What is an Enduring Guardianship?

Appointing an Enduring Guardian to make lifestyle and medical decisions if you lose the ability to make decisions for yourself, 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.

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” - conversations with family members or close friends about what you’d want to happen if you became ill, incapacitated or unable to speak 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 our loved ones now knowing what our 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 someone else (the guardian) to make lifestyle, health and medical decisions for you when you no longer have mental capacity to make those decisions yourself.

It’s a way to:

• 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:

• A Medical Power of Attorney
• 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) .

The Guardian’s powers take effect only if you are mentally incapable of making decisions yourself, such as when you’re unconscious or in a coma, or experiencing dementia 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, and get legal and medical advice before you sign one.

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 all of us, it is a safeguard that all of us should have in place.

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 handling your 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 the need arises.

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.

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.