What if I become incapacitated and I haven’t appointed an Enduring Guardian?

The degree of difficulty will depend on the medical people you are dealing with and the persons circumstances. In theory there should not be a problem in most cases.

The Guardianship Act says that when a person cannot make a medical decision for themselves then the decision can be made by the ‘person responsible’ (except in cases of sterilisation or unusual medical matters). The person responsible is defined in a pecking order as:

• the guardian (appointed by an Enduring Guardianship appointment or Guardianship Tribunal) (or if none then...)
• the person’s spouse (must have a close and continuing relationshp and not be under Guardianship order themself) (or if none then....)
• the person’s carer (must not be paid for such care except by way of a carer’s pension). If the person goes into a nursing home or similar, the person who was the carer before going in continues and the nursing home or any staff do not take over (if none then...)
• a close friend or relative of the person.

The issues that arise appear to be:

• spouse - who is the spouse when a person has a legal spouse and a de-facto spouse;
• what is the status of children when there is a de-facto spouse or a separation from the legal spouse;
• when a person is being cared for by only one of their children or by a non-child, that person can override the wishes of the (non-carer) children - will that cause conflict?
• what if there are several ‘close friend(s) or relative(s) and they have different views on the treatment regime?
• what if the doctor or nursing home need a signed consent - who will they consider has the capacity to give that consent - will they want to get involved in a dispute as to who has the authority to sign and make decisions such as turning off life support?