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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.

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