Planning? a will is something that many Australians do not want to think about. However, estate planning is important, and should include provisions for who shall make decisions for you if you were to suffer a traumatic injury that leaves you incapacitated.
An enduring guardian is a person you appoint in your estate plan to make medical, health and lifestyle decisions that you are no longer able to make. You can change your appointed enduring guardian at any time provided you have the capacity to do so.
Capacity refers to your ability to make medical, health and lifestyle decisions for yourself. A person has the capacity to make their own decisions if they can: understand information provided to them and the different choices they have, deliberate on the information and choices, and communicate their choice to others.
Appointing an enduring guardian
Consider very carefully who you will appoint as your enduring guardian. They are responsible for decisions such as where you will live and what health care you receive. They will also provide consent for medical and dental treatments on your behalf. Your enduring guardian should be someone who will take into consideration both your past and present views. Things to be considered are relevant professional advice regarding your situation and the views of loved ones when making decisions on your behalf.
You may appoint more than one person to be your enduring guardian. If you appoint more than one person to jointly act as your enduring guardian they will need to be in agreement for all decisions made on your behalf and act together. If they are appointed severally they are able to act independently of each other.
The person or persons you appoint must be more than 18 years old. A legal form of appointment must be signed by you and your appointed enduring guardian/s and an eligible witness to show that the enduring guardian understands their role.
What an enduring guardian can and can't do
It is the role of your enduring guardian to decide on services you may need, your accommodation situation or health care. These include, but are not limited to:
- Services: nursing care, at home support and any recreational services that you may need.
- Accommodation: what place would be best for you; for example, at home, hospital, aged care facilities or respite care.
- Health care: choose your doctors, end of life treatment, and medical and dental treatments you may need.
An enduring guardian cannot make financial decisions on your behalf or any decisions about your property. This is the role of an enduring power of attorney, which should also be a part of your estate plan.They also can't offer consent for any treatment you have objected to or make decisions that are not in accordance with the law.
Talk about an enduring guardian with an estate planning lawyer to understand what this will mean for you and take control of any future events.