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Here you can find general information regarding some of our areas of practice......every one is different, so it is always best to get advice ensuring that all of your circumstances have been considered...
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What if I become incapacitated and I haven’t appointed an Enduring Guardian?

The degree of difficulty will depend on the medical people you are dealing with and the persons circumstances. In theory there should not be a problem in most cases.

The Guardianship Act says that when a person cannot make a medical decision for themselves then the decision can be made by the ‘person responsible’ (except in cases of sterilisation or unusual medical matters). The person responsible is defined in a pecking order as:

  • the guardian (appointed by an Enduring Guardianship appointment or Guardianship Tribunal) (or if none then...)
  • the person’s spouse (must have a close and continuing relationshp and not be under Guardianship order themself) (or if none then....)
  • the person’s carer (must not be paid for such care except by way of a carer’s pension). If the person goes into a nursing home or similar, the person who was the carer before going in continues and the nursing home or any staff do not take over (if none then...)
  • a close friend or relative of the person.

The issues that arise appear to be:

  • spouse - who is the spouse when a person has a legal spouse and a de-facto spouse;
  • what is the status of children when there is a de-facto spouse or a separation from the legal spouse;
  • when a person is being cared for by only one of their children or by a non-child, that person can override the wishes of the (non-carer) children - will that cause conflict?
  • what if there are several ‘close friend(s) or relative(s) and they have different views on the treatment regime?
  • what if the doctor or nursing home need a signed consent - who will they consider has the capacity to give that consent - will they want to get involved in a dispute as to who has the authority to sign and make decisions such as turning off life support?
In Summary
When does enduring guardianship end?
 

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Friday, 29 March 2024
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