Wills, Estate and Succession Planning Special Counsel, Janene Bon, and Lawyer, Jordan Schweitzer, outline the Voluntary Assisted Dying (VAD) laws that have come into effect in Western Australia and if they will impact Advanced Health Directives, Enduring Powers of Guardianship and Wills.
The Voluntary Assisted Dying Act 2019 (WA) (VAD Act) came into effect in Western Australia on 1 July 2021. Euthanasia and suicide are not new concepts and how they are dealt with in the law is well known. However, they are different to Voluntary Assisted Dying (VAD) and the impact and treatment of VAD in related areas of law are not so well known, given this is such new legislation.
The VAD Act provides people in Western Australia who are diagnosed with a terminal illness, disease or medical condition that will likely cause death within 6 to 12 months, depending on the condition, or who are experiencing intolerable suffering, to legally end their lives.
Now that the VAD Act is being used in WA, how does the VAD Act impact a person’s Enduring Power of Guardianship (EPG) and Advanced Health Directive (AHD)? Both of these documents deal with consent to future medical treatment when a person is not able to provide their consent. Does VAD effect a person’s Will or estate? Some questions that have been asked are:
- Can I consent to VAD in my AHD?
- Can I give my guardian the power to seek VAD on my behalf by my EPG when I can no longer take that action?
- Can my Will be invalidated if I access VAD?
VAD, EPGs, and AHDs
These questions have been contemplated by the drafters of the VAD Act. Section 3B of the Guardianship and Administration Act 1990 (WA) (G & A Act) stipulates that nothing in that Act authorises the making of a treatment decision in an AHD or otherwise in relation to VAD.
Additionally, a person must have what is known under the VAD Act as “decision-making capacity” at the time they apply for VAD which means they must have the capacity to:
- Understand the information or advice regarding VAD;
- Understand the matters involved in, and effect of, VAD;
- Weigh up the above matters in the course of their decision; and
- Communicate that decision.
As a person’s EPG and AHD only come into effect after a person loses their capacity to make, or consent to treatment decisions themselves, they also effectively lose access to VAD under the VAD Act if they have lost this capacity. It is also important to note that:
- VAD is not included in the definition of medical “treatment” for the purposes of the EPG and AHD provisions under the G & A Act;
- A person cannot give consent to VAD that may occur after that person has lost the capacity to apply for VAD in the future; and
- Consent to VAD must be given by the person while they have the legal capacity to give such consent and in accordance with the provisions of the VAD Act.
Can my Will be invalidated if I use VAD?
The law relating to the validity of a Will has not been changed by the VAD Act. The way in which a person dies does not affect the validity of their Will. The Will only takes effect after a person’s death, regardless of the cause. The relevant considerations in determining whether a Will is valid are:
- Whether the formal requirements of making a Will have been satisfied (e.g. has the Will has been signed and witnessed correctly); and
- Whether the capacity requirements have been met (i.e. did the person have the required capacity to make or amend their Will).
If a person has accessed VAD, where capacity is a requirement, then it is arguable they should also have the necessary capacity to make their Will if made at around the time they commenced the VAD process.
The VAD Act provides people in Western Australia with the ability to legally end their lives if they comply with the requirements of the Act. VAD cannot be consented to by a guardian acting under an EPG or contemplated by an AHD. The Will of a person who ends their life by VAD will not be invalidated or affected by this.
The EPG and AHD are documents that cover different situations to the VAD Act. Although you cannot consent to, or provide authority for another person to arrange VAD on your behalf in an AHD or EPG, these documents are still necessary to appoint someone to make medical treatment decisions for a person in the event of their incapacity or to set out what medical treatment is consented to or not consented to in the event of a person’s incapacity.
Our team is highly skilled and experienced in advising on all aspects of Wills, Estate, and Succession Planning. Contact us today if you need advice or representation in this area.