictable.
A guardian can make decisions about:
• Living arrangements (e.g., where you will live if you can no longer live independently)
• Medical treatment (e.g., what treatment to accept or refuse)
• Lifestyle decisions (e.g., what daily activities you engage in)
Without a clear, pre-appointed guardian, these decisions may be made by a court-appointed individual, which may not reflect your preferences.
What Is an Advance Health Directive (AHD)?
An advance health directive (AHD) is a legally binding document where you outline your preferences for medical treatment in case you lose the capacity to communicate your wishes. It tells doctors, family members, and carers what medical care you do or do not want in specific scenarios, such as resuscitation, life support, or pain management.
Unlike a guardianship order, which appoints someone to make decisions for you, an AHD clearly states your own wishes. It’s especially useful if you want to refuse certain medical treatments or if you have strong feelings about end-of-life care.
Case Study 1: The Family Dispute Over Medical Treatment
When 75-year-old Margaret suffered a stroke, she was unable to communicate or make decisions for herself. Her two adult children had opposing views on what treatment she should receive. Her daughter wanted “everything possible” done to extend Margaret’s life, while her son argued that his mother wouldn’t have wanted to live on life support.
Because Margaret had no advance health directive in WA, the hospital sought guidance from the SAT. The legal process delayed treatment decisions, causing emotional distress for the family. Eventually, the court granted guardianship to her daughter, who insisted on life-sustaining treatment. Her son walked away feeling betrayed, and the family relationship remains fractured to this day.
Lesson 1: Make Your Medical Wishes Clear with an Advance Health Directive
By creating an AHD, Margaret could have made her medical wishes clear. An AHD provides specific guidance to healthcare providers and family members, reducing confusion, disputes, and unnecessary delays. If you have strong views about end-of-life care, an AHD is essential. An estate lawyer in Perth can help you create an AHD that reflects your personal values and ensures your healthcare wishes are respected.
Case Study 2: The Battle for Guardianship
John, 68, was diagnosed with early-onset dementia. As his condition worsened, his two sons, Liam and Mark, fought over who should make decisions on John’s behalf. Liam wanted John to move into a residential aged care facility, but Mark believed John should remain at home with private care. Without a legally appointed guardian, the dispute escalated to the SAT.
After months of hearings, the tribunal appointed a professional guardian from the Office of the Public Advocate to take over decision-making. This decision angered both sons, as they felt excluded from the process. Worse still, John’s personal preferences were never considered, as he had lost the capacity to express them.
Lesson 2: Appoint a Guardian Before It’s Too Late
If John had appointed a guardian using an enduring power of guardianship, he could have chosen someone he trusted to make decisions for him. This would have avoided costly delays, family disputes, and loss of control over his living arrangements. If you want your family to avoid court involvement, speak to an estate lawyer in Perth about creating an enduring power of guardianship.
Case Study 3: The Unwanted Medical Treatment
Sarah, 62, was diagnosed with a terminal illness. She had made it clear to her close friends that she didn’t want to be kept alive using life support. Unfortunately, Sarah never created an advance health directive (AHD) to formalise her wishes. When she lost consciousness after a health episode, doctors made the decision to put her on life support because her family couldn’t reach an agreement on what to do.
Sarah remained on life support for weeks, even though it went against her personal beliefs. Her family later learned that an AHD could have prevented this situation entirely by giving medical staff clear instructions on Sarah’s healthcare preferences.
Lesson 3: Avoid Unwanted Treatment by Creating an AHD
If you have clear views on life support, organ donation, or palliative care, make sure you formalise them in an AHD. Without one, doctors are required to follow hospital policy or consult with family members who may not agree on the best course of action. By creating an AHD, you regain control of your healthcare, even when you’re unable to communicate.
You should also register as an organ donor at Donatelife to record this wish as well.
How to Protect Your Loved Ones with Guardianship and AHDs
If you want to avoid family disputes, costly court battles, and unwanted medical decisions, here’s what you should do:
1. Create an Advance Health Directive (AHD)
An AHD outlines your healthcare preferences in case you become unable to communicate. It addresses issues like life support, resuscitation, and palliative care. By working with an estate lawyer in Perth, you can ensure your AHD is clear, valid, and legally binding.
2. Appoint a Guardian with an Enduring Power of Guardianship
Choose a trusted person to make decisions about your care, living arrangements, and medical treatment. This can prevent court intervention and family conflict. An enduring power of guardianship is a simple yet powerful document that provides peace of mind.
3. Talk to Your Family
Family members often make assumptions about your healthcare preferences. By discussing your wishes in advance, you reduce the chance of misunderstandings.
4. Update Your Documents as Life Changes
Major life events like illness, marriage, or the birth of children may affect your preferences for medical care. Keep your AHD and guardianship documents up to date.
Why Act Now?
Life is unpredictable. If you were to lose decision-making capacity tomorrow, would your loved ones know what to do? Without clear instructions, your family could face months of legal proceedings, emotional stress, and costly court battles. But with an AHD and an enduring power of guardianship, you can regain control.
At Bechelet & Co, our estate lawyers in Perth can help you create a legally binding Advance Health Directive and Enduring Power of Guardianship.
We offer a complimentary 15-minute consultation to guide you through the process.
See more on our services page for advance health directives.
Book your free consultation today:https://bechelet.co/contact