In Western Australia, the Voluntary Assisted Dying Act 2019 (WA) governs Eligibility for Voluntary Assisted Dying (VAD). Section 16 outlines the strict eligibility criteria: an individual must be 18 or older.

When making their first request, the applicant must be an Australian citizen or a permanent resident who has lived in Western Australia for at least 12 months.

They must have a disease or condition that:

  • is advanced, progressive, and terminal.
  • is likely to cause death within six months, or 12 months for neurodegenerative conditions.
  • is causing suffering that cannot be relieved in a way they consider tolerable.
  • they have the capacity to make decisions about VAD.
  • the decision must be voluntary, without coercion, and enduring.

Importantly, disability or mental illness alone does not qualify someone for VAD.

Background

NJ, a 77-year-old woman diagnosed with progressive supranuclear palsy (PSP), suffers from a degenerative condition impacting her mobility, balance, and cognition, as well as chronic pain. Her children—EV, KL, and DE—have supported her in caregiving and decision-making roles.

Tribunal Involvement and Guardianship:

  • Initial Tribunal Referral (May 2024): NJ came to the Tribunal’s attention while hospitalised at Hospital A, NJ’s medical team was uncertain about her decision-making capacity concerning discharge. NJ had sustained multiple falls, including a skull fracture.
  • First Enduring Power of Guardianship (2023): NJ appointed daughter DE as guardian. For DE to make decisions regarding NJ’s discharge, the Tribunal declared NJ incapable of making reasonable personal judgments. Member Bunney made that declaration.
  • VAD Interest and Advance Directive: NJ expressed a wish to pursue Voluntary Assisted Dying (VAD) and made an Advance Health Directive refusing life-prolonging treatment. However, in May 2024, Dr W Jul confirmed NJ did not meet VAD eligibility due to her prognosis not being within 12 months, despite having capacity.

Financial Concerns and Further Proceedings:

  • Concerns Over Financial Management: In November 2024, son EV applied to the Tribunal over concerns about DE’s handling of NJ’s finances under an Enduring Power of Attorney (EPA). At the January 2025 hearing, NJ claimed improved capacity.
  • Interim Arrangements: The Tribunal adjourned the matter for a capacity assessment and appointed KL as interim administrator under the Guardianship and Administration Act 1990 (WA) due to NJ’s expressed wish that DE not continue as attorney.

Final Orders and VAD Implications:

  • April 2025 Hearing: By this time, NJ’s condition had worsened, and she was hospitalised again. The VAD team at Hospital B found her ineligible for assessment due to the earlier incapacity declaration.
  • Tribunal Response: On 4 April 2025, the Tribunal revoked the prior incapacity declaration and appointed KL as NJ’s guardian and administrator. The Tribunal indicated it would later provide written reasons to explain how the new orders protect NJ without restricting her eligibility for VAD assessments, which the declaration of incapacity had previously blocked.

Decision-Making Capacity: Legal Standards and Practice

Under s 6 of the VAD Act, a person has capacity if they can:

  • Understand information relevant to VAD,
  • Understand the consequences,
  • Weigh relevant factors, and
  • Communicate their decision.

There is a legal presumption of capacity unless proven otherwise.

Even if someone is under a guardianship or mental health order, it does not automatically exclude them from VAD. However, such orders may inform the assessment of capacity. People are encouraged to have such orders reviewed before making a VAD request.

The Guardianship and Administration Act 1990 (WA) and common law also support the presumption of capacity. However, they highlight that capacity is decision-specific and exists on a spectrum. For example, someone may lack the capacity to decide where to live but still be capable of making specific medical decisions, such as whether to pursue VAD.

Comparative Approaches in Other States

VAD is legal across all Australian states and is being implemented in the territories. It enables eligible individuals facing terminal illness and intolerable suffering to choose to end their lives with medical assistance.

Key Points:

  • National Legal Status: VAD is legal in all Australian states. The ACT’s legislation will commence on 3 November 2025, and the Northern Territory is considering similar laws.
  • Eligibility Criteria: To access VAD, a person must:
    • Be an adult with decision-making capacity;
    • Suffer from a terminal illness or condition causing unbearable suffering;
    • Have a prognosis of death within a defined period (usually 6–12 months).
  • Approval Process: Two independent medical practitioners must assess the person to confirm eligibility and ensure the request is voluntary, informed, and consistent over time.
  • Safeguards: Laws include strict checks to prevent coercion or undue influence and to ensure the decision is made freely.
  • State Residency: access is available to residents or those with a substantial connection to the state, even if they live elsewhere.
  • Telehealth Restrictions: A 2023 court decision ruled out the use of telehealth for VAD consultations, though a 2024 bill seeks to legalise this access method.
  • Administration of Medication: Depending on the jurisdiction, patients may choose to self-administer the prescribed medication or have it administered by a doctor.

