An enduring power of guardianship is a legal document by which, you authorise a person to make personal and lifestyle decisions for you.
In the event that you are not be able to make decisions for yourself because of age, illness or accident, and you have appointed an enduring guardian then that person will have the power to decide about all your lifestyle matters including where you should live and whether you should work. In effect, the guardian has similar powers to that of a parent in his dealings with a child. If no enduring guardian has been appointed then it may be necessary to apply to the Victorian Civil and Administrative Tribunal (Guardianship List) for the appointment of a guardian.
The guardian can only make decisions for you if you become mentally incompetent. The enduring power of Guardianship does not take effect unless you become mentally incompetent. If this occurs, your guardian can make decisions about personal and lifestyle issues. The extent of these powers depends on whether you retained all the powers of a guardian; or restricted them to specific powers.
CAN A GUARDIAN REFUSE TREATMENT?
As well as deciding what treatment is appropriate, your guardian can also refuse treatment on your behalf. If this happens, the treating doctors can only provide treatment if they believe it is in your best interests. The doctor must also give your guardian the opportunity to apply to the Victorian Civil and Administrative Tribunal, which have ultimate power to make a decision about what to do.
If you have appointed one person as attorney under an enduring medical power of attorney and another as a guardian under an enduring power of guardianship the decision of the Guardian would prevail if there were a dispute as to whether medical treatment was to be refused or not.
CANCELLING THE APPOINTMENT
You can cancel an enduring Power of Guardianship at any time; however, you must be mentally competent to do so. The cancellation must be effected in a formal manner by executing the necessary form in the presence of the required witnesses.
The enduring power of guardianship will last until:
a) You cancel it (you must be mentally competent to do this);
b) You die; or
c) It is cancelled or suspended by the Victorian Civil and Administrative Tribunal because it is not being used in your best interests
The proposed guardian must sign an acceptance of appointment of Guardian, and should be present when the donor signs the power.
Two people must witness this form – one of these must be authorised to witness a statutory declaration, e.g., a lawyer and the witnesses must verify that you are mentally competent when you sign the document. Neither of the witnesses should be a relative of either the donor or the guardian.
NEED MORE INFORMATION
Behan Legal assists and advises on these important issues. For an appointment, call 03 9646 0344