26 Jun 2014

Advanced Health Directives and Enduring Powers of Guardianship

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Planning for the inevitable and the unlikely.

Ask yourself these questions:

  • Have you ever thought about what would happen in the event that you were in a serious car accident or suddenly became incapacitated by serious illness?
  • Do you have a clear view as to what sort of treatment you would consent to and in what circumstances you would prefer to be allowed to die?
  • Have you or your family made any plans for such circumstances?
  • Do you understand what would happen if you are not able to make decisions about your own treatment?
  • Do you have someone who you would trust to make these decisions for you if you are unable to do so?
  • Do they know what your wishes are in such circumstances?

If you are unable to make decisions about your treatment as a result of an accident or an illness (including a mental illness or dementia), someone else will be required to make the decision on your behalf, unless you have put in place an Advanced Health Directive.

An Advanced Health Directive is a document in which you set out your decisions about future medical or health-care treatment and can be prepared in consultation with your doctor. Having an Advance Health Directive in place can remove the burden of making life and death or other difficult medical or health-care decisions from your loved ones when you are unable to make the decision for yourself.

If you do not have an Advanced Health Directive, doctors are required by law to follow a set order of priority of ‘decision makers’, when seeking a decision as to whether treatment is consented to or refused.  Your next of kin is not the first person a doctor will seek a decision from. The order a doctor will seek a decision from begins with the person’s Enduring Guardian if one has been appointed.  If not, then a decision must be made by the person’s guardian, spouse, adult child, parent, sibling or unpaid caregiver, in that order of priority.

Whether you make an Advanced Health Directive or not, in order to ensure that the most appropriate person is in place to make personal, lifestyle and treatment decisions on your behalf in circumstances in which you are unable to do so, it is best to appoint someone you know and trust as your Enduring Guardian.

The person or persons you appoint as your Enduring Guardian should not only be someone close to you and someone who you trust, but also should have a clear understanding of your beliefs and your preferences in relation to medical treatment and lifestyle.

Appointing an Enduring Guardian will not only ensure that the appropriate person will make these crucial decisions on your behalf, it will also prevent the uncertainty and anguish of having to make these decisions falling to someone who does not have a clear understanding of your wishes or would otherwise not choose to have to make such difficult decisions.

So what is the best way to plan for the inevitable and the unlikely?

  1. Consider your preferences as to the treatment you would consent to or refuse, should you become incapacitated by accident or serious illness and not able to make decisions for yourself.
  2. Discuss you preferences with your loved ones.
  3. Consult your doctor about preparing an Advance Health Directive.
  4. Consult a lawyer about preparing an Enduring Power of Guardianship.
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About the Author


Joshua is a member of our Commercial practice group. He provides commercial legal services and has experience in commercial leasing, property law and conveyancing, wills and estate planning, commercial contracts, corporations law, mining law and bankruptcy. He has also worked in native title matters.

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