What is an Enduring Guardianship?
Understand what an Enduring Guardianship is before you appoint one. More importantly, get to grips with the benefits before you decide you don't need one. In this blog post, we cover exactly what an enduring guardianship order is, how it can protect your interests and the healthcare decisions this person takes on if you lack capacity required to make your own decisions.
Appointing an Enduring Guardian to make health care and personal decisions if you lose decision making capacity, is an important way to protect yourself and your loved ones against the unexpected.
None of us like thinking about the worst case scenarios. And as Aussies, a “she'll be right” attitude is part of our national identity.
But the truth is that unexpected and unpleasant things do happen, and often occur without warning. Life can serve you lemons just when you least expect it. And when it comes to personal matters and health care- it's important to have someone authorised to make decisions in your best interests.
Acknowledging life's ups and downs, and putting a safety net in place to deal with them, can be incredibly empowering. This is where appointing an Enduring Guardian comes in and can give you the freedom to go about your life with peace of mind.
It's also a useful tool in “advanced care planning”. Granting someone decision making capacity can spark important conversations with family members or close friends about what you'd want to happen if you became ill, incapacitated or unable to review and make decisions for yourself. These plans are always better to share with others, as the last thing that any of us want to happen is for something bad to occur and your chosen family member not knowing what your wishes would be.
Read on to find out more about Enduring Guardianships, what the benefits of having an Enduring Guardian are and how you can appoint one.
What does an Enduring Guardian Do?
An Enduring Guardianship is an important legal document that allows you (the donor) to choose a person (the guardian) to make lifestyle, health and medical decisions for you, if you become mentally incapacitated and become unable to make these choices for yourself. This could be due to mental illness, or mental incapacity from a sudden accident or illness. If this happens, guardianship is a way to cover important medical decisions on health, which.
Health care decisions a guardianship order covers:
Ensure you get the treatment you actually want when seriously ill or incapacitated
Reduce the stress on family members who are left trying to interpret your wishes
Reduce the burden on doctors and healthcare professionals who may be called on to provide unwanted treatments.
All Australian states and territories have different guardianship laws.
Depending on which state or territory you're in, an Appointment of Enduring Guardian could also be called:
An Appointment of Attorney for Medical Matters
An Enduring Power of Guardianship
An Advance Care Directive.
Although they're known by different names in different jurisdictions, the important thing to remember is that an Enduring Guardian is the person that takes on responsibility for your medical and lifestyle decisions, rather than financial and legal matters (which is dealt with by your Power of Attorney) . There is a key difference in who you might want to appoint as to review decisions as your financial manager, and who you want to make decisions and have powers over your health, medical and dental treatment.
The Guardian's powers take effect only if you are mentally incapable of making important decisions yourself; such as when you're unconscious or in a coma, acquired a brain injury or experiencing dementia, intellectual disability, health issues and mental illness.
Because serious and life changing events trigger the need for an Enduring Guardian, you should approach it as a crucial life planning exercise. In granting authority to this person for all personal matters, if you lose capacity, you must be comfortable that the appointed individual has the ability and respect for your wishes.
In covering health and lifestyle decisions, personal matters and medical decisions- it's an important role which requires legal and medical advice before you grant this authority. Whilst you still have capacity, it's important to appoint this person and give them guidance on making decisions for you in the future.
Who should make an Appointment of Enduring Guardian?
Any adult of sound mind can appoint an Enduring Guardian to act for them if they become incapacitated.
Although it's a wise choice for everyone, the Appointment of an Enduring Guardian becomes increasingly important as you get older, or where you're affected by an advancing illness or medical condition. Given the uncertainty that life presents to all of us, an enduring guardianship is a safeguard that all of us should have appointed.
Who should you appoint as your Enduring Guardian?
Your Enduring Guardian is legally bound to make decisions in your interests and on your behalf. Having someone you can completely trust in the role is a safeguard that they won't be influenced by personal motives or gain when making medical decisions and handling powers on your personal affairs.
You should involve them in a discussion about your views and goals, and to tell them what to do if you become incapacitated.
Examples of things you need to consider and discuss are:
Living and care arrangements
Giving or withholding treatment
Prolonging treatments
Choosing between different medical treatments and technologies.
If your wishes and plans change, you should let them know and update your documents accordingly.
You can appoint more than one Enduring Guardian and indicate whether they can act:
Jointly - in this case they must all agree before a decision is made; or
Severally (or jointly and severally) - in this case they can make decisions independently of each other. This could be an option when you want to give different functions to each Guardian.
How do you appoint an Enduring Guardian?
In order to validly appoint an Enduring Guardian, you need a properly drafted and executed Enduring Guardianship document. This document needs to be signed by you, your Guardian and lawyer (depending on which state you are in) in order to make the appointment valid. It should then be kept in a safe place where your Guardian can easily access it if an acquired brain injury or poor health renders you unable to make decisions.
What happens if I don't have an Enduring Guardian?
Without a valid Appointment of Enduring Guardian, the Courts will need to appoint someone who is suitable for the role. If no one can be identified to fill the role, a Public Guardian appointed by your state or territory can take over the management of your affairs and consent to medical treatments. Whilst this person will act as your public advocate to make medical decisions best aligned to your health interests- they may be unaware of your personal wishes or preferences.
How long does an Enduring Guardianship appointment last?
If your appointed Guardian is a spouse or partner and you separate or get divorced, you will have to change it to reflect your new circumstances (if you no longer want to have them in the role).
Otherwise, An Appointment of Enduring Guardian will last until you die. And then your Will comes into effect to determine how your estate - and other wishes about your end of life - are dealt with.
How can I also safeguard my legal and financial affairs if incapacitated?
It's always advisable to approach estate and end-of-life planning in a comprehensive way. This means having not just one, but all the documents you may need in place. The most common documents in a comprehensive estate plan include:
A Will
An Enduring Power of Attorney
An Appointment of Enduring Guardianship.
An Enduring Guardian is a person appointed to take care of your lifestyle and medical care when you are incapacitated. For someone to also make legal and financial decisions, you will need to create an Enduring Power of Attorney.
You can find out more about Wills and Powers of Attorney in our past posts.
Advance care directives and “Living Wills”
Many people have strong feelings influenced by their values and ethics about the types of medical treatments and degree of medical intervention they want if they fall seriously ill. If you hold strong values and wishes around the medical treatment you'd like to receive, an advance care directive (sometimes called a “Living Will”) could be an additional safeguard alongside your Enduring Guardianship.
While your Enduring Guardian has the power to make medical and lifestyle decisions on your behalf, if you haven't given them specific, preferably written, instructions on every aspect of care, they may not be aware of your exact wishes around certain types of medical treatment.
Although specific laws covering advance care directives are not in place everywhere in Australia, having an advanced care directive is often helpful in clearly outlining your wishes to your guardian.
If not now, when?
Don't let your inner procrastinator run the show. Appointing an Enduring Guardian and completing a comprehensive estate plan are important steps you should take to protect your loved ones and safeguard your life's work.
Learn more about how you can get started with Safewill. We offer flexible, affordable and easy services to appoint the person you want to hold the enduring guardianship role for you. Our team of legal experts are able to help you with any issues in the court, as well as any questions you have on the guardian appointed for yourself or a loved one.
Contact us on 1300 942 586, or start a live chat now, to find out more.