Contrary to popular belief, an individual’s parents, spouse or significant other are not always automatically empowered to make these decisions on their behalf.
It is always best to seek more detailed advice when making these important decisions as there are a number of options available. These include:
A guardian is essentially a legally appointed substitute decision-maker. A guardian is granted powers only as is necessary to accomplish what an individual cannot do independently.
Individuals can choose to create a legal document called an ‘enduring power of guardianship’ that authorises a person to make personal, lifestyle or treatment decisions on behalf of themselves.
A guardian can also be appointed by the courts. Unlike the power of attorney, each state has a guardianship board or tribunal which supervises the guardian.
The most common functions of a guardian are making decisions on accommodation, health care and medical and dental treatment. Individuals are able to authorise guardians to exercise additional functions, such as the right to withhold consent for medical treatments in certain situations.
An enduring guardian cannot make financial, legal decisions or perform the following on behalf of an individual:
- make a Will
- manage finances
- override any objections to medical treatment
Enduring power of attorney (financial)
A financial ‘enduring power of attorney’ is a legal document that remains valid if the nominator becomes mentally incompetent. The agent who is appointed can make any legal or financial decisions on the nominator’s behalf.
The appointed attorney is able to make a decision on property or financial affairs, for example, operate bank accounts, pay bills and purchase and sell property. They are, however, unable to make lifestyle decisions.
Once an agent is appointed, the power will last until the nominator chooses to end it, they die, a specified terminating event occurs or the power is cancelled by the court.
Enduring power of attorney (medical treatment)
An enduring power of attorney for medical treatment authorises the agent to make decisions about an individual’s medical care and treatment. This power takes effect if, and when, the nominator becomes incapacitated, whether temporarily or permanently.
The agent holds all the powers over the treatment that the nominator would have held. They are allowed to refuse all medical treatment, except for emergency treatment and palliative care.