It’s a Living Thing
All you need to know about living wills
It’s a situation that everybody dreads. You’re lying motionless and stricken in a hospital bed. Perhaps important decisions need to be made about your treatment, your property or your life. But you can’t move, you can’t speak – you can’t make them. Does that mean any wishes you might have had while you were conscious could be ignored or overridden? Is there any legal way of preparing for a situation like this? Well, yes, there is; but it has to done properly if you want it to be binding.
Living wills: are they dead letters?
You might have heard of something called a “living will”, or an “advance directives”. As the name implies, this is a document in which you explain what you want to be done should you become incapacitated.
However, in New South Wales, a living will will only be legally binding if:
- you had capacity when you wrote it
- you made it by choice, it was not forced upon you
- it has clear and specific details about treatments that you would accept or refuse
- it is current
- it applies to the situation you are in at the time.
A couple of these things are unlikely, especially the last one and keeping the document up-to-date. But it will be preferred to any other opinion (unless there are very strong arguments to the contrary).
A living will is an excellent idea if you suspect your intentions will be difficult for people to follow when you become incapacitated.
You should provide copies to your doctor, family or a responsible friend.
Enduring guardians: ensuring your wishes
While a living will is certainly better than nothing, appointing an enduring guardian is better still. Living wills have become less common since this became possible under the Guardianship Act 1997. This is because enduring guardians are empowered to make legally binding decisions.
An enduring guardian can make personal, health or lifestyle decisions on your behalf when you are no longer physically or mentally capable of making them. You can direct your guardian to follow your wishes, or impose conditions or limitations on what they can do. You can even create a number of guardians to make different decisions. All these things need to be clear, though, if the law is to recognise them: that’s why it’s well worthwhile getting us to draft them for you.
Of course, there are also some legal restrictions – both you and your guardian have to be over eighteen, and your guardian can’t be someone responsible for your medical treatment (Lawyers just don’t trust doctors, do they?). And you can’t instruct your guardian to do something illegal – that includes euthanasia.
It’s about you, not your money: guardians and attorneys
This all sounds a bit like a power of attorney, if you’re familiar with that sort of thing. Don’t get confused with what’s known as an “enduring power of attorney”. Because the latter also have the authority to make decisions on your behalf when you become incapacitated, they’re also called “enduring.” The difference is related to the kind of decision each can make: attorneys can only make financial decisions, while guardians make personal or medical decisions.
But what both guardians and attorneys have in common is that their appointment needs to meet a number of legal procedural requirements. That’s where we come in. The form (yes, it needs to be a particular form, in writing), must be signed by both you and your guardian, witnessed by a solicitor, barrister or clerk of the Local Court. That’s not quite as bad as it sounds, as both of you do not have to sign at the same time.
Should you decide that you don’t want your appointee to be your guardian, you can revoke the appointment in writing, signed and witnessed by us or a Local Court clerk (make sure the now ex-guardian gets a copy!). As for guardians, they can also resign by giving written notice. If there is no-one, when needed, it will mean getting someone appointed by the NSW Guardianship Tribunal.
Come to us for much less fuss
So contact us and get us to set up an enduring guardianship. Later will be too late if (heaven forbid!) you should end up lying comatose in a hospital bed. What if your family disagree, or don’t agree with your doctors? Understandably, it’s not a prospect you want to dwell on. But being prepared is worth it: it means peace of mind for all parties concerned.