Hierarchy of Treatment Decision Makers in Western Australia
The Ranked List You Never Chose
When a patient in a WA hospital cannot make their own treatment decisions — because of unconsciousness, advanced dementia, a severe brain injury, or any other condition that removes decision-making capacity — the treating doctor does not simply decide what to do for non-urgent treatment. The Guardianship and Administration Act 1990 prescribes a strict hierarchy of substitute decision-makers that the doctor must follow, in order, until someone available, willing, and legally capable is found.
Most people do not know this list exists until they are in a hospital ward watching it play out. And the results can be deeply counterintuitive.
The Statutory Order
If no valid Advance Health Directive (AHD) covers the treatment decision at hand, the doctor must seek consent for non-urgent treatment from the first available person in this sequence:
- Enduring Guardian — appointed by the patient under an Enduring Power of Guardianship (EPG)
- Guardian with authority — appointed by the State Administrative Tribunal (SAT)
- Spouse or de facto partner — including same-sex partners, subject to the other statutory requirements
- Adult son or daughter
- Parent
- Adult sibling
- Primary unpaid carer — someone who was providing substantial day-to-day care before the incapacity
- Other person with a close personal relationship — someone who has frequent personal contact and a personal interest in your welfare
The doctor goes down the list until they find someone who is available, willing, and has the capacity to make the decision themselves. If nobody on the list is available, the doctor can apply to the SAT for an urgent guardianship appointment — which may result in the Public Advocate stepping in.
Why the Default Order Creates Problems
Three situations where this hierarchy produces outcomes families do not expect:
Spouse or de facto partners. Spouse and de facto partner are at the same hierarchy level. It does not matter whether the partners are different or the same sex, or whether either person is legally married to someone else or in another de facto relationship; the person must still meet the capacity, availability, and willingness requirements.
Adult children. All adult children have equal priority, and the doctor does not have to seek a decision from the eldest child first. Each proposed decision-maker must still meet the hierarchy's capacity, availability, and willingness requirements.
Blended families. Stepchildren are not a separate category in the listed sequence. If a stepchild does not qualify as an adult son or daughter, they may need to qualify under the final "other person with a close personal relationship" category.
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How to Override the Default
The hierarchy has a built-in override mechanism — and it is the entire reason AHDs and EPGs exist.
Option 1: Complete an Advance Health Directive. The AHD sits above the entire hierarchy. If you have documented a clear treatment decision (refuse ventilation in a persistent vegetative state, for example), the doctor follows your directive and does not need to consult anyone on the list. This is the most powerful tool available.
Option 2: Appoint an Enduring Guardian under an EPG. Your enduring guardian jumps to position 1 on the hierarchy — above your spouse, above your children, above everyone except a valid AHD. You choose the person. You define the scope of their authority. If you want your adult daughter to make medical decisions rather than your spouse, the EPG is how you make that happen.
Without either document, the statutory default governs, and you have no say in who gets asked.
What "Available and Willing" Means in Practice
The doctor does not just call the first person on the list and wait indefinitely. "Available" means contactable within a clinically reasonable timeframe. If a non-urgent decision needs to happen and the spouse cannot be reached by phone, the doctor moves to the next person on the list.
"Willing" means the person agrees to take on the decision. Some family members, when confronted with a choice about withdrawing life support, explicitly refuse to make the call. The doctor notes that refusal and moves down.
"Capacity" means the decision-maker must themselves have the cognitive ability to understand the treatment options and their consequences. An elderly spouse with advanced dementia cannot serve as a substitute decision-maker.
The Practical Gap: Nobody on the List
For people without close family — no spouse, no children, estranged from siblings — the hierarchy can run out entirely. In that case, the doctor has two options:
- Apply to the SAT for an urgent guardian appointment. The timing depends on the circumstances and the urgency.
- The SAT may appoint the Public Advocate. The Public Advocate can be appointed as guardian of last resort when no one else is willing, suitable, and available to act.
For someone in this situation, an AHD is not optional — it is the only way to ensure their own treatment preferences are followed.
Taking Control of the Hierarchy
The hierarchy is a safety net, not a planning tool. It exists to make sure someone can make decisions when you have not specified who. The moment you complete an AHD and appoint an enduring guardian, you have replaced the state's default with your own choices.
The Western Australia Advance Directive & Living Will Kit includes a decision-maker evaluation worksheet, a hierarchy reference card you can keep in your wallet, and step-by-step guides for both the AHD and EPG — so your preferences, not the statutory default, govern what happens.
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