Kydon Segal Lawyers

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Enduring Guardianship

A power of attorney only authorises an attorney to act in relation to financial matters. It does not allow an attorney to make health or lifestyle decisions for the principal, such as whether they would like to be placed in a nursing home when they become unable to live in their home. Anyone who would like another person to make personal decisions on their behalf should appoint an enduring guardian under the Guardianship Act 1987.

The appointment of an enduring guardian enables a person to appoint someone they trust to make personal and lifestyle decisions on his or her behalf. An enduring guardian’s appointment comes into effect only during those periods when the appointor has the need of a guardian, that is when the person lacks the capacity to make his or her own decisions.

There are significant advantages in the appointment of someone with personal knowledge of the person, someone who is aware of their likes and dislikes and would have some understanding of their wishes and views.

It is also possible to give directions to your enduring guardian. For example, if you fell ill and did not wish to be placed on a respirator or tube fed, you could state this in your appointment of an enduring guardian.

The case of Ms Schiavo in the United States highlighted the importance of stating your wishes and appointing a person as your enduring guardian. Ms Schiavo suffered irreversible brain damage after suffering a heart attack in 1990. Ms Schiavo was tube fed nutrients and fluids to stay alive. Her husband, Michael Schiavo, had sought for years to remove the feeding tube and allow Ms Schiavo “die naturally”. He went to Court on several occasions and fought for the right to do this. Ms Schiavo’s family however insisted that she should be kept alive.

In NSW, the years of fighting in Court could have been avoided had Ms Schiavo appointed an enduring guardian who understood her preference not to be kept alive by artificial means or be tube fed. In making the appointment, Ms Schiavo could have also directed her enduring guardian to exercise his or her functions subject to specific requirements or limitations.

It is also possible to complete an advance directive. This document expresses your wishes regarding an end of life decision. Although these directives are not recognised at law in NSW at present, it is unlikely that any end of life decision made in consultation with medical advisers and taking into account an advance directive would be found unlawful.

The appointment of an enduring guardian provides a person with some sense of security and control over their future.