Transcript of Video
Caller: Good morning. I'd like my family to know about my wishes if I get too sick and I'd like them to be able to tell the doctors for me. How can I do that legally?
Lawyer: It's a good start to talk to your family about your health wishes before something happens. This might be about life support or the use of medications. By appointing a specific person as your guardian they will be able to explain your health wishes to your doctors if you are too sick to do so yourself.
Caller: So how do I do that? Can I just tell someone or do I have to do something more formal?
Lawyer: There are legal formalities to appointing an enduring guardian. It needs to be in writing, signed, witnessed and registered. It's important to complete the documents when you still have the mental capacity to do so. That way it will endure through any illness or incapacity that happens later on.
Caller: You mentioned the phrase mental capacity. What do you mean by that exactly?
Lawyer: When we talk about mental capacity in this situation we mean whether you understand the nature and content of what you're signing and whether you're freely appointing someone to make decisions on your behalf.
Caller: I see. So what sort of decisions would my guardian make for me?
Lawyer: If you lose capacity your guardian can make decisions about your healthcare and accommodation, who visits you and what sort of support services you should have. You might have a view about life prolonging treatments or long term care facilities outside your home.
Caller: Can I ask anyone to be my guardian?
Lawyer: It's important to choose this person carefully. Choose someone you trust, who knows and respects your wishes and preferences. It could be a family member or a friend so long as they're over 18.
Caller: Can my guardian manage my money for me as well?
Lawyer: No. Your guardian can only make decisions relating to your health and
Lifestyle. They can't make financial decisions for you. This can be done by an enduring power of attorney but you will need to complete a different form. Have a
look at our video covering the basics of powers of attorney. It's on our website.
Caller: So what happens if I leave Tasmania and go to the mainland? Is it still valid?
Lawyer: Most Australian States and Territories will recognise a Tasmanian enduring
Guardianship, however, some don't. You will need to check with the relevant authorities. You might also want to think about whether that person can still make the best decisions for you if they don't live in the same state.
Caller: So I'm just thinking about that. What if I changed my mind about the person I choose to be my guardian or the conditions in my enduring guardianship?
Lawyer: You can revoke or amend an enduring guardianship or appoint a new guardian at any time but if your mental capacity is in doubt then those changes might not be valid. A doctor may need to confirm that you have capacity. Any changes that you do make must be in writing and registered.
Caller: What do I do if I don't think, or my family doesn't think, that my enduring guardian is making the best decisions for me?
Lawyer: If there is any concern that your guardian isn't acting in your best interests a family member can apply to the Guardianship and Administration Board to review the appointment.
Caller: Right I think I've got all that now. Do I need a lawyer to do all this for me or can I do it myself?
Lawyer: It's always a good idea to get legal advice before signing any legal documents. Whilst it is possible to do your own enduring guardianship we would only recommend this if it's very straightforward.
Caller: Can Legal Aid draft my enduring guardianship for me?
Lawyer: Unfortunately Legal Aid doesn't do this type of work but our free telephone advice line can give you the contact details of a lawyer in your area who does.
Caller: That helps me a lot. Thank you.
Lawyer: You're welcome.