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Planning for Life Part 2 – Enduring Guardianship

Planning for Life Part 2 – Enduring Guardianship

Last week’s article looked at some of the issues surrounding Powers of Attorney. In the article I made mention of Enduring Guardianship, so I thought I would continue along with the theme of planning for life.

An enduring guardianship is when we, of sound mind and over the age of eighteen years, appoint someone to make personal and health decisions for us, when we are no longer mentally able to make these decisions ourselves.

As with powers of attorney, there is no law that states that we must appoint someone to make personal and health decisions for us. However, there are laws that state who can make these decisions for us if we were to lose mental capacity and have not already appointed someone to make decisions when we cannot.

Enduring guardianship is also governed by state and territory legislation.

Should we decide to appoint an enduring guardian, or more than one enduring guardian, we can state on the form how we want them to make their decisions, either together or separately.

When considering who to appoint as our enduring guardian we need to take into account what kinds of decisions we would want them to make. For example do we want them to choose where we were to live, and with whom! What kinds of medical treatment we are to receive and also what kinds of dental treatment. Our enduring guardian/s, if we have authorised them to, can decide what kind of personal services we are to receive.  We can, of course, put limitations on the powers that we give the enduring guardian.  We can also direct the enduring guardian when making their decisions to take into consideration certain directions. We might, for example state that if we were to be admitted to a residential aged care facility, we would want to go to one that was operated by an organisation of our own religious faith and beliefs.

When we take into consideration the power we are giving the enduring guardian it is important to think carefully about who we choose. Are they the right person to make these decisions? Will they follow the directions in the enduring guardianship form? Do they understand their responsibilities and are they able to advocate for us?

Of course, whilst we have mental capacity we can revoke (cancel) the enduring guardianship appointment and we obviously need to inform the enduring guardian that we have revoked their appointment.

Enduring guardianship appointments are also only effective whilst we are alive, so once we die the enduring guardian no longer has any powers under the enduring guardianship appointment.

However, if we were to lose mental capacity and had not already appointed an enduring guardian there is, for the purposes of health and dental matters, a fall-back position. Under the Guardianship Act 1987 (NSW) there is provision for what is known as a “person responsible” and the legislation sets out the various situations where, and for what, the person responsible can give consent on behalf of the person who has lost capacity.

 Not everyone can be a “person responsible”. In the first instance the person responsible must be over the age of eighteen years. Then there is a hierarchy as to the order of people who fit the description. Top of the list is someone who has been appointed either as an enduring guardian (by the person themselves before they lost mental capacity), or someone who has been appointed as guardian, by the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT). However, if there is no-one who has been appointed, then the hierarchy moves down to the spouse of the person (providing they are in a close and continuing relationship). Next is a person who has care of the person incapable of making decisions themselves (it is important to note here that the person’s health professional cannot be appointed as their enduring guardian). Following on from the person who has care of the person the last on the list is a close friend or family member.

Whilst it may appear that nearly everyone would have some-one, sometimes there can be too many “someones” in the last category! For example what if there are three adult children and each one states “I am my mother’s person responsible” it can be a little tricky to say the least and can obviously cause disharmony within the family and often to the detriment of the person who is in need of someone else to make their decisions. Also, who is the health/aged care provider to take notice of?

It should be noted that there is no place for the term “next of kin” when it comes to substitute decision making for health matters. As can be seen the next of kin may not necessarily be the person responsible.

Once again, it is important to think through this aspect of planning for life. There are witnessing requirements attached to the signing of the form and it is prudent to seek the services of a solicitor when preparing the document.

Further information on powers of attorney and enduring guardianship can be found on the Planning Ahead website at http://planningaheadtools.com.au/

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