Advance Care Directives – Appointment of Enduring Guardian

Your guardian is someone you nominate through an Appointment of Enduring Guardian to make decisions about your health care and well-being if you are unable to do so. You can also specifically direct your guardian as to how you wish to be treated by way of an Advance Care Directive (ACD).

If you’re looking for someone to make decisions on legal and financial matters for you, you would use a Power of Attorney.

What is an Appointment of Enduring Guardian?

If you are temporarily or permanently incapacitated, so that you are unable to make decisions as to your health care and to give proper direction to your medical practitioner, someone needs to be able to make those decisions or give those directions on your behalf.

You can decide who in your family or your friends should be your guardian. This is preferable to someone else making decisions for you without your input.

Must I appoint a Guardian?

You are not obliged to appoint a guardian. But if it is important to you that you choose a person to make what may be significant decisions affecting your life, your quality of life and your lifestyle choices, it is preferable to appoint a guardian of your choice.

If you do not formally appoint a guardian, a 'responsible person' will be the person who can make those decisions for you. A 'responsible person' would generally be your spouse or maybe a person who has been giving you support (including a parent, a brother or sister, an adult child, a close friend or a close relative).

Problems can arise where the responsible person cannot easily be identified or is not recognised by a relevant health authority, or there may be conflict among two or more potential responsible persons.

What decisions would my Guardian make?

The main functions that your guardian would carry out, are decisions about:

• where you should live;
• what health care should be provided;
• what personal services you may need; and
• what medical or dental treatments you may need.

Can I tell my Guardian to turn off my life-support?

With the extent of medical advances, this is a common question. It is not unusual for people to not want to be maintained on life-support, just for the sake of maintaining life. But there is the overriding issue of the fact that the laws of New South Wales do not currently support euthanasia.

You can provide an Advance Care Directives (also known as a Living Will or a 'do not resuscitate' direction) which essentially is a clear statement by you to your guardian or responsible person, as to what life-sustaining measures might be applied, or might be withheld if you were in an 'end-of-life' situation.

Are the Appointment of Enduring Guardian and the Advance Care Directive separate documents?

The Appointment of Enduring Guardian is a statutory based document (it is a form prescribed in the Guardianship Regulation NSW 2016). It allows for there to be some changes to the actual prescribed form and this includes making directions to the guardian.

So, it is possible to include the ACD within the Appointment of Enduring Guardian but it is also possible to do the ACD as a separate document. The choice is yours and our lawyers can advise you on any implications of having only one or the other, or both.

Should I talk to my doctor about this?

It is certainly beneficial to talk to your doctor about making an ACD.

This is more significant if you have specific medical issues that might need to be included in the ACD for the benefit of any medical practitioner dealing with your health needs.

It is also beneficial to ensure that your ACD is known to your medical practitioner and, if you are going to a hospital or another health facility, you (or your guardian if you are incapacitated) should provide a copy of your ACD to them.

Can I change or revoke my appointed Guardian or my ACD?

While you are capable and have the capacity to do so, you can revoke or change the appointment of your guardian and you can amend or delete the directions in your ACD.

Who determines if I ‘have capacity’ to make an ACD?

Our lawyers must consider whether you have capacity to make an Appointment of Enduring Guardian and an ACD at the time of first meeting with you.

If there is any concern as to that capacity, a medical assessment may be needed.

Who determines when my guardian can make decisions for me?

This is primarily a medical determination and would usually arise where you were in a condition such that you could not communicate with your treating doctor. The treating doctor is likely to be the one to make that call.