Luchetti & Co
24 Falcon Street
Crows Nest NSW 2065
02 9906 3888
02 9906 3878 (fax)
by a scheme approved
Itís a Living Thing
All you need to know about living
Itís a situation that everybody dreads.
Youíre 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 canít move, you canít speak - you
canít 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 ďliving willĒ, or as
theyíre officially called, ďadvance directivesĒ. 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
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: thatís why itís 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 canít be
someone responsible for your medical treatment (Lawyers just donít
trust doctors, do they?). And you canít instruct your guardian to do
something illegal - that includes euthanasia.
Itís about you, not your money: guardians and
This all sounds a bit like a power of attorney, if youíre
familiar with that sort of thing. Donít get confused with whatís
known as an ďenduring power of attorneyĒ. Because the latter also
have the authority to make decisions on your behalf when you become
incapacitated, theyíre also called ďenduring.Ē The difference is
related to the kind of decision each can make: attorneys can only
make financial decisions, while guardians make personal or medical
But what both guardians and attorneys have in common is that
their appointment needs to meet a number of legal procedural
requirements. Thatís 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. Thatís not quite as bad as it sounds, as both of you need not
sign at the same time.
This doesnít necessarily mean you or your guardian have signed
their lives away. Should you decide that you donít 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 theyíre no longer up to finding
someone else, youíll have to get the permission of the Guardianship
Come to us for much less fuss
Itís 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 donít agree with your doctors? Understandably, itís not
a prospect you want to dwell on. But being prepared is worth it: it
means peace of mind for all parties concerned.