When we talk to clients about their estate planning needs, many assume that they don’t need to appoint an enduring guardian if they already have an enduring power of attorney. It’s actually important to have both appointments in place as they do different things. An enduring power of attorney enables another person to act on your behalf in relation to financial matters in the case of emergency, mental incapacity or disability. A person appointed as an enduring guardian can make lifestyle and health decisions on your behalf in the case of your mental incapacity. Such decisions include where you should live, what health care you’ll receive, what kind of personal services you’ll receive and consent for medical and dental treatment.
Can’t my next of kin do that?
The term ‘next of kin’ has no legal status in Australia, but there is a process for substitute decision making that applies to all adults in NSW if an appointment of enduring guardian is not in place. If the person does not have a spouse or de facto spouse, an unpaid carer becomes responsible but if there is no unpaid carer, then a close friend or relative becomes responsible. What if you don’t want your spouse to make decisions on your behalf, or you have very specific wishes about how you’d like to be cared for, or you have a close friend that you want to make health and lifestyle decisions on your behalf? You should set your wishes out in an Appointment of Enduring Guardian so there can be no arguments or concerns about how you should be cared for. This document will trump any potential decision-making by others, including your partner.
Make your wishes known
Consider the example of Robert. He is in his late 50’s and is divorced. He has no children and his parents have both died. Robert does not get on with his two sisters but he is very close to his adult nephew, Cameron. If Robert was in an accident or developed dementia, he wouldn’t want his sisters making health and lifestyle decisions on his behalf, but he is confident that Cameron understands his needs, wishes, values and beliefs. He should appoint Cameron as his enduring guardian so that there is no question about who has the legal authority to make decisions on Robert’s behalf.
If you’re unable to make your own decisions because of a temporary or permanent loss of capacity, you can’t always be sure that your informal support networks or people important to you will be able to make significant decisions on your behalf. Adults at all stages of life should have both an enduring power of attorney and an appointment of enduring guardian in place. It can be tempting to put these off until a later time but unexpected events happen and it’s best to be prepared by taking control of your future needs, as best you can.