Renee Stevens from SRM Lawyers (located in Lane Cove) is ITC’s legal eagle and she explains some steps you should put in place when you are unable to make your own health decision. Take it away Renee….
The role of an enduring guardian
When we talk to clients about their estate planning needs, many assume that they don’t need to appoint an enduring guardian if they already have an enduring power of attorney. It’s actually important to have both appointments in place as they do different things.
An enduring power of attorney enables another person to manage your legal and financial affairs, including buying and selling real estate, shares and other assets, operating your bank accounts and spending money on your behalf. It does not allow that person to make any decisions about your lifestyle, medical treatment or welfare. That’s where an appointment of enduring guardian document becomes important.
A person appointed as an enduring guardian can make lifestyle and health decisions on your behalf in the case of your mental incapacity. Unlike an enduring power of attorney where you can choose when the appointment comes into effect, an enduring guardian can only act on your behalf when you lose capacity and become unable to make your own medical or lifestyle decisions. Such decisions include where you should live, what health care you’ll receive, what kind of personal services you’ll receive and consent for medical and dental treatment.
Can’t my next of kin do that?
The term ‘next of kin’ has no legal status in Australia, but there is a process for substitute decision making that applies to all adults in NSW if an appointment of enduring guardian is not in place. If the person does not have a spouse or de facto spouse, an unpaid carer becomes responsible but if there is no unpaid carer, then a close friend or relative becomes responsible.
What if you don’t want your spouse to make decisions on your behalf, or you have very specific wishes about how you’d like to be cared for? You may have a close friend that you want to make health and lifestyle decisions on your behalf. You should set your wishes out in an Appointment of Enduring Guardian so there can be no arguments or concerns about how you should be cared for. This document will trump any potential decision-making by others, including your partner.
When deciding who you should appoint as your enduring guardian, you should consider that person’s ability to make difficult decisions in potentially emotional circumstances. Does that person understand your needs, wishes, values and beliefs? Will the person be easily contactable if a decision needs to be made?
Make your wishes known
Consider the example of James. He is in his late 50’s and is divorced. He has no children and his parents have both died. James does not get on with his two sisters but he is very close to his adult nephew, Cameron. If James has an accident or develops dementia, he doesn’t want his sisters making health and lifestyle decisions on his behalf, but he is confident that Cameron understands his needs, wishes, values and beliefs. He should appoint Cameron as his enduring guardian so that there is no question about who has the legal authority to make decisions on James’ behalf.
Some people are happy to put an appointment of enduring guardian document in place and leave all required medical and lifestyle decisions up to their guardian. Other people, however, have very clear ideas about the treatments and care they would like or would refuse in the face of a life-threatening illness or injury. In that case, you may wish to direct your enduring guardian to refer to an Advance Care Directive when making health care and medical decisions. A valid Advance Care Directive must be followed. No one can override it, including your legally appointed guardian.
You can appoint more than one enduring guardian and you can also appoint one or more substitute guardians, if the original enduring guardian dies, resigns or becomes incapacitated.
You can revoke (cancel) the appointment of an enduring guardian at any time, provided you continue to have capacity to make these decisions. It’s also important to know that if you marry after appointing an enduring guardian, the appointment is automatically revoked or cancelled, unless you marry the appointed enduring guardian.
If you’re unable to make your own decisions because of a temporary or permanent loss of capacity, you can’t always be sure that your informal support networks or people important to you will be able to make significant decisions on your behalf. Adults at all stages of life should have both an enduring power of attorney and an appointment of enduring guardian in place. It can be tempting to put these off until a later time but unexpected events happen and it’s best to be prepared by taking control of your future needs, as best you can.
Please don’t hesitate to contact SRM Lawyers if you have any questions about the above. You might also speak to them about making a will.
Address: Level 1, 102-104 Longueville Road
Website: SRM Lawyers
Phone: 02 9188 9631
Mobile – 0419 257 392
Email – [email protected]
Mobile – 0410 466 286
Email – [email protected]
Linked In: SRM Lawyers
This is advice of a general nature, this article does not constitute legal advice and is not meant to be complete or exhaustive.
This is a sponsored post. SRM Lawyers are ITC Gold Sponsors. Thank you to all our ITC Gold Sponsors who support ITC. This support enables us to to fund our website and our community work. #itcgoldsponsors