Enduring guardianship

Most people know the importance of having a current will, to ensure your wishes are carried out should you die. However, arrangements for decision-making should you lose your mental capacity may be just as important.

With advances in modern medicine, this situation is occurring more and more frequently.  People may temporarily or permanently lose mental capacity, and when this occurs their affairs may be held in limbo. Of course, a will has no legal effect while you are still alive.

What is enduring guardianship?

Many people know about the need for enduring Powers of Attorney, where a loved one is given the power to sign documents for a person who does not have the mental capacity to sign. This allows the person’s financial affairs to be adequately looked after in the case of loss of capacity.

However, less well known is the fact that powers of attorney do not cover lifestyle decisions.  You should have someone with the power to make decisions for you. This is done through enduring guardianship, also known as a living will. If you lose your mental capacity, this covers decisions such as where you live, which doctors you see, and what health care you receive.  You are also able to give your guardian additional functions or leave directions as to your wishes. As part of this, an appointment of enduring guardian can allow you to set out any views you have as to discontinuance (or continuance) of life support in certain situations.

It is generally assumed that, if you lose your mental capacity, your lifestyle decisions are made by your next of kin. This is not true (except in the case of medical and dental treatment) unless you have signed an enduring guardianship document

Obviously, it is preferable for the fundamental decisions in your life to be made by those you know and trust. If there is no enduring guardianship document, a family member or anyone else can make an application to the Tribunal known as NCAT for an order appointing them as guardian as guardian of a person who has lost capacity. However, signing and enduring guardianship before you lose your mental capacity avoids the expense and uncertainty of an application to the Tribunal.

How do you appoint an enduring guardian?

An enduring guardian is appointed under a document prepared by your solicitor which sign in the presence of your solicitor. The law prescribes the form of the document and how it must be witnessed.

More than one guardian can be appointed, and the document can provide for substitute guardians, should the guardians you appoint be unable or unwilling to act.

Sometimes, people leave it too late. In order to sign a valid enduring guardianship appointment, the solicitor witnessing the document must be able to verify that you have an understanding of what you are signing. Once you are beyond that point, no valid enduring guardianship document can be signed.

Choosing your enduring guardian

Most people choose their spouse or partner. However, the choice is entirely yours. The person you appoint will need to understand your values, morals and wishes.  When choosing a guardian, you should consider:

  • the age, health and stability of your proposed guardian;
  • whether your proposed guardian shares similar values and / or will be able to make decisions in accordance with your wishes and requirements;
  • the geographic location of your guardian – it may not be practical to appoint somebody residing in another state, particularly if urgent health care decisions need to be made.

If you appoint more than one enduring guardian, the document should state whether they are jointly or severally. In other words, can either of them make decisions, or must they agree on any relevant decision.

The powers of your enduring guardian

Your appointment can include specific directions about your future treatment, for example, that you continue receiving services from a certain health care provider. You may also include the type of treatment you are willing to accept or refuse, for example you can state that if you are seriously ill with no chance of recovery, you do not wish to be subjected to treatment unlikely to meaningfully prolong your life. However, of course, you may not instruct your guardian to exercise any illegal functions, such as euthanasia.

When exercising their functions, they must follow the general principles set out in the Act which include:

•   ensuring that the person’s freedom of decision-making and action is restricted as little as possible;

•   encouraging, wherever possible, the person to live a normal life in the community and to be self-reliant in matters concerning their personal, domestic and financial affairs;

•   taking into consideration the views of the person when exercising their functions;

•   preserving family relationships and cultural and linguistic environments;

•   protecting the person from neglect, abuse and exploitation.

Conclusion

An Appointment of Enduring Guardian form is different from a Power of Attorney.  Both are vital companions to your will when planning for the future.

If you wish to discuss appointing an enduring Power of Attorney or enduring guardian, please contact Stephen LynchPhoebe Mayson or Emily Priestley, or contact us on (02) 9923 2321 or enquiries@somervillelegal.com.au.

 

 

 

 

 

 

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