This legal framework balances autonomy for the terminally ill with rigorous oversight to safeguard ethical and responsible use.

Medical vs Legal Capacity Determinations

While guardianship tribunals may determine capacity in a broad sense, such as whether someone can manage their affairs or make personal decisions, only medical professionals with VAD expertise are authorised to assess capacity to access VAD.

In NJ’s case, the declaration made under guardianship law did not automatically exclude NJ from being found to have capacity under the VAD Act if a later assessment supported that view.

Stage 1: Assessing the Necessity of a Guardian

The initial step in the Tribunal’s process involved determining whether NJ lacked the capacity to make personal decisions, as outlined in the Guardianship and Administration Act 1990 (WA) (GA Act). The Tribunal considered medical evidence and NJ’s circumstances to ascertain if NJ warranted a guardianship order.

Key Considerations

  • Capacity Assessment: Medical evaluations indicated that NJ’s cognitive abilities had deteriorated, impairing her decision-making capacity.
  • Least Restrictive Option: The GA Act mandates that any intervention must be the least restrictive alternative. The Tribunal explored whether informal support or existing legal instruments could suffice.
  • Existing Legal Instruments: NJ had executed two Enduring Powers of Guardianship (EPGS). However, issues with their validity and execution rendered them ineffective.

Given NJ’s diminished capacity and the lack of valid EPGs, the Tribunal concluded that appointing a guardian was necessary to safeguard her welfare.

Stage 2: Determining the Appropriate Guardian and Their Functions

With the necessity of a guardian established, the Tribunal proceeded to identify a suitable individual for the role and delineate the scope of their authority.

Selection of Guardian:

  • Nominee Evaluation: KL, NJ’s niece, was the sole nominee. The Tribunal assessed her suitability based on her relationship with NJ, her understanding of NJ’s needs, and her willingness to act in NJ’s best interests.
  • Tribunal’s Findings: KL demonstrated patience, compassion, and a clear understanding of NJ’s circumstances. KL was involved in NJ’s care and had taken steps to honour NJ’s wishes, such as implementing a ‘do not resuscitate’ directive.

Assigned Functions

The Tribunal granted KL authority over specific areas critical to NJ’s well-being including:

  • Accommodation Decisions: concerning NJ’s living arrangements, including hospital discharge and potential admission to aged care facilities.
  • Service Coordination: KL could arrange and manage services essential to NJ’s care, such as hiring private caregivers.
  • Consent to Restrictive Practices: Recognising NJ’s episodes of agitation, the Tribunal authorised KL to consent to the use of chemical restraints in aged care settings, in compliance with the upcoming Aged Care Act 2024 (Cth), which requires informed consent for such practices.

Stage 3: Appointing a Financial Administrator

Beyond personal care, NJ’s financial affairs required oversight due to her impaired capacity to manage them.

Assessment of Financial Capacity

Medical evaluations confirmed NJ’s inability to handle her financial matters, necessitating the appointment of an administrator under the GA Act.

Appointment of Administrator

  • Nominee Evaluation: The Tribunal considered KL a financial administrator and assessed her financial acumen, trustworthiness, and ability to manage NJ’s assets responsibly.
  • Tribunal’s Findings: KL demonstrated competence in financial matters and a commitment to NJ’s best interests. Member Bunney identified no conflicts of interest.

Assigned Financial Functions

KL was granted authority to:

  • Manage NJ’s bank accounts and financial transactions.
  • Pay bills and manage expenses related to NJ’s care.
  • Oversee investments and property matters, ensuring NJ’s assets are used appropriately for her benefit.

Conclusion: Ensuring NJ’s Comprehensive Care

The Tribunal’s thorough approach in appointing KL as both guardian and financial administrator underscores the importance of safeguarding the rights and well-being of individuals like NJ. By carefully evaluating the necessity, suitability, and scope of authority, the Tribunal ensured that KL would meet NJ’s needs with compassion and competence.

Does NJ Need Assistance or Just a Guardian?

While it was clear that NJ needs help with personal decisions, especially those involving her health, safety and care arrangements, the Tribunal had to consider whether a formal guardianship appointment was necessary. Importantly, NJ maintained that she could make her own decisions and opposed the appointment of a guardian.

