Guardianship appointments and advance care directives

While a power of attorney gives authority to deal with financial issues it does not help with medical and health care problems when a client is unable to make those decisions themselves.

These can be dealt with by the appointment of family or friends as guardians to make medical and lifestyle decisions.

An advanced care directive is usually discussed, prepared and signed between a doctor and their patient usually where they are suffering a terminal illness or a patient is at the end stages of life.

What is a guardianship appointment?

An enduring guardian is someone you choose by signing a legal document to make medical, lifestyle and welfare decisions for you when you are not capable of doing this for yourself.

You choose which decisions (functions) you want your enduring guardian to make (have) and you can give your guardian directions on how to carry out those functions.

An enduring power of attorney is a separate legal document and does not allow for lifestyle and welfare decisions.

Usually your immediate family would be the most suitable to be appointed guardian.

What happens if I do not have a guardianship appointment and I lose my capacity?

If you lose your capacity and you have not appointed someone as your guardian, it is possible there is someone who may have the legal authority to make medical, lifestyle and welfare decisions pursuant to the NSW Guardianship Act on your behalf.

If there is no guardianship appointment and no one has legal authority to make decisions, a close family member or friend can make an application to the Guardianship Tribunal. The Tribunal can appoint an appropriate person as guardian.

Having an enduring power of attorney is not enough. An enduring power of attorney permits an attorney to make decisions about your money and property. It does not permit an attorney to make medical, lifestyle or welfare decisions for you.

You can avoid these potential problems by appointing someone as your guardian.

What is an advance care directive?

In addition to appointing someone as your guardian, you may want to consider completing a set of instructions that sets out your wishes about your medical treatment and health care. That is what an advance care directive does.

In NSW, there is no specific law that permits you to make an advance care directive. Instead, a written directive is an extension of your legal right to make decisions for yourself about those things.

If you do not leave a directive, it is possible that no one will know how you want these things dealt with and if you have appointed a guardian, your guardian will simply make those decisions, subject to any limitations under the Guardianship Act.

If you do leave an advance care directive and you have also appointed a guardian, your guardian will be bound by your directive.

These directives only operate when you lose your capacity.