As winter sets in and flu season takes hold across Australia, health professionals are urging individuals—especially older Australians and those with underlying conditions—to take extra care of their wellbeing. But as important as flu shots and hand sanitiser are, there’s another form of protection you may not have considered: having a legal plan in place in case you become too unwell to make decisions for yourself.
That is where an Enduring Power of Guardianship (EPG) comes in.
What Is an Enduring Power of Guardianship?
An Enduring Power of Guardianship is a legal document that allows you to appoint someone you trust to make personal, medical, and lifestyle decisions on your behalf if you are unable to do so yourself. These may include:
- What type of medical, surgical or dental treatment or other health care you receive (including palliative care and life-sustaining measures such as assisted
ventilation and cardio-pulmonary resuscitation); - What education and training you receive;
- Where you live (e.g. at home or in care);
- Who you have contact with;
- Which support services you can access;
- Who your doctors are;
- Day-to-day decisions about your personal care and wellbeing.
This is different from an Enduring Power of Attorney (EPA), which covers financial and property matters. your health and personal decisions.
The Flu Can Hit Harder Than You Think
While many people bounce back quickly from the flu, some people can become very unwell. In some cases, the flu can lead to serious complications like pneumonia, hospitalisation, delirium, or temporary loss of consciousness or capacity.
If you were to become seriously ill with the flu and could not speak for yourself, an Enduring Power of Guardianship ensures that a person of your choosing can make timely decisions on your behalf. Without this document in place,
It’s Not Just for the Elderly
Incapacity is not limited to the elderly. Severe flu, accidents, or sudden medical events can affect people of all ages. An EPG is a practical, low-cost way to ensure your wishes are known and that someone you trust is legally empowered to make personal decisions if you cannot.
How to Make An Enduring Power of Guardianship (EPG)
To make an Enduring Power of Guardianship, you must:
- Be over 18 years old;
- Have full legal capacity to understand what the document means;
- Use the correct form; and
- Have the document signed and witnessed properly.
You can choose more than one person to be your enduring guardian, but they must work together and agree on decisions for you. It is important to choose people who can work well together.
We strongly recommend getting legal advice to ensure your EPG is valid, reflects your wishes and works well with your other related documents such as your Will and Enduring Power of Attorney..
What happens if you do not have an Enduring Power of Guardianship?
If you no longer have capacity and do not have anyone formally appointed as a guardian, then the Guardianship and Administration Act 1990 (WA) provides a decision-making hierarchy list of family members who can make treatment decisions on your behalf. The family members in order of priority are: the spouse or de facto partner; children; parents; and siblings.
A treating health professional would get a decision from the first person in the hierarchy who is at least 18 years of age, has full legal capacity and who is available and willing to make the decision.
For all other types of personal and lifestyle decisions, there is no list. If there is an ‘informal process’ which is working well and everyone agrees about the decisions being made, then there is no need for someone to be formally appointed as guardian.
What if the informal process/least restrictive alternative is not working?
If the informal process is not working because people cannot agree on what needs to happen or people are not available to make decisions, then a guardian needs to be formally appointed. Other examples of where the informal process may not work are: if you have recently separated from your spouse or if you would prefer one of your children to be the one to “sign off” on a final health decision.
In the event that you become unable to make decisions and do not have an EPG in place, a family member or friend may apply to the State Administrative Tribunal (SAT) to be appointed as your guardian. This process can be time-consuming and expensive, and the appointed guardian may not be someone you would have chosen. It is common if family members aren’t able to agree, for the SAT appointment of a guardian who is a government employee at the Office of the Public Advocate.
What is the benefit of making an Enduring Power of Guardianship?
Preparing an Enduring Power of Guardianship while you have the capacity to make one:
- Gives legal clarity;
- Avoids delays and tribunal applications; and
- Allows you to choose someone or people you trust, to make medical, personal and lifestyle decisions on your behalf when you are unable to make those decisions yourself.
It is important to regularly review your Enduring Power of Guardianship to ensure that it continues to reflect your wishes and circumstances. You can change or cancel your EPG at any time, provided you have full legal capacity to do so.
Plan Ahead This Winter
Just as you would not wait to get a flu shot until you are already sick, do not wait until you are unwell to think about your legal protections. By making an Enduring Power of Guardianship, you can ensure that your wishes are respected and that decisions about your care and wellbeing are made by someone you trust.
At Lynn and Brown Lawyers, our Wills and Estates Planning lawyers can assist you to prepare an Enduring Power of Guardianship (and other related documents such as an Enduring Power of Attorney and a Will). Our lawyers can also assist you to make an application to the State Administrative Tribunal to be appointed as a guardian, or respond to an application which has been made by someone else.
If you have any questions regarding any of the above information, please contact our office today to make an appointment to speak with one of our lawyers.
Article written by Hannah Scallon.
About the Author: Hannah is a graduate of both the University of Western Australia and Notre Dame University, having completed a Bachelor of Arts (major in ‘Law and Society’’ and minors in History and Psychology) in 2016 and a Bachelor of Laws in 2018.
