While considering your estate planning and the management of your future affairs, you may wish to appoint an enduring guardian to make the process of dealing with a crisis or declining health issues a little easier.

Enduring guardians

An enduring guardian can make certain lifestyle, health, and medical decisions on your behalf if you lack the capacity to make those decisions yourself. A guardian acts as a substitute decision-maker and can consent to your future medical and dental treatment and accommodation arrangements. The appointment also authorises health care professionals to share your information with your guardian.

A guardian must be at least 18 years and must not be a person who is professionally or administratively involved in providing medical services, accommodation, or other support services to the person making the appointment. More than one guardian may be appointed.

When appointing an enduring guardian, you must have mental capacity to do so.  It will be too late to appoint an enduring guardian after you lose mental capacity.

It is common for spouses or partners to appoint each other and/or their adult children, although this need not be the case. When appointing a guardian, you should consider that he or she may need to make confronting decisions in challenging and emotional circumstances and it is important that your guardians understand your values, morals and wishes.

If you appoint more than one guardian, you will need to decide whether to appoint them jointly, severally, or jointly and severally. Appointing guardians jointly means that both or all guardians must agree on a certain decision made on your behalf. Severally means that a guardian may make a decision about your welfare separately without agreeing with other appointed guardians. Your lawyer can explain the effect of appointing guardians jointly or severally and the different decision-making areas you would like to include in the appointment.

What types of decisions can an enduring guardian make?

An appointment of enduring guardian can include specific directions about your future healthcare, medical and dental treatment or, for example, that you continue receiving services from a certain health care provider. You may also include the type of treatment you are willing to accept or refuse, for example you may state that if you are seriously ill with no chance of recovery, you do not wish to be subjected to treatment unlikely to meaningfully prolong your life.

Although it can be confronting, we recommend discussing your healthcare wishes with your guardian when you appoint them. You should only appoint somebody you trust to act in accordance with those wishes.

It is sensible to plan ahead not just for expected end of life events, but for unforeseen health issues. Our estate planning lawyers can explain how an appointment of enduring guardian operates and guide you through the decision-making process to prepare documents that properly reflect your intentions.

If you need assistance, contact one of our lawyers at [email protected] or call 02 4297 6066 for expert legal advice.