Enduring Guardianship

• Who will look after you if you cannot do so yourself?
• Where will you live?
• Who will decide what health care you receive? Who can decide if you are to have an operation if you are not capable of making that decision yourself?
• Would you want someone to stop treatment if you are terminally ill?
• Would you want someone to direct medical staff to turn off a life support system?
• What is an Enduring Guardian? What powers can I give my Enduring Guardian?
• Can I cancel my Enduring Guardian?

If you have any concerns about these issues please read the attached information which discusses Enduring Guardianship.

Introduction

Unfortunately sometimes we are left in the position where we cannot make our own lifestyle decisions. This is usually due to an accident or if we suffer from dementia. As a community we are increasingly becoming aware of family or friends who have Alzheimer’s. This is a natural progression as medical science is keeping us alive for much longer.

If significant decisions need to be made for us these usually can be made by our family and friends. However sometimes other family members who would usually be in a position to help have died or there is a conflict among family members concerning your best interests.

It is in these circumstances that the appointment of an enduring guardian should be considered.

We all try to plan our working lives, plan our children’s education and plan our retirement as best we can. With the growing impact of dementia it is becoming increasingly important to plan for the situation where we might not be able to make our own decisions.

We all know the benefits of having a will to ensure our intentions as to what will happen with our assets after we die. Many people also have an enduring power of attorney in order that someone can manage our financial affairs. However it has only been recently that it has become possible to appoint an enduring guardian to make lifestyle and health care decisions for you if in the future you cannot make those decisions for yourself.

What is an Enduring Guardian?

An Enduring guardianship allows you to appoint a person to be your guardian in the event that you are incapable of managing your person and therefore cannot make personal lifestyle decisions or give consent to medical and dental treatment. The Guardian can make certain lifestyle decisions for you. An Enduring guardianship will only be effective if you become incapable of making those decisions for yourself because of your disability.

Advantages of an Enduring Guardian?

The appointment of an enduring guardian has the advantage of ensuring that someone who you trust can act in your interests. If you have not appointed an enduring guardian there can potentially be family disagreements about lifestyle decisions for you.

An example of where conflict may arise would be where some family members are more concerned about their inheritance rather than spending money on a more comfortable lifestyle for you.

Another example would be where there is a dispute over what medical treatment you receive. It may be that some members of your family want to start or continue with some form of treatment which impacts on your quality of life whereas other family members believe that you should be made as comfortable as possible. This is especially relevant in
palliative care.

What if there are Disputes concerning Lifestyle Decisions?

If there are disagreements then a family member or another person interested in your wellbeing may seek appropriate orders from the Guardianship Tribunal. If possible this should be avoided and having an Enduring guardianship in place will assist in the above situations.

When considering whether or not a guardianship order shall be made, the Guardianship Tribunal must have regard to whether or not there is a need and as to:

1. 1 the views (if any) of:
   1. you; and
   2. your spouse, if any, if the relationship between you and your spouse is close and continuing, and
   3. the person, if any, who has care of you.
2. the importance of preserving your existing family relationships;
3. the importance of preserving your particular cultural and linguistic environments;
   and
4. the practicability of services being provided to you without the need for the making of such an order.

If the Guardianship Tribunal decides that a guardianship order ought to be made, then in appointing the proposed guardian, the Tribunal is required to consider the following factors:

1. the personality of the proposed guardian is generally compatible with you;
2. there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and you, and;
3. the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.

Potentially, the Guardianship Tribunal may or may not appoint a person that you would have preferred to act as your guardian.

What Medical and Dental Treatment can be authorised?

It is a requirement of the Guardianship Act that medical and dental practitioners must get consent from a “person responsible” before commencing treatments on a patient that is incapable of giving his or her consent. There is a hierarchy of who is a “person responsible”. That hierarchy is, in descending order:

1. your guardian provided that you have appointed your guardian to exercise the function of giving consent to the carrying out of medical or dental treatment,
2. your spouse or de facto spouse where the relationship and close and continuous,
3. your carer,
4. a close friend.

