You can choose who can make decisions on your behalf regarding your medical and dental treatment and decide where you live if you are not capable of doing this for yourself. These are known as “functions”. The easiest way to do this is to appoint an enduring guardian.
The appointment of an enduring guardian takes effect only if and when you become unable to make personal or lifestyle decisions for yourself, such as where you are in a coma, are unconscious or suffer from mental incapacity (like dementia).
Who can be appointed?
An enduring guardian must be at least 18 years of age, but cannot be a person who, at the time of the appointment, provides you with medical treatment, accommodation, support or care to you as a professional.
The appointed enduring guardian should be someone that you trust absolutely as they have significant powers. Although an enduring guardian must act in accordance with the provisions of the Guardianship Act 1987 (NSW), you should be satisfied that the person you appoint will act in your best interests.
You can appoint more than one person to act as your enduring guardian – either jointly (together) or separately. You can also appoint alternative enduring guardian/s in case something happens to your first nominated enduring guardian. For example, people often appoint their spouse and have their children as their joint alternate enduring guardians.
What decisions can be made?
You can give your enduring guardian the discretion to make all relevant decisions for you when you are not able to make them for yourself or alternatively, you can limit your enduring guardian’s functions such as:
consenting to certain procedures,
limiting their discretion as to the type of nursing home or care facility you want to reside in,
requiring them to refuse treatment, turning off life support, giving ‘do not resuscitate’ directors in certain circumstances (such as where you would be in a vegetative state or have no real quality of life)l or
requiring specialist consultation or consultation with relatives regarding decisions about your care and treatment.
You cannot give your enduring guardian a function or direction which would require an unlawful act, such as assisted euthanasia.
How can you end or amend it?
An enduring guardian’s appointment comes to an end ifyou die or if you revoke the appointment however, you can only revoke it whilst you still have mental capacity.
The New South Wales Civil & Administrative Tribunal can review or revoke a person’s appointment as an enduring guardian and can make a guardianship order appointing a new or further guardian or appointing a representative of the NSW Trustee & Guardian if it is considered that your guardian not making appropriate decisions on your behalf.
Reproduced with permission of McKillop Legal (02) 9521 2455
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