It’s not just minors who need a guardian
You have insurance so you and your family will be financially cared for in the case of an incapacitating accident. But what about the actual care you’ll personally receive? Two star? Top of the range? And who’ll make those decisions if you can’t? This is exactly where a guardian steps in, and it’s wise to chose one yourself — this means well before you may ever need one. (By the way, a guardian is not a ‘living Will’ nor a power of attorney, and neither may you want your spouse to do it.)
Having the appropriate levels of insurance mean should the unthinkable happen, both you and your loved ones will be taken care of. It’s a peace-of-mind thing, as well as being incredibly practical.
However, what about the next step? Where you’ll be placed in rehabilitation? Whether you’ll be placed in rehabilitation? Who will sign forms if you can’t? Does getting to your own podiatrist, dentist or hairdresser matter?
Just like buying the appropriate insurance, appointing an appropriate guardian is not only practical, it offers peace of mind.
But what exactly is a “guardian”? Is it something in your Will? Is it what’s sometimes called a “living Will”? Is it an enduring power of attorney? Or a general power of attorney? And can’t your spouse just do it?
Some broad definitions
You appoint a guardian through an “enduring guardianship agreement”. As a legal document, it needs to be professionally prepared, executed and witnessed.
An “enduring guardianship agreement” — or guardianship — is different from both a legal Will and a “living Will”. It’s also different from a power of attorney — both enduring and general.
A “living Will”, which is more correctly known as an “advance directive”, directs your wishes if you’re alive, but can’t communicate (such as if you’re unconscious or on life support). It’s not legally binding in some states, so can be challenged, but, it’s still preferable to have one. Also, every state and territory has its own guardianship laws, and while they’re very similar, it’s wise to check the appropriate regulations.
You can appoint one or several guardians, and you can ask for them to act “jointly” or “severally” — “jointly” meaning they all need to act unanimously, “severally”, meaning they can act on their own.
(You can also revoke the guardianship appointment, should you recover your capacity to make decisions. Although this decision should not be taken lightly, and you may wish to reinstate inactivated guardianship in case you once again suffer the undesirable.)
Guardianship agreements are really an integral part of estate planning, which is all about thinking then planning for “the unexpected”.
Whom should you choose?
Hopefully, like insurance, you’ll never need to activate your guardianship agreement, and having one isn’t morbid, rather it’s sensible.
Yes, your spouse can make decisions for you, but having a legal, enduring guardianship agreement removes any doubt about who can decide what.
Choose your guardian wisely, not to “appease or please” someone. If you think a sibling or adult offspring may be more in tune with your views than your spouse — despite the fact you love your spouse very much — then choose that sibling or adult offspring.
Or think about this: if you’d rather your estranged spouse didn’t make decisions about your personal care if you can’t, then appoint someone else.
Ultimately, your appointed guardian should be someone who understands your values, and whom you trust implicitly.
If you haven’t appointed a guardian and unfortunately need one, and there’s “difficulty in the family”, then the state can step in and delegate any necessary functions to government agencies. While that’s a handy backstop, wouldn’t you rather someone who knows you deciding what personal care you’ll receive?
You choose what they can do
If you like, you can empower your guardian to either decide or execute pre-written instructions about where you will live, your health care and any other personal or lifestyle services for you while you’re incapacitated.
You can choose which decisions you’d like the guardian to make, and you can direct the guardian how to carry out their functions.
Anything else to consider?
As mentioned earlier, an enduring guardianship agreement is neither a general power of attorney nor an enduring power of attorney. (Although in some states, an enduring power of attorney and enduring guardianship agreement are in the same document.)
However, having been sensible and forward thinking enough to appoint an enduring guardian, it is probably also sensible to think about appointing a power of attorney too. If you need the former, you’ll probably also be in a position to need the latter.
A general power of attorney only operates when the person giving it has capacity to revoke it. Why might you need such a thing? Well, if you go on holiday for a few months for instance, you can give someone a general power of attorney to make decisions and sign on your behalf during this time.
You can revoke such an agreement at any time, and if you lose your capacity to communicate (think about the above examples, and also say if you develop a dementia), then a general power of attorney ceases legally.
On the other hand, an enduring power of attorney comes into effect when you lose your capacity to communicate. It ceases when you die, and your legal Will takes over.
Once again, any power of attorney should be someone you trust.
In all of these considerations about estate planning bear in mind the aim is to make life easier for the loved ones you leave behind after your demise. If you have any questions about guardianship — or any of the other instruments mentioned above — please contact Summerhill Financial Services on 03 8621 0600 or mail@summerhillfs.com.au
Sources: Department of the Attorney General, Western Australia; LawLink NSW; and “Guardians can often be no less than heaven sent”, by Jill Margo, The Australian Financial Review, May 2009.