There are a number of documents that a person may wish to complete in order to appoint one or more persons to manage their legal and financial affairs (i.e. a power of attorney) and make medical, health care and lifestyle decisions for them (i.e. an appointment of enduring guardian, advance health directive or medical treatment consent).
Appointment of Enduring Guardian
An Appointment of Enduring Guardian (also known as an Enduring Power of Guardianship) allows a person (the “principal”) to appoint another person or persons (the “guardian”) to make medical, health care and lifestyle decisions on the principal’s behalf. It does not include financial decisions, for which a power of attorney must be prepared.
An Appointment of Enduring Guardian allows a guardian to consent or withhold consent to medical or dental treatment on the principal’s behalf. However, if an enduring guardian withholds consent to proposed medical or dental treatment, generally a practitioner may only provide the treatment if the practitioner believes on reasonable grounds that it is in the principal’s best interests to do so and if the practitioner gives the enduring guardian the opportunity to refer the matter to the relevant guardianship tribunal for determination.
The principal must trust the guardian to make appropriate medical and lifestyle decisions, should get legal or medical advice (or both) before he or she signs it and should inform the guardian of the principal’s wishes in respect of medical and lifestyle issues. If these wishes change, then it is important that the principal lets their enduring guardian know.
If the principal appoints more than one guardian then the appointment must indicate whether the guardians are to act jointly, severally or jointly and severally. Guardians who are appointed jointly are only able to make decisions if they all agree about the decision. Guardians who are appointed severally or jointly and severally are able to make decisions independently of each other and do not need to all agree about the decision, which means that it is particularly important that the principal communicates his or her wishes to the guardians in order to minimise the risk of any future disagreement. Careful consideration should be given to whether an appointment should be joint or joint and several.
The principal may appoint an alternative guardian to act if their guardian is unable to act. If the principal appoints an alternative guardian then they will only have authority to act as guardian if the first appointed guardian dies, resigns or becomes incapacitated.
If the principal marries after making an Appointment of Enduring Guardian then the appointment will automatically be revoked, unless the principal married their guardian.
A guardian can resign at any time, by written notice to the principal. However, if the principal has lost capacity when the guardian resigns then the resignation must generally be approved by the Guardianship Tribunal in the Australian state or territory in which the Appointment of Enduring Guardian was made in order for it to be effective.
There is no public register on which an Appointment of Enduring Guardian is kept. It is therefore important that the principal notifies friends and family of the appointment and where the original document (and any copies of it) is/are kept.
The principal should provide a copy of the enduring guardianship appointment to your enduring guardian and keep a copy in a safe place. You should also let close friends or family know about it and give a copy to your solicitor, doctor and health service provider.
Advance Health Directive
An advance health directive is a document that deals with the future health care of the principal and enables the principal to give directions about their medical treatment for times when they cannot speak on their own behalf. For example, when the principal is unconscious or unable to communicate their wishes due to severe illness. Before completing or signing an advance health directive the principal may wish to speak to their general practitioner or a specialist medical practitioner in order to explain their wishes and to confirm that they have capacity to complete the document.
Medical Treatment Consent
In some Australian states and territories a person can also complete a medical treatment consent in addition to an appointment of enduring guardian, which has priority over any appointment of enduring guardian in relation to any medical treatment covered by the consent document. For example, in Victoria if a principal appoints a person as his/her agent under the Medical Treatment Act 1988 (Vic) and another person as his/her enduring guardian then the decision of the agent under the Medical Treatment Act 1988 will have priority over the decision of the enduring guardian in relation to any proposed medical treatment and the agent under the Medical Treatment Act 1988 will be able to refuse to consent to medical treatment on the principal’s behalf in all circumstances regardless of any consent to the treatment that the enduring guardian may give or wish to give.
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