Enduring guardianship

As mentioned in the previous section, a power of attorney, whether enduring or otherwise, enables your attorney to make only financial decisions on your behalf. To enable personal, health or lifestyle decisions to be made, you should appoint an enduring guardian. This is a legally binding appointment under the Guardianship Act 1987 (NSW).

What can an enduring guardian do?

Any legally competent person over the age of 18 can appoint a guardian (or more than one guardian) to make personal, health and lifestyle decisions on their behalf should they lose the physical or mental capacity to make their own decisions. Someone making such an appointment is known as the appointor.

The decisions that could be made on your behalf include:

  • where you will live
  • what medical or dental treatment you are to receive.

If a person objects to medical treatment, an enduring guardian cannot override them.

An enduring guardian appointment takes effect only when you are no longer capable and are ‘a person in need of a guardian’ under the Act (section 6A). If more than one guardian is appointed, you can direct that they make all or certain decisions jointly, or that different guardians have responsibility for different decisions. The appointment can also specify what functions the guardian is to exercise and any other conditions or limitations you wish to impose. It is important to be clear about any limitations you want to impose.

Requirements for appointing an enduring guardian

There are also certain procedural requirements, such as appropriate forms and witnesses, for the appointment to be valid. They include:

  • both you and your prospective guardian must sign the form in front of a solicitor, barrister or Registrar of the Local Court or overseas registered foreign lawyer (but you need not sign at the same time)
  • the appointment must be in writing and follow a standard format.

Certain people cannot be appointed enduring guardians. They include:

  • people under 18
  • anyone directly or indirectly involved in, or responsible for, your medical treatment.

Appointment of enduring guardian forms, with instructions for valid completion, are available free from the Civil and Administrative Tribunal (Guardianship Division).

It is suggested that the original appointment be kept with your will, and copies be given to your guardian, doctor, and other health care workers.

Revoking and resigning appointments

You can revoke your enduring guardian appointment as long as you still have the capacity to understand. A revocation must be in writing, witnessed by a legal practitioner or registrar of the Local Court, and given to the person previously appointed enduring guardian.

The enduring guardian can resign their appointment. If the appointor still has capacity, the enduring guardian can simply give them written notice of resignation. If the appointor has lost capacity, the guardian must obtain the approval of the Civil and Administrative Tribunal.

Advance care directives (living wills)

An Advance Care Directive (ACD) or living will is a way of recording your health and personal care instructions for family members, doctors and healthcare workers if you are unable to make those decisions for yourself. An ACD is useful if you are not confident that the person who will make such decisions for you in such circumstances (the person responsible) will carry out your wishes. It may also assist your enduring guardian. A copy of the document should be provided to your doctor and other health care providers, family and friends and enduring guardian if you have appointed one.

In NSW there is no legislation governing ACDs but they are legally binding under common law. The ACD must be written when you have capacity, and be clear and specific enough to guide treating doctors, and be as up to date as possible, signed and witnessed. It can then function as an extension of the common law right to determine your own medical treatment.

You cannot direct that your enduring guardian or any other person carry out an unlawful act such as euthanasia.

There are internet resources for preparing advance care directives, including

Withdrawing or withholding medical treatment

In general, people who are over 18, have capacity and are able to understand their condition and the options for treatment may not be given medical treatment without their consent. They are entitled to adequate information to make an informed choice. The same applies to withholding consent and refusing treatment.

Doctors cannot be forced by relatives of a patient to commence or continue medical treatment that is technically ‘futile’, that is, where it is impossible or extremely unlikely that medical treatment will return the patient to a meaningful quality of life. Treatment can also be withdrawn where it is considered unduly burdensome, or not in the patient’s best interests. The most difficult task where the patient is unconscious or otherwise incompetent is to get good evidence of what the patient would regard as a ‘meaningful quality of life’.

Where conflict exists between the patient’s family and the patient’s doctors as to whether medical treatment that is apparently ‘futile’ should be continued, the issue can be discussed by the Hospital’s Clinical Ethics Committee. If the relatives continue to dispute a withdrawal of treatment decision then relevant doctors should specify that as a reason for not signing the death certificate. This will then activate the jurisdiction of the coroner.

'No CPR' (cardio-pulmonary resuscitation) orders may be written in consultation with a terminally ill patient and the patient’s family, in accordance with hospital guidelines, to avoid the indignity of life ending in the pressure of an emergency attempt at resuscitation.