When I draft an Appointment of an Enduring Guardian (AEG) I always include an Advanced Care Directive (ACD).

The appointment of an Enduring Guardian gives authority to your enduring guardian to act in your shoes regarding how and where you live and what medical treatment you are to be provided in accordance with your ADC. As a safeguard, the appointment of an Enduring Guardian should stipulate that it can only be invoked when a specialist consultant certifies that you do not have the mental capacity to make decisions regarding your lifestyle and medical treatment. Although I strongly recommend that an ADC be included in an appointment of an enduring guardian, it may be a document on its own.

It is often felt that appointing an Enduring Guardian is only for the elderly. I believe that it is for everyone. Unfortunately, one of my clients in his 30’s had a stroke where his Enduring Power of Attorney and AEG allowed his business to continue and appropriate care provided, in accordance with his wishes during his 6-month mental incapacity.

An Advanced Care Directive is a legal document setting out your wishes regarding the type of medical treatment you wish to receive or refuse and the lifestyle that you wish for yourself. The Supreme Court of New South Wales has determined that a valid ACD must be followed.

To create an ADC you must be:
a.   Over 18 years;
b.   be capable of making health care decisions over the health care you wish
and be aware of their implications and consequences; and
c.   communicate specifically the treatments that you would accept or refuse.

To make an AEG you need the assistance of a solicitor who will certify that you understand and realise the consequences of your AEG, whereas an ACD does not require the assistance of a solicitor, although highly recommended. It should be written down and witnessed. In all cases no matter your choices, you will be provided with appropriate palliative care.

In NSW there is no specific form compared to other states. If you or someone you know has any queries do not hesitate in contacting me.


0419 233 670
ps. I am available to discuss legal matters either in my office or by Zoom conference; please note that notary services must be undertaken in person.

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Published On: March 1st, 2022 / Categories: Family Law /

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