The importance of appointing an enduring guardian

The Grattan Institute has just released a report “Dying Well” noting that although 70% of Australians want to die at home, only 14% end up doing so, with the rest passing away in hospital or aged care facilities.  The report encourages policy and attitudinal change to assist people to “die well” – at home and in home-like environments, surrounded by family, friends and effective services.

Palliative care

Interestingly, the report encourages the wider use of “advanced care plans”, by which someone can give instructions as to the type of health care they wish to receive if they become so seriously ill that they are no longer able to give such direction.

At this stage, advanced care plans have no legal status in NSW – there is no “advanced care plan” legislation nor a prescribed form to use.  At best, the NSW Department of Health has published its Advance Planning for Quality Care at End of Life Action Plan 2013-2018.

The Plan notes that the hierarchy of who can consent to medical treatment for a person incapable of doing so for themselves is as follows (Guardianship Act 1987 (NSW)):

  • the patient’s lawfully appointed guardian (such as a guardian appointed pursuant to an Appointment of Enduring Guardian);
  • If there is no guardian, the patient’s spouse;
  • If there is no spouse, a person who has care of the patient;
  • If there is no such person, a close friend or family member.

It is important to note that only guardians appointed through formal means are permitted to make end-of-life decisions, such as withdrawing life-sustaining treatment (FI v Public Guardian [2008] NSWADT 263).  Hence why appointing an Enduring Guardian is so important.

Both the community and health professionals need to discuss more openly the limits of health care and people’s wishes to die at home.  Without systemic policy change, it is unlikely that such discussions will occur or that services will be reoriented to meet people’s preferences for dying.

– Grattan Report “Dying Well”

Contact Melissa Lammers on 9526 3444 or mlammers@shirelegal.com.au for further information.

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