Having an Appointment of Enduring Guardianship can help
Our population is ageing. The life expectancy for men is 84 and for women, 87. It is not uncommon for people to suffer from years of ill health particularly in their advanced years. Irrespective of age or whether you are currently in good health it is important that you give careful consideration to what could happen if you were to be involved in a serious accident or suffer a serious illness. Who should then make health and lifestyle decisions on your behalf.
Kate Blake is 67 years old and is currently in good health. Kate is not married. Kate has a good relationship with her younger sister Isobel O’Brien and her nieces and nephew.
However, Kate has been living in a de facto relationship with John Lawson for over ten years and would like to appoint John to make decisions regarding her lifestyle and health care if she becomes unable to do so herself.
What is an Appointment of Enduring Guardian?
An Appointment of Enduring Guardian is a legal document which authorises a person of your choosing to use their discretion to make decisions about your health and lifestyle in the event that you are incapable of doing so (as a result of an accident or illness). Your guardian can make decisions such as:
- where you live
- what health care you receive
- what other personal services you receive, and
- give consent to the carrying out of medical or dental treatment for you.
It is important that you have a discussion with your spouse/partner or other family members about issues such as who will care for you, where you will live and the type of care/treatment that you would receive should you be unable to make these decisions yourself in the future. An Appointment of Enduring Guardian provides clear direction to the person appointed to act as guardian in relation to these types of issues.
In the absence of an Appointment of Enduring Guardian, generally healthcare professionals and hospitals will act on “the family’s” instructions, when there is no conflict between family members. However it is impossible to anticipate whether conflict may arise between family members particularly when decisions are required to be made in an emergency situation.
As it is Kate’s wish that John make those decisions, it is important that her intentions are clearly stated in an Appointment of Enduring Guardian document.
Some of the reasons for this are as follows:
- It will reduce the possibility of conflict with other family members about such decisions. Family stress is to be avoided where they are already dealing with trauma.
- If Kate doesn’t have an Appointment of Enduring Guardian and has an accident or serious illness, then it is likely that John would need to make an application to the Civil and Administrative Tribunal for a Guardianship Order before he could make any decisions regarding the type of treatment Kate would receive. A delay in the meantime could be critical and the cost of a Tribunal application is thousands more than simply preparing the Appointment document.
- Decisions such as the type of medical treatment that you receive quite often need to be made quickly. Having an Appointment of Enduring Guardian in place will eliminate some unnecessary stress if the directions are clear.
- Clear directions must be given as to the type of health care you want receive and whether you give your consent to certain medical procedures being performed.
- Making such choices when in good health and when you are capable of making clear decisions. It is not wise to make this document at a time when you are under considerable stress or after a traumatic event has occurred.
- In the absence of an Appointment of Enduring Guardian, if say two family members are in conflict about who should be appointed, the Tribunal is often called on to adjudicate. The NSW Public Guardian is often appointed. Most people would feel more comfortable having someone who is personally known to them to act as their guardian. A guardian should have a good understanding of your wishes and be someone who would act in your best interests at all times. If in Kate’s situation the NSW Public Guardian were to be appointed as her guardian then her partner John would not have any control over any health and lifestyle decisions being made on Kate’s behalf.
- The making of an application to the Civil and Administrative Tribunal for a Guardianship Order can be an emotionally draining experience and the person applying is not guaranteed to be appointed.
When a person approaches advanced age, an Appointment of Enduring Guardian becomes a necessary safeguard irrespective of the family situation. Increasingly, aged care providers require one before admitting a person to accommodation.
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