Deeds of Enduring Guardianship
1. Enduring power of guardianship
An enduring power of guardianship is a legal document appointing someone to make personal or lifestyle decisions on your behalf. The appointment begins when you are unable to make your own decisions.
When making decisions on your behalf, your guardian must:
- take into account any wishes you have expressed
- act in your best interests
- wherever possible, make the same decision that you would have made.
You cannot appoint a person who is providing you with professional care, treatment or accommodation.
2. Deciding your guardian’s powers
It is up to you to specify what sorts of decisions you want your guardian to make. These will generally be decisions around practical issues that affect your daily life, such as where you live or what sorts of activities you do.
You can limit how your guardian uses these powers. If you do not specify any limits to the powers of an enduring guardian, then they will have the same decision-making powers that a parent would have over a child.
You should discuss these with them before making the appointment.
3. Medical decisions
If you have appointed a person as your agent under enduring power of attorney (medical treatment), their decision about your medical treatment will have priority over the decision of your guardian.
If your guardian withholds consent to proposed medical or dental treatment, a practitioner may only provide treatment after notifying your guardian and giving them an opportunity to apply to the Guardianship List of the Victorian Civil and Administrative Tribunal (VCAT) about the treatment.
A guardian does not have the authority to consent to medical procedures that are likely to lead to:
- infertility
- termination of pregnancy
- removal of tissue for transplants.
Your guardian must apply to the Guardianship List of VCAT for a decision about whether these procedures can be carried out.
If you wish to appoint a person who can refuse medical treatment in all circumstances, it is best to make an enduring power of attorney (medical treatment).
4. Appointing decision-makers
You can only appoint one guardian. However, you can also appoint an alternative decision-maker, so that if your guardian is unable to carry out the role there is someone who can step in.
An alternative guardian can only act if your guardian loses capacity, dies or if they are absent for a period of time, such as if they are travelling overseas.
If you have capacity, but are reluctant to appoint a guardian, your family and friends should still know what you want in relation to health care, financial decisions, palliative care, resuscitation and accommodation choices. Your family should record what you want and the date when you made these statements, so they can carry out your wishes if you are unable to do so. Eventually you may wish to appoint a guardian, but remember you can only make this decision if you have capacity.
5. What happens if I don’t have a guardian and I lose capacity?
If everyone agrees about the treatment or care you need or where you should live it is likely that your family and health care professionals can make decisions about your welfare without an enduring power of guardianship in place.
If your family does not agree with health professionals about what is best for you, they can apply to the Guardianship List of VCAT to appoint a guardian.
The Guardianship List will appoint a guardian if this is appropriate. Any statements you made while you had capacity about what you wanted will be very important to guide the decision-maker.
The Guardianship List may appoint the Public Advocate as your guardian as a last resort, such as if you have no family or there is a need for an independent person to make decisions.
|