It’s a Living Thing

All you need to know about living wills

It’s a situation that everybody dreads. You’re lying motionless and stricken in a hospital bed. Perhaps important decisions need to be made about your treatment, your property or your life. But you can’t move, you can’t speak - you can’t make them. Does that mean any wishes you might have had while you were conscious could be ignored or overridden? Is there any legal way of preparing for a situation like this? Well, yes, there is; but it has to done properly if you want it to be binding.

Living wills: are they dead letters?

You might have heard of something called a “living will”, or as they’re officially called, “advance directives”. As the name implies, this is a document in which you explain what you want to be done should you become incapacitated.

However, in New South Wales, living wills are not legally binding. There is no absolute legal requirement that your doctors or your relatives must carry them out. Having said that, a court will regard them as persuasive under the right circumstances. This means that if they are relatively current, clearly expressed, and appear to concur with what you have said while you were still of sound mind, they will be preferred to any other opinion unless there are very strong arguments to the contrary.

For this reason, a living will may be of some use if you suspect your intentions might not be heeded if you become incapacitated. As well as keeping the document up-to-date, you should provide copies to your doctors, family and maybe a responsible friend.

Enduring guardians: ensuring your wishes

While a living will is certainly better than nothing, appointing an enduring guardian is better still. Living wills have become less common since this became possible under the Guardianship Act 1997. This is because enduring guardians are empowered to make legally binding decisions.

An enduring guardian can make personal, health or lifestyle decisions on your behalf, when you are no longer physically or mentally capable of making them. You can direct your guardian to follow your wishes, or impose conditions or limitations on what they can do. You can even create a number of guardians to make different decisions. All these things need to be clear, though, if the law is to recognise them: that’s why it’s well worthwhile getting us to draft them for you.

Of course, there are also some legal restrictions - both you and your guardian have to be over eighteen, and your guardian can’t be someone responsible for your medical treatment (Lawyers just don’t trust doctors, do they?). And you can’t instruct your guardian to do something illegal - that includes euthanasia.

It’s about you, not your money: guardians and attorneys

This all sounds a bit like a power of attorney, if you’re familiar with that sort of thing. Don’t get confused with what’s known as an “enduring power of attorney”. Because the latter also have the authority to make decisions on your behalf when you become incapacitated, they’re also called “enduring.” The difference is related to the kind of decision each can make: attorneys can only make financial decisions, while guardians make personal or medical decisions.

The formalities

But what both guardians and attorneys have in common is that their appointment needs to meet a number of legal procedural requirements. That’s where we come in. The form (yes, it needs to be a particular form, in writing), must be signed by both you and your guardian, witnessed by a solicitor, barrister or clerk of the Local Court. That’s not quite as bad as it sounds, as both of you need not sign at the same time.

This doesn’t necessarily mean you or your guardian have signed their lives away. Should you decide that you don’t want your appointee to be your guardian, you can revoke the appointment in writing, signed and witnessed by us or a Local Court clerk (make sure the now ex-guardian gets a copy!). As for guardians, you can also resign by giving written notice - as long as the appointor still has capacity that is. If they’re no longer up to finding someone else, you’ll have to get the permission of the Guardianship Tribunal.

Come to us for much less fuss

It’s not that much hassle to pop round and get us to set up an enduring guardianship. Later, if (heaven forbid!) you should end up lying comatose in that hospital bed, it will be too late. What if no-one knows what you would have wanted? What if your family disagree, or don’t agree with your doctors? Understandably, it’s not a prospect you want to dwell on. But being prepared is worth it: it means peace of mind for all parties concerned.

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