Guardianship and Administration Act 1990

A treatment decision in an advance health directive operates in respect of the treatment to which it applies —

at any time the maker of the directive is unable to make reasonable judgments in respect of that treatment; and

as if —

the treatment decision had been made by the maker at that time; and

the maker were of full legal capacity.

Subject to subsection (3), a treatment decision in an advance health directive operates only in the circumstances specified in the directive.

Subject to subsection (4), a treatment decision in an advance health directive does not operate if circumstances exist or have arisen that —

the maker of that directive 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.

In determining whether or not subsection (3) applies in relation to a treatment decision that is in an advance health directive, the matters that must be taken into account include the following —

the maker’s age at the time the directive was made and at the time the treatment decision would otherwise operate;

the period that has elapsed between those times;

whether the maker reviewed the treatment decision at any time during that period and, if so, the period that has elapsed between the time of the last such review and the time at which the treatment decision would otherwise operate;

the nature of the condition for which the maker needs treatment, the nature of that treatment and the consequences of providing and not providing that treatment.

For the purpose of determining whether or not subsection (3) applies in relation to a treatment decision that is in an advance health directive, subject to the terms of the directive, any of the following persons may be consulted —

if the maker has an enduring guardian — the enduring guardian;

if the maker has a guardian — the guardian;

a person who has a relationship with the maker described in section 110ZD(3)(a) to (d);

any other person considered appropriate in the circumstances.

Subject to section 110T, a treatment decision in an advance health directive is taken to have been revoked if the maker of the directive has changed his or her mind about the treatment decision since making the directive.