Parents or Guardians consenting to child’s medical treatment

The area of consent to medical treatment can be a complicated area. Generally, parents have the power and responsibility over their children in relation to healthcare. However, this power does not extend to consenting to any and every treatment, or refusing some types of treatment. Additionally, some types of treatments are simply not within the scope of parental power, and a court order must be sought. Another limiting factor is when the child becomes competent themselves to consent or refuse medical treatment.

In Western Australia the age at which a child becomes an adult (the age of majority) is 18 years old. The landmark court case of Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 determined that a child can be competent to make their own decisions about treatment even before the age of 18. This occurs when the child “achieves sufficient understanding and intelligence to understand fully what is proposed”. If a child is Gillick competent then the parents’ power terminates, and the child makes the decisions. Determining when a child is Gillick competent can be problematic, and always depends on the circumstances of each case. Although chronological age still plays a part in determining Gillick competence, it also includes other factors such as maturity and psychological assessments.

Most everyday medical decisions are within the power of parents to make. For example, immunisations and medication are within the power of parents to consent to or refuse on behalf of the child. However, there are certain procedures which are considered ‘special cases’ that parents are not at liberty to consent to. This includes procedures such as non-therapeutic sterilisation and termination of a pregnancy. In these cases parents must apply to court for authorisation.

Another important limitation on the parent’s right to consent on behalf of the child and make medical decisions, as well as the competent child making their own decisions, is the power of the court to overrule these decisions. The court will do this sparingly, and will exercise caution in doing so. However, the court will make such orders when it deems it in the best interests of the child and for the child’s welfare. This can occur, for example, where the parents are refusing life-saving treatment and the court considers that it is in the best interest of the child to receive the treatment.

Therefore, there are many limits to a parent’s general power to consent or refuse medical treatment. For example, where the child is determined competent the parent can no longer make decisions on their behalf. A family lawyer can provide advice as to what the court will consider in determining the question over competency as well as any necessary court applications. This area can become complex in certain cases and it is reassuring to have a supportive family lawyer assist you in these difficult matters.

Intestacy

Intestacy occurs where a person dies without dealing with any or all of his or her property. The most common example of intestacy is where person dies leaving no will. In this case, the person is fully intestate. Where a person makes a valid will but fails to deal with all of their property there may be a partial intestacy. For example, Mr Smith passes away. At his death he owns a house in Mt Lawley, a boat and has money in a Bankwest savings account. Mr Smith made a valid will which states only “I leave my house to my son Sam Smith” but does not deal with his other property. In this case, Mr Smith is partially intestate. Although he has made a valid will, it does not mention his boat or savings.

Claims against your estate

The Inheritance (Family and Dependants Provision) Act 1972 (WA) allows an eligible person to make a claim against a deceased’s person’s estate where adequate provision was not made for the proper maintenance, support, education or advancement in life of the applicant. A claim under this act may be made regardless of whether the deceased executed a will or died intestate (without a will).The court is given a wide discretion to make adequate provision and may override the provisions of a will when necessary. Although the discretion given is broad, the court usually exercises its powers cautiously in order to avoid unnecessarily ‘re-writing the will’ of the deceased.

Enduring Powers of Attorney

An Enduring Power of Attorney (EPA) can be an effective way to ensure that your affairs are properly taken care of if you become incapacitated. An EPA may be made by anyone over the age of 18 with legal capacity. An enduring power of attorney continues to operate when the person who made it loses legal capacity.

Jurisdiction over de facto relationships

Since the introduction of the Western Australian legislation governing de facto relationships, family lawyers in Perth have assisted de facto partners in property matters, mediation and litigation. A de facto relationship is where two individuals live together in a marriage-like relationship. There are no specific requirements for a relationship to be deemed ‘de facto’, although there are many relevant factors taken into account such as the duration of the relationship, degree of financial dependence, and caring for children.

Are you in a de facto relationship?

Since the introduction of legislation governing de facto relationships, family lawyers in Perth have assisted de facto partners in property matters, mediation and litigation. De facto relationships come in many shapes and forms and there is no single factor that determines if a particular relationship is de facto. However, generally a de facto relationship is where two individuals live together in a marriage-like relationship. The sex of the parties is immaterial. Therefore, there can be a de facto relationship between different and same sex couples. There can also be a de facto relationship where one of the parties is legally married to someone else, or is also in another de facto relationship.

Changing your Magistrate or Judge

Family Lawyers in Perth are often consulted by parties in family law proceedings who feel that their matter would have been determined differently had they been allocated a different magistrate or judge. There is no general procedure that allows a person to pick and choose who handles their case. Of course, practically speaking, if parties were allowed to change their decision makers every time they felt hard done by the Court could not function. It is not workable or just to allow a party to pick and choose who decides their matter. The Court usually adopts the idea that it is more efficient for the parties and the court that one person deals with one matter from start to finish.