Enduring Powers Of Guardianship

Further to the last few months where I discussed the importance of having a valid Will and Enduring Power of Attorney (EPA) (financial/land dealings document), this month I’m covering another important document, the Enduring Power of Guardianship (EPG).

An EPG is a formal document which gives another person authority to make decisions on your behalf regarding your healthcare and lifestyle decisions at a time you are unable to make reasonable decisions for yourself. For example, this could be because you are suffering from dementia, had a stroke or are unconscious after a road trauma.

An EPG enables you to appoint a person to make decisions about your care when you cannot. The decision-maker is called the “Guardian” and you can appoint more than one person in the role, for example your adult children. The Guardian(s) must be 18 years of age and have full legal capacity when appointed. If you decide to appoint more than one Guardian, they must be able to work together as any decision made by the Guardians for you must be unanimous.

Once appointed if you lose capacity, the Guardian(s) will be able to decide includes matters such as where you will live (for example, should you be moved in a nursing home and if so, which one?), what education and training you should receive and what medical treatment you should receive.

An EPG cannot be used to authorise your Guardian to make decisions regarding your finances or your land dealings – an EPA is required for this. Using an EPA and an EPG, you can appoint one set of people to look after your financial matters and a different set of people to look after your health/lifestyle choices. It is often the case that the person you would trust to look after your finances is not the same person that you would trust to make decisions for you in relation to your health and well being.

If you have also signed an Advance Health Directive (AHD) (the document where you decide which treatments you will and won’t accept at a time you cannot give instructions for yourself), then the directions in your AHD must be followed before the medical professionals consult your Guardian, as your AHD is the document which must be followed first. If you have an AHD and there is a life/medical decision that needs to be decided on a matter not covered by your AHD, then the Guardian has the responsibility of that decision.

If you do not have an EPG and a decision needs to be made regarding medical treatments for you, there is a ‘decision-maker’s hierarchy’ which the medical professional follow. The medical professional will seek authorisation for treatments from the persons in the below list, starting at the top of the list and working down until the professional find someone readily available to make a decision for you:

  • Advanced Health Directive
  • Enduring Guardian (ordered by the State Administrative Tribunal or an EPG)
  • Guardian with authority
  • Spouse or de facto partner who is 18 years old and living with you
  • Your nearest relative aged 18 or older and who is in a close personal relationship with the patient – this would be your adult children, parents, siblings
  • Your unpaid carer; or
  • Any other person who is in a close personal relationship with you

If there is more than one person who could be consulted in the above categories (for example you have more than 1 adult child or multiple adult siblings), then the first person the treating professional can locate to make a decision is the person who is given priority. This may not be what you want – particularly if you follow a different religion or have different life views to your family members. If that is a concern for you, then it is important to have an EPG signed to make it clear whom you would like to make decisions for you.

You can use kits to draw up your own EPG. If you decide to do this, you are at risk that if the EPG isn’t properly prepared, the document may be invalid and not work when you actually need it. An improperly prepared EPG may even result in circumstances which are not what you had envisaged when you signed the document. It is recommended that you have an EPG prepared by an experienced lawyer to give you peace of mind that your Guardians won’t have experience unnecessary problems if they care called up on to make decision for you.

Just like the EPA, it is important to remember that it is when you lose capacity that you need an EPG and it is at that time, that you will no longer have the ability to make one. However you decide to have your EPG prepared, if you decide that it’s a document you should have, then it’s important that you actually get onto it and get one EPG prepared and signed.