Enduring Powers of Guardianship – Are They Viable Alternatives?

The Tribunal examined two enduring powers of guardianship (EPG):

  • The First EPG, which appointed NJ’s daughter DE, was not considered a less restrictive option. A key issue was that this EPG included a declaration that had the unintended effect of blocking NJ from being assessed for voluntary assisted dying (VAD). NJ also clarified that she did not want DE involved in her affairs. As a result, the Tribunal revoked the First EPG.
  • The Second EPG, signed later, was also found invalid due to improper witnessing – the authorised witness failed to sign the document. For clarity, the Tribunal revoked this EPG as well.

Even if the Second EPG had been valid, the GA Act does not automatically revoke an earlier EPG unless explicitly stated. That means NJ could have had two conflicting EPG operating simultaneously – a situation the Tribunal aimed to avoid.

Capacity to Sign Enduring Documents

While NJ did have capacity when the EPG were executed in early 2023 (as confirmed by neuropsychologist Dr C), her condition has since deteriorated. Both geriatricians, Dr H and Dr W, now agree NJ no longer has the capacity to sign a new EPG or enduring power of attorney.

Future Medical Decisions – Does the Advance Health Directive Help?

NJ executed an Advance Health Directive (AHD) in October 2023, refusing life-prolonging treatment. Under the GA Act, health professionals must comply with a valid AHD unless circumstances have changed. For treatment decisions not covered by the AHD, doctors can rely on NJ’s “person responsible” (usually her children) under s 110ZD GA Act. While this informal arrangement can cover some situations, it doesn’t offer the same legal authority or continuity as a formal guardian.

Are Informal Arrangements Enough?

Given NJ’s complex care needs and difficulty retaining carers, informal family arrangements were insufficient. There was a real risk to her well-being without clear oversight.

Guardianship and Administration Tribunal: Key Orders Regarding NJ

In NJ [2025] WASAT 35, the Western Australian State Administrative Tribunal made several important decisions concerning the personal and financial affairs of NJ, who Member Bunney found unable to make reasonable decisions due to a mental disability.

Administration of NJ’s Estate

The Tribunal formally declared that NJ cannot make sound decisions about her financial affairs and requires an administrator.

Member Bunney revoked the previous administration order (made on 21 January 2025).

KL was appointed plenary administrator of NJ’s estate, with full powers under the Guardianship and Administration Act 1990 (WA). Plenary administrators are designated to safeguard the financial and legal interests of individuals who cannot manage their affairs.

KL is also authorised to spend up to $18,000 annually from NJ’s estate for gifts on her behalf.

Member Bunney revoked two previous enduring powers of attorney, one appointing DE (dated 10 February 2023) and another appointing KL and EV jointly (dated 8 October 2023). The Tribunal will review the administration order in April 2030.

Guardianship of NJ

The Tribunal found that NJ is unable to manage her health and safety and requires someone to make certain personal decisions for her.

The Tribunal will appoint KL as a limited guardian, with authority to:

  • Decide where NJ should live (permanently or temporarily),
  • Decide who she should live with.
  • Determine what services she can access.
  • Give or withhold consent for using restrictive practices in compliance with federal aged care law.
  • The Tribunal will review the guardianship order in April 2030.

Enduring Powers of Guardianship Revoked

Upon application by EV, the Tribunal revoked both:

  • The enduring power of guardianship from 10 February 2023 (appointing DE),
  • The enduring power of guardianship from 8 October 2023 (appointing KL).

Tribunal’s Previous Declaration Revoked

On NJ’s application, the Tribunal revoked its previous declaration (dated 22 May 2024), which had brought an enduring guardianship into effect. That earlier declaration was due to hospital concerns about NJ’s ability to make decisions about discharge, housing, and support services.

Conclusion

Despite NJ’s opposition, the Tribunal found no less restrictive alternative could meet her ongoing needs for personal decision-making, health care, and care coordination. With both EPG revoked and informal arrangements inadequate, appointing a guardian was found to be necessary and in NJ’s best interests.

Final Thoughts

Accessing VAD in Western Australia requires more than a desire to end one’s life; it involves meeting strict eligibility and capacity standards. Medical professionals, not tribunals, are the ultimate decision-makers on VAD capacity. Individuals under legal orders can seek assessment. However, they may need to apply for reviews to clarify or restore their eligibility.

NJ [2025] WASAT 35 underscores the need for clear medical, legal, and personal planning, particularly in later life, to ensure a person’s wishes regarding end-of-life choices are respected.

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