Enduring Guardianship is the legal form of appointment of a substitute decision-maker in areas concerning general health and lifestyle. An Advance Care Directive (ACD) which is sometimes referred to as a ‘Living Will’ is a different document. It should provide a clear statement on the wishes and values that need to be considered before medical treatment decisions are made on your behalf. Discussions around these issues are best done with people who are important to you and your doctor.
An ACD can be attached to an Enduring Guardianship appointment. Alternatively, An Enduring Guardian can be instructed by a separately written ACD. Having Advance Care Directive and Enduring Guardianship as separate forms provides greater flexibility to adjust your ACD as health conditions change without the need to execute a new Enduring Guardianship document.
There is no prescribed format or form for an ACD. It can be simply written down. Many are concerned that they should not be forced to linger on in old age or in states of physical suffering. There is the fear that they will lose control over prescribed medical treatment. Both an enduring guardianship and/or an advance care directive go some way in providing control.
In legal terms you own and control what happens to your body. If you are not in the position to decide at the time, then having a valid document that sets out what treatment you want to refuse to receive can be useful. You cannot instruct a clinician to perform a medical procedure, but you can refuse to have one that they want to carry out. If you are competent at the time, then you can personally issue those instructions. If not, then an advance care directive could have addressed the matter. A doctor must be aware that the directive exists for it to be effective.
Enduring guardianships and advance care directives are legal mechanisms that may join wills and powers of attorney as a routine subject in completing a financial plan. Legal advice is important as an invalid authority has no capacity to achieve the desired outcomes. It is advisable to ask your doctor to sign the directive to verify that you have capacity when you made it, and then you should sign it in front of an independent witness. This witness should also be 18 years of age or older.
It is advisable to discuss your ACD with your family, your health care providers and your friends so that they know your wishes and reasons for making those decisions. Give copies to everyone who may be involved in making healthcare decisions for you if you lose the capacity to do so yourself.
ACDs are legally binding under the Common Law and if there is evidence of a competent person’s wishes, and if those wishes would apply to the current situation, then they must be honoured (provided they are not against the current law). No-one can overturn those wishes.
