I often get asked what the difference is between a document appointing an Enduring Guardian and an Advanced Care Directive. On the surface, they look pretty similar, they both deal with future medical treatment, they both can be revoked at any time while you have capacity, and they both serve a similar overall purpose in relation to dealing with future care needs, but they are in fact very different documents.
In NSW, we have two legally enforceable documents to deal with the situation where someone loses capacity to make decisions. An Enduring Power of Attorney appoints someone to deal with financial, business and property decisions and an Appointment of an Enduring Guardian appoints someone to make medical and lifestyle decisions. Your Enduring Guardian can make decisions about where you live, what health care you receive and can consent to medical or dental treatment for you if you no longer had the capacity to make those decisions. You can specify some detailed directions such as allowing access to medical records, and if more than one guardian is appointed, whether they need to agree on any decisions made. This is usually a document that a solicitor prepares as part of general estate planning and to be enforceable you must have capacity to understand the nature of the document at the time of signing. Your signature on the document also needs to be witnessed by a legal practitioner, Registrar of the court or an approved employee of the NSW Trustee & Guardian in order to be valid.
An Advanced Care Directive (ACD) on the other hand lets people know your wishes about the types of healthcare and treatment you would like to receive if you became seriously ill or injured. It can outline your view of types of medical treatment, such as resuscitation, medications or life-prolonging medical treatment, as well as your values and life goals. If you have a valid ACD in place, it must be followed by your treatment providers and anyone appointed to make medical decisions on your behalf provided that it is valid and that it applies to the circumstances of the current medical situation eg. A short-lived incapacity due to a concussion is a different medical situation to someone who has suffered a stroke and may not recover. The ACD is usually prepared with a treating doctor or other healthcare provider who will need to witness your signature and sign the document to confirm your capacity.
The Enduring Guardian is used to appoint an appropriate decision maker however the ACD sets out specific wishes in relation to medical treatment options that the Enduring Guardian must follow provided the treatment providers agree it is valid and applicable to the specific circumstances. There may be treatment situations the ACD does not cover, such as a temporary incapacity, where having an Enduring Guardian appointed to make decisions is important. If you would like more information about these documents, you should discuss them with a solicitor. KC Hilton, WNB Legal.