What this means is that, if you do not have an enduring guardianship your spouse is the person responsible for consenting to your medical and dental treatment. If your spouse predeceases you or is unwilling or unable to make such decisions, then following the above hierarchy, it will be the carer of you and if there is no such carer, then the relative or a close friend of you.

It may be that in your individual circumstances it could be extremely beneficial for you to appoint someone your enduring guardian.

What functions may be exercised by an Enduring Guardian?

The Guardianship Act sets out the functions that can be exercised by a guardian. These include:

1. to decide where you live,
2. to decide what health care you receive,
3. to decide what other kinds of personal service you receive,
4. to consent to the carrying out of certain medical or dental treatment on you

You can give your enduring guardian as many or as few functions as you choose. This is totally up to you.

If any of the following circumstances arise you also might consider giving your enduring guardian directions as to how they are to make decisions concerning you:

1. in the terminal phase of an incurable or irreversible illness;
2. permanently unconscious (in a coma);
3. in a persistent vegetative state; or
4. so seriously ill that I am unlikely to recover to the extent that I can live without the use of life-sustaining measures,

For example; you could direct your enduring guardian to refuse medical treatment on your behalf even if that treatment is necessary to prolong your life and the refusal of treatment will lead to your death.

If your health situation is as outlined in points 1 to 4 above then you also might want to direct your guardian to exercise his or her functions subject to the following directions:

You do not wish the provision to you of life sustaining measures, being medical treatment that supplants or maintains the operation of your vital bodily functions that are likely to be incapable of independent operation including, but not limited to, life support, assisted ventilation, artificial nutrition, artificial hydration and cardiopulmonary resuscitation.

You also might consider authorising your enduring guardian to obtain from any provider to you of health care, dental care, hospital care or from your retirement village or nursing home such information and documentation as your enduring guardian may require concerning:

1. any treatment or care given or proposed to be given to you;
2. the results of any tests on you; or
3. your whereabouts in any health care facility, hospital, aged care facility or nursing home;

What treatment can your Enduring Guardian NOT consent to?

It must be remembered that there are certain treatments that cannot be consented to by an enduring guardian. Certain treatments require the consent of the Guardianship Tribunal. These include:

1. treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out;
2. any new treatment that has not yet gained the support of a substantial number of medical practitioners or dentists specialising in the area of practice concerned;
3. any treatment that is carried out for the purpose of terminating pregnancy;
4. any treatment in the nature of a vasectomy or tubal occlusion;
5. any treatment that involves the use of an aversive stimulus, whether mechanical, chemical, physical or otherwise;
6. any treatment that involves the administration of a drug of addiction (other than in association with the treatment of cancer or palliative care of a terminally ill patient) over a period or periods totalling more than 10 days in any period of 30 days.

Please also remember that an enduring guardian has no power to make decisions in relation to your financial affairs. This would require a Power of Attorney.

Your enduring guardian cannot:

1. Make a will for you
2. Vote for you
3. Consent to marriage
4. Manage your financial affairs
5. Consent to certain medical treatment

Can I Cancel the Appointment of my Enduring Guardian?

Yes, however it must be in writing using the form required by the Guardianship Regulations. You must sign that form in the presence of a lawyer or a clerk of the local court. Your also must have the legal capacity at that time to cancel the appointment of your Enduring Guardian. The enduring guardian must be provided with a copy of the revocation.

If you marry or remarry, the appointment of the enduring guardian is automatically cancelled.

Relationship between Enduring Guardian and Enduring Power of Attorney

A Power of Attorney is a legal document in which you appoint a person to act for you to do certain financial things on your behalf. It usually allows your attorney to open and close bank accounts, withdraw and deposit funds to your account, pay all your bills for you from your account, arrange to insure your personal assets, deal with Centrelink on your behalf and buy, sell, mortgage and lease your house.

