When making estate plans, many people under-estimate the importance of appointing an enduring guardian.
An enduring guardian can make lifestyle, health and medical decisions on your behalf if you lack the capacity to make those decisions yourself. A guardian acts as a substitute decision-maker and can consent to your future medical and dental treatment, and accommodation arrangements. The appointment also authorises health care professionals to share your information with your guardian.
None of us can predict the future however, by appointing an enduring guardian you can ensure that your wishes are legally documented if you can no longer express them. Appointing a guardian can also minimise conflict between family members about your future health care by stipulating in advance the types of treatment you would like.
Appointing a guardian
An Appointment of Enduring Guardian is made under the Guardianship Act 1987 (NSW). The appointment must be in a form, and witnessed in the manner, prescribed by the Act. Your lawyer can draft the appointment and will explain its legal effect on you and your guardian.
A guardian must be at least 18 years and must not be a person who is professionally or administratively involved in providing medical services, accommodation, or other support services to the person making the appointment. The guardian must also not be the spouse, parent or sibling of a person involved in providing such services.
More than one guardian may be appointed.
It is common for spouses or partners to appoint each other and / or their adult children as guardians however the choice is ultimately yours. Remember that your guardian may need to make confronting decisions in challenging and emotional circumstances. 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 guardian you may appoint them jointly or jointly and severally. Appointing guardians jointly means that both or all guardians must agree on the decisions made on your behalf. By appointing your guardians severally, you authorise each of them to make decisions separately. If appointing more than one guardian, you will need to consider how well they are likely to work together if you are incapacitated and any potential for conflict.
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. You may not instruct your guardian to exercise any illegal functions, such as euthanasia.
The person making the appointment must have mental capacity to do so. Where a person lacks capacity and there is no pre-existing appointment the Act provides for a ‘person responsible’ to authorise medical and dental treatment. A person responsible includes a parent, if the person is a child, or if the person is an adult, the guardian or spouse, person with care of the person, or close friend or relative.
Where there is no person able to act as the ‘person responsible’ an application for a guardianship order may be made to the New South Wales Civil and Administrative Tribunal.
The role of the guardian
It is important to understand the responsibilities you are handing over to your guardians and that they understand the nature of their appointment.
Guardians must give paramount consideration to the welfare and interests of the appointor or (in the case of a guardianship order, a disabled person). 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.
I’ve appointed an enduring guardian – what next?
Many people appoint a guardian without talking through their wishes with that person. An open and frank discussion about your values, morals and future treatment concerns is important to ensure your wishes are upheld if you are incapacitated.
You need to be able to trust that the person or persons you appoint will take your views into account when making decisions on your behalf.
Whilst the appointment of a guardian is a private arrangement, it may be beneficial to alert other family members or friends of the appointment as well as your health care provider.
Your original document should be retained in a safe place and a copy provided to your guardian or instructions given on how to access the original.
If you are incapacitated due to an accident or illness, you may not be able to rely on your usual network of family and friends to make decisions about your treatment that reflect your values and morals.
An Appointment of Enduring Guardian forms an integral part of your overall estate plan – it complements your Will and Power of Attorney which authorises an appointed person to deal with your financial matters in specified circumstances. Together these documents provide direction in the event of the unforeseen and / or inevitable and make the process for you and those dealing with misfortune and crisis a little less uncertain.