Do I need an Enduring Guardian?

by Neville Parsons

An Enduring Guardian is a person you appoint to make decisions about your health and well-being including the medical treatment you will receive if you lose capacity to make these decisions for yourself.

Appointing your Enduring Guardian is what we refer to as one of your “Life Documents” and as it applies during your lifetime then such an appointment is not part of your Will.  It is recommended that at the time that you are organising your Will that you organise your Appointment of Enduring Guardian and also the Appointment of an Enduring Power Of Attorney to act on your behalf if you lose capacity to manage and make decisions in relation to all of your assets.

What decisions can an Enduring Guardian make?

An Enduring Guardian makes decisions about your health and well-being and specifically the medical treatment you will receive if you lose the capacity to do this yourself. These decisions can include:

• Where you live
• What healthcare you receive
• What personal services you receive; and
• The consenting to medical treatment and obtaining information in respect of medical treatment on your behalf.

Importantly, your Enduring Guardian, if you are so direct, is also able to refuse medical treatment if you are in a terminal stage and unconscious, in a vegetative state, even if that refusal was to lead to your death.

What’s the difference between an Enduring Guardian and an Enduring Power of Attorney?

An Enduring Guardian and Enduring Power of Attorney are complimentary documents.

An Enduring Guardian can make medical and life decisions once you lose capacity. A Power of Attorney can make financial and business decisions dealing with your assets once you lose capacity.

These two documents can be made separately or together. This gives you the choice over who has authority to make decisions across all areas of your life, at a time that you are incapable of making such decisions.

Important information about Enduring Guardians

• You must place the utmost trust in the person who you select to act in this critical role as this person will make crucial, legally binding decisions about your life.
• We recommend you have a conversation with your Enduring Guardian and family concerning decisions about your life, so that everyone is aware of your wishes.
• An Enduring Guardianship can only come in to affect if or when you lose capacity and will only be affective during the period of incapacity; therefore, it may never become operational.
• An Advance Care Plan or Advance Care Directive is also an important planning ahead document. It does not require a witness but gives guidance to those around you when difficult health decisions need to be made. Commonly such directive states your desire to refuse medical treatment if you are in a terminal stage and unconscious, in a vegetative state, even if that refusal was to lead to your death

Potential risks if you do not have an Enduring Guardian

If you do not have an Enduring Guardian appointed and you lose capacity to make decisions for yourself then an application will need to be made to the Guardianship Division, NSW Civil & Administrative Tribunal to have Guardian appointed for you.

A Public Guardian, that is an independent public official, will be appointed by the Tribunal if you have no one suitable to be your guardian. The Public Guardian will be responsible for your medical, health and lifestyle decisions.

An Enduring Guardian, appointed by you, helps to give you a sense of security knowing that if you are unable to make decisions for yourself, you have someone you trust to make medical, health and lifestyle decisions on your behalf and have a document that outlines your wishes.

Our ‘Preparing your Wills and Estates’ e-guide will arm you with the key information you need to know about preparing your Will and Estate, download the free guide here.

Should you require any further information on Wills and Estates, please contact us on (02) 6583 0400 or info@dohlaw.com.au.