A Power of Attorney also usually operates even after your suffer loss of capacity. This means that it will continue to operate in the case that you suffer from dementia or are in a coma after an accident. This is a very important and necessary aspect of your Power of Attorney, otherwise an application may need to be made to the Guardianship Tribunal for the appointment of a person to handle your financial affairs. The making of financial management orders means that all or part of your estate will be subject to management under the Protective Estates Act 1983. The Attorney’s power over that part of your estate that is subject to financial management order is then suspended.

However by appointing an enduring guardian you will minimise the need of your family or carer to make an Application for a guardianship order (and hence potentially a financial management order). Nonetheless, an enduring guardianship does not preclude an application by a person genuinely concerned for your welfare for a guardianship order or a financial management order.

Although your Attorney and your guardian carry out different functions and aspects of your welfare, their relationship will be intimately linked because any lifestyle decisions made by your guardian will affect your financial situations and vice versa. Therefore, it may be prudent to consider the compatibility of your attorney and your proposed guardian before making an appointment.

The Next Step

The appointment of enduring guardian requires the preparation of a legal document by your lawyer. It must be signed by you and the people you are appointing as your enduring guardian. The Guardianship Act requires that the signatures of the people signing the document must be witnessed by a lawyer or clerk of the court.

Case Studies

1. Bill is recently divorced and has two adult children. He has appointed his sister his Enduring Guardian. Bill has recently suffered a stroke and cannot speak. Bill’s daughter believes he should live with her. Bill’s son believed he should be moved to a nursing home. The result was that Bill’s sister made the decision in consultation with Bill’s carers and eventually the two children accepted the decision. The existence of the Enduring Guardian solved a potential family dispute at a time when Bill certainly had enough difficulties in his life without his family fighting over what is best for him.

2. Steve was diagnosed with cancer some months ago. He has received both radiation and chemotherapy treatment without success. Steve was very sick during the treatment. Steve’s doctor believes that they should try another course of chemotherapy. Steve’s wife Sue is distraught. She believes that another course of chemotherapy will not work and Steve will only suffer. After much heartache Sue believes that Steve should be made as comfortable as possible until he dies rather than starting another form of treatment. As Steve has appointed Sue his Enduring Guardian Sue has the power to request that Steve received no further chemotherapy.

3. Brian has appointed his brother Graham his Enduring Guardian. Graham believes that Brian’s health has deteriorated to the stage where he cannot make decisions for himself. He approaches his brother Brian who disagrees. Graham makes an application to the Guardianship Tribunal for an order that his appointment as an Enduring Guardian take effect immediately. After considering all information provided by Brian, Graham and Brian’s service providers the Guardianship Tribunal makes an order that the appointment of Graham as Enduring Guardian take effect.

4. Jane has recently been diagnosed with early stages of dementia. She immediately appoints her husband her Enduring Guardian as she understands that her husband will be in a position to make decisions concerning where she lives and what health care she received when she loses capacity to make these decisions. Jane also appreciates that her husband might not outlive her and also appoints her niece to be her Enduring Guardian.

5. Zoran wants his wife Sylvia to make decisions about where he should live if he cannot make those decisions. Zoran also wants to appoint his sister-in-law Gabrielle to make decisions concerning what medical treatment he will receive because she is a nurse and has a greater understanding of medical issues than his wife Sylvia. Zoran will achieve this outcome by
completing two separate Enduring Guardians setting out the separate functions of Sylvia and Gabrielle on separate forms.

6. Stefan has appointed his friend Jacqueline his Enduring Guardian. Stefan is involved in a serious motor accident and is in a coma. Jacqueline can now make lifestyle decisions for Stefan. Some time later Stefan fully recovers and can make his own decisions. At this time the appointment of Jacqueline would no longer operate because Stefan has fully recovered.

7. Anne appointed her two daughters her Enduring Guardians some ten years ago. Approximately four years ago Anne was diagnosed with dementia. One daughter now believes Anne cannot make her own decisions however the other sister believes that her mother should still make her own decisions. The two sisters agree to seek advice from a doctor who assesses Anne and concludes that she is still capable of making decisions for herself. Both sisters are happy with this independent assessment.

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