Enduring Guardianship documents and an Advanced Care Directives are similar legal documents which ensure that you have autonomy to make decisions about future health care, while you have capacity to do so, in anticipation of a time where you may not be able to make those decisions yourself. They’re important tools to ensure that serious medical treatment can be delivered with dignity and with your own values in mind.
How are these documents different and how do they operate?
Enduring Guardianship
An Enduring Guardianship enables you to appoint a trusted family member or friend to make health care decisions in your place should you become incapacitated. It is a significant legal document, and the decision to appoint someone as your guardian should not be made lightly.
In this circumstance, a guardian is able to make health decisions in your place, and is guided by the terms of their appointment included in the legal documents that you sign prior to losing capacity. You can limit a guardian’s power, or explicitly prohibit them granting permission for particular procedures.
A guardian is able to consent on your behalf to a range of health and care decisions, including what medicines you receive, to consent to most surgeries and to decide whether you require residential care. These powers are only activated in a circumstance where you are unable to make these decisions yourself, such as through loss of capacity through disability, dementia, injury or severe mental health crises.
Advanced Care Directive
Separate to the appointment of an Enduring Guardian, an Advanced Care Directive is a record of your specific instructions as to what healthcare you wish to receive. Sometimes, these are called ‘living wills.’
An Advanced Care Directive is a direct expression of your consent. Generally prepared with a medical practitioner, an Advanced Care Directive goes through specific procedures, treatments and medications and indicates your consent to each of these factors individually. This can be done in anticipation of the complications of a specific illness, or with a view to palliative care being required.
A potential limitation of an Advanced Care Directive is that it may not anticipate the exact circumstances which arise after you have lost capacity, which results in there being no prior consent for your treating medical professionals to rely upon, and challenges identifying who can provide consent on your behalf.
How did these documents interact?
The most powerful form of consent to a medical procedure is the consent of the patient themself. Therefore, where a properly executed Advanced Care Directive exists, the directions outlined in this document will prevail over the decision of an appointed Enduring Guardian.
The role of Enduring Guardian in this circumstance would be to step in where the Advanced Care Directive is unclear or incorrectly executed, or does not contain appropriate instructions for the circumstances which have arisen.
In cases of serious illness, Advanced Care Directive can be used by an Enduring Guardian to guide their decisions on your behalf.
If you wish to appoint an Enduring Guardian, get in touch with us today. The NSW Guide to preparing an Advance Care Directives can be found here.
