What happens if someone loses capacity before completing the VAD process?

Australia · 29 August 2026 · 7 min read · Reviewed by Dr Kane Treble

If a person loses decision-making capacity before completing the voluntary assisted dying (VAD) process, they usually cannot continue to access VAD.

General information: This page gives general information for people in Australia. It cannot tell you exactly what will happen in one person's situation. If you have concerns about a symptom, medicine, treatment decision or change in someone's condition, contact their doctor, palliative care team, nurse or other treating health professional. VAD laws, forms and service pathways differ by state and territory, so confirm the current rules with the person's VAD practitioner or official VAD care navigator service.

If a person loses decision-making capacity before completing the voluntary assisted dying (VAD) process, they usually cannot continue to access VAD. Australian VAD laws require the person to make their own decisions and their own requests. A family member, substitute decision-maker, enduring guardian, medical treatment decision-maker or advance care directive cannot complete the VAD process for them.

Capacity can change because of the illness, medicines, delirium, infection, dehydration, organ failure, brain disease, severe distress or other causes. Some causes may improve with treatment. The treating team needs to assess the person, not assume.

VAD is operating in Victoria, New South Wales, Queensland, Western Australia, South Australia, Tasmania and the Australian Capital Territory. News reports said the Northern Territory Parliament passed VAD laws on 27 August 2026, with implementation to follow. At 29 August 2026, an official operational commencement source for the Northern Territory was not verified for these pages, so the Northern Territory is treated here as not yet operational.

What capacity means here

Capacity means the person can understand, retain, use or weigh relevant information and communicate a decision. The exact legal wording differs by jurisdiction.

For VAD, capacity is decision-specific. A person may be able to make some simple choices but not have capacity for VAD. Or they may have communication problems but still have capacity if the right supports are used.

Do not assume a person lacks capacity because they are tired, disabled, depressed, using a communication device, or need an interpreter. Also do not assume capacity is present because the person had it yesterday. If there is doubt, the VAD practitioner or treating doctor should assess it.

If capacity is lost before the process is complete

If the person no longer has capacity at a required step, the process may stop or be unable to move forward. For example, the person may not be able to make a final request, give final permission, make an administration decision, appoint a contact person, or confirm that they are acting voluntarily.

Some jurisdictions allow shortened timeframes when both assessing practitioners believe the person may die or lose capacity before the usual waiting period ends. That does not remove the need to complete the required steps. Queensland guidance, for example, says that even when a waiting period is shortened, the other steps still need to happen.

If capacity later returns, the VAD practitioner can explain whether the process can continue or whether a new request is needed. The answer depends on the jurisdiction and exactly where the person was in the process.

Advance care directives cannot request VAD

An advance care directive can guide many future healthcare decisions if the person later loses capacity. It can often record treatment refusals and values. VAD is different.

Official guidance in multiple jurisdictions says a person cannot access VAD through an advance care directive or a substitute decision-maker. VAD must be requested by the person while they have capacity and can communicate the required decisions.

This can be painful for families when the person clearly wanted VAD earlier. But the safeguard is central to Australian VAD laws: the person must remain able to choose VAD for themselves at the required time.

Communication support may help

Losing speech is not the same as losing capacity. A person may be able to communicate through gestures, writing, eye gaze, a communication board, a speech-generating device, an interpreter or a speech pathologist.

Victoria, NSW, Queensland, Tasmania and the ACT all recognise, in different ways, that requests or decisions may be communicated by means other than speech. The details differ. If speech is becoming hard, ask early for communication support.

What families can do

Families can help by calling the VAD practitioner or care navigator early if the person is becoming drowsy, confused or unable to communicate. They can also ask the treating team to check for reversible causes of confusion, such as infection, medicine effects or dehydration, where assessment and treatment fit the person's goals of care.

Families cannot make the VAD request for the person. They can still advocate for comfort care, palliative care, spiritual care, cultural support and treatment decisions that are lawful under ordinary healthcare law.

When to get help now

Contact the VAD practitioner, palliative care team or care navigator urgently if the person becomes confused, much harder to wake, unable to communicate, or seems unsure about VAD.

Call 000 if there is an immediate life-threatening emergency outside the person's expected-death plan. If the person is expected to die at home, follow the plan from the treating team.