In brief - Planning ahead brings peace of mind to you and your next of kin
In New South Wales, an appointment of enduring guardian (AOEG) deals with medical decisions to be made on your behalf when you no longer have the capacity to do so yourself. Your guardian can make decisions on where you live, health care and personal services that you receive and consent to medical and dental treatment.
You may elect to include an advanced care directive in your AOEG which can be as detailed as you would like. For example, it could outline that you do not wish to be kept alive by artificial means should there be no reasonable prospect of your recovery or, that certain types of treatment should be withheld in specified circumstances. This is optional and does not need to be included.
Why should you appoint an enduring guardian?
It is important to have an AOEG in place because without it, in the event that you lose capacity, your next of kin would have to make an application to the NSW Civil and Administrative Tribunal to obtain a guardianship order to provide them with authority to make health and lifestyle decisions on your behalf.
Having an AOEG in place also provides valued guidance to those acting as your guardian. Being someone's guardian can be a daunting task. However, you can save your guardian a certain amount of stress by making them aware of your preferences in relation to health and lifestyle choices.
Consider appointing an enduring guardian and alternate guardians
We recommend that you arrange to have an AOEG prepared. You may like to appoint a spouse, family member or close friend as your guardian in the first instance. We then suggest that you consider appointing alternate guardians in case your primary guardian is unable or unwilling to act.
If you have concerns about appointing one guardian alone to make decisions on your behalf, you can appoint two (or more) guardians that must act jointly. Additionally, if you are concerned about how the AOEG may be used, you can place limitations and give directions on how your guardians must act. Having said this, your nominated guardian should be someone whom you trust and believe would make decisions in your best interests.
Important note: This article is for NSW residents only. Queensland and Victoria use a Powers of Attorney for medical, personal and financial decisions. Processes vary between states.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.