In many ways, the appointment of a Power of Attorney or Enduring Guardian is one of the most important decisions you could ever make. You are potentially giving a person complete control over your health and your lifestyle. For this reason, it is critical that you appoint a person (or, ideally, more than one person) who you trust to act in your best interests.
The words used to describe the appointment vary across States and Territories, however we can summarise the functions which you are able to delegate to another person into two categories:
- Attorney Functions, which include your property and financial affairs; and
- Guardian Functions, which include your personal care and health care affairs, and (in the ACT), the new “medical research” function.
For the purposes of this article, we will focus primarily on Health based powers, and will describe any person who can exercise the Guardian Functions listed above as an “Enduring Guardian” (though they would be called an Attorney in the ACT).
What does “Enduring” mean?
An Enduring Guardian’s powers will only come into effect if you lose the ability to make decisions for yourself – for example, if you were unconscious, mentally ill (to the extent that you couldn’t give instructions to your doctor), in a coma or vegetative state, or you were otherwise incapable of making a decision.
You cannot revoke an appointment of an Enduring Guardian at any time where you do not have capacity. This means that if should be in the advanced stages of conditions like Alzheimer’s Disease or Dementia, you might no longer be able to revoke the appointment. This is another reason why it is critical that you carefully consider who to appoint.
How do I appoint an Enduring Guardian?
In NSW, you appoint a Guardian through an Appointment of Enduring Guardian form made under the Guardianship Act 1987. This is a different document to the one where you appoint someone with Attorney Functions.
In the ACT, you appoint an Enduring Guardian (though this person is called an Attorney in the ACT) through an Enduring Power of Attorney form made under the Powers of Attorney Act 2006. This is the same document where you also appoint someone with Attorney Functions in the ACT.
If you are unable to appoint a Guardian, because you are incapable of doing so, then someone will need to apply to the NSW Guardianship Tribunal or to the ACT Civil and Administrative Tribunal for these functions to be granted to them.
What can my Guardian do?
You are able to choose to give your Guardian the power to make any of the following decisions:
- Personal Care decisions – including where you live, and what kinds of personal services you receive;
- Health Care decisions – including consenting to medical and dental treatment on your behalf;
- Medical Research Participation (ACT Only) – including participation in certain research, provided that the research will not cause you any harm or change your treatment, but including experimental medical treatment.
At elringtons, we also incorporate the Health Direction provisions under the Medical Treatment (Health Directions) Act 2006 (ACT) into our Power of Attorney forms for ACT residents. We also incorporate similar Advance Care Directives into our Appointment of Enduring Guardian forms for NSW residents. If you instruct us to include these in your Enduring Guardian documents, you are able to direct the withdrawal of medical treatment in cases where you are in a permanent coma, persistent vegetative state, terminally ill, or would otherwise be unable to survive without permanent life support.
It is a very good idea to include these Health Directions in your Power of Attorney or Appointment of Enduring Guardian document under the supervision of a solicitor, as there are specific formal requirements involved in preparing and witnessing your directions. Legal advice is also a good idea because your doctor is legally prohibited from following these directions if they are uncertain whether they strictly comply with the legislation.
When appointing an Enduring Guardian, it is also common to appoint an Attorney to make property and financial decisions for you if you are unable to do so. It is also a good idea to take the opportunity to revisit your Will.
When should I change my will?
Appointing an Enduring Guardian and Enduring Power of Attorney
This article has been prepared in the context of NSW and ACT law. It may not apply to residents of other Australian States or Territories.
For more information or if you wish to make an appointment to discuss your queries, please contact our Wills and Estate Planning team:
p: 6206 1300| e: info@elringtons.com.au
