Advance Care Directive
An advance care planning document written by a person with capacity that is authorised by common law or by legislation. Laws vary across Australia, and in different Australian States and Territories, an advance care directive can either:
- record an person’s values, life goals and preferred outcomes, or directions about medical treatment and care (an instructional directive); or
- formally appoint a substitute decision maker (Enduring Guardian); or
- do both these things
In NSW, advance care directives are recognised at common law and the NSW Guardianship Act 1987 provides substitute decision makers through the ‘Person Responsible’ hierarchy and allows appointed Enduring Guardians to consent to end of life decisions.
Advance Care Planning
The process of developing future plans for a person’s health and personal care that respect their values, beliefs and preferences. Advance care planning involves discussion with health professionals, family and friends, and could include a written advance care directive.
Beneficiaries are those people or organisations such as charities or associations named in a Will who will receive benefit under a person’s Will. Beneficiaries may be legatees of gifts of money, personal or real property, life tenants or remainder beneficiaries of real estate, annuitants, or be entitled as residuary beneficiaries to the residue of the estate.
- Understand the facts and choices involved
- Weigh up the consequences
- Communicate the decision
There is no specific legal definition or test of capacity in NSW. For planning ahead, different tests of capacity are required when making a Will, appointing an enduring guardian or giving a power of attorney. For more information on capacity, refer to the Capacity Toolkit.
Conditions and Limitations (Power of Attorney)
The power of attorney forms allow you to specify any conditions and limitations you wish to make to your attorney's dealing with your property. Your attorney will be able to do anything with your property which you can do, except for things you write down as conditions or limitations.
Examples of conditions and limitations:
- limiting your attorney's dealings to certain property only ie. managing your share portfolio but not your real estate
- setting conditions such as only managing your property while you are travelling overseas
However specifying conditions and limitation can be a problem if you become incapable. Your attorney may not be able to manage your property to look after your best interests and be forced to apply to the Guardianship Tribunal for the appointment of a financial manager. The Guardianship Tribunal may appoint a person or organisation other than your choice of attorney.
- the nature and effects of the proposed treatment
- the risks associated with the proposed treatment
- alternative treatments (their nature, effects and risks) or the impact of not having the treatment.
If a person cannot understand these aspects or is unable to communicate their consent, the treating practitioner must seek substitute consent from the person responsible. The Guardianship Act describes who can be person responsible and defines types of medical treatment.
Elder abuse includes behaviour that causes physical, psychological, financial or social harm to an older person. The abuse can occur within any relationship where the abuser is in a position of trust or is responsible for providing support to the older person.
An executor is the person appointed by the testator (the person making the Will) to carry out the terms of the Will. The duties of an executor include: obtaining a grant of probate; collecting in the estate assets; paying debts; and distributing the assets to the beneficiaries named in the Will.
Financial Management Order
An order made by the Guardianship Tribunal, Supreme Court or Mental Health Review Tribunal appointing a financial manager for a person with a disability. If there is no other suitable person available to act as financial manager, the NSW Trustee and Guardian can be appointed.
General or Enduring Power of Attorney
A general power of attorney will end when you lose mental capacity – it is useful for a short term appointment e.g. if you go overseas and need someone to look after your property in your absence or sign documents in your absence.
An enduring power of attorney will not end when you become incapable. In fact, the main purpose of the enduring power of attorney is that it be put into operation or continue in operation if you become incapable of managing your property. An enduring power of attorney is made as a safeguard - just in case you suffer future mental incapacity due to an unforeseen accident or dementia. Because more people are living longer and have age related illnesses the enduring power of attorney is very popular.
An order made by the Guardianship Tribunal appointing a guardian or guardians to make decisions in specific health and welfare areas for a person with a disability. Guardianship orders are time-limited and must be reviewed by the Guardianship Tribunal when the time limit is reached.
The Guardianship Tribunal is a legal tribunal that can appoint guardians and financial managers, and consent to medical and dental treatment on behalf of people who lack capacity. The Guardianship Tribunal can also review Enduring Guardianship appointments and Powers of Attorney. For more information about the Tribunal go to www.gt.nsw.gov.au.
- You can appoint more than one enduring guardian. You can appoint your enduring guardians to act:
- jointly - your enduring guardians must make decisions together so they must agree on all decisions
- severally - your enduring guardians can make decisions independently of each other
- jointly and severally - your enduring guardians can make their decisions together or separately
If one or more of your enduring guardians die, resign or become incapacitated, you can choose to have the remaining joint enduring guardian(s) continue. The Appointment of Enduring Guardianship form provides this option in Section 1c. If you do not choose this option, the enduring guardianship appointment will end automatically when one of the joint enduring guardians dies, resigns or becomes incapacitated.
You can also appoint an alternative enduring guardian who can act only if the original enduring guardian(s) dies, resigns or becomes incapacitated.
If you wish to appoint more than one enduring guardian think carefully about who these people should be. Ask yourself: will they get on together and work together for your interests above their own?
- jointly - your attorneys must make decisions together so they must agree on all decisions
- severally - your attorneys make decisions independently of each other
- jointly and severally - your attorneys can make their decisions together or separately
If you wish to appoint more than one attorney think carefully about who these people should be. Ask yourself: will they get on together and work together for your interests above their own?
- Section 46 of the Powers of Attorney Act 2003 (NSW) provides that if you appoint attorneys:
- jointly- the power of attorney is terminated if one or more of the attorneys dies or is unable or unwilling to perform their duties and
- severally, or jointly and severally- if one or more dies or is unable or unwilling to perform their duties this does not terminate the power of attorney in relation to the other attorneys.
- Guardianship Act 1987
- Power of Attorney Act 2003
- NSW Trustee and Guardian Act 2009
- Succession Act 2006
A person who is legally able to make medical and dental decisions on behalf of another person who lacks the capacity to give their own consent to treatment. The Guardianship Act 1987 defines the hierarchy of person responsible (in descending order):
(a) the person’s guardian, if any, but only if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to the carrying out of medical or dental treatment on the person,
(b) the spouse of the person, if any, if:
(i) the relationship between the person and the spouse is close and continuing, and
(ii) the spouse is not a person under guardianship,
(c) a person who has the care of the person,
(d) a close friend or relative of the person
This has a technical legal meaning. It means all forms of property other than real property; that is, all forms of property other than land and interests in land (excluding leaseholds which are classified as personal property). Examples of personal property include: money, shares, bank accounts, cars, boats, domestic pets, furniture, household items, personal effects including clothing, jewellery etc
Substitute decision maker
A substitute decision maker is a person who is appointed or identified by law to make decisions for an individual whose decision-making capacity is impaired. A substitute decision maker may be appointed by the individual (for example appointing an enduring guardian or making a power of attorney), appointed for the individual (for example a Guardian appointed by the NSW Guardianship Tribunal), or identified as a substitute decision-maker for medical and dental treatment by the NSW Guardianship Act ‘Person Responsible’ hierarchy.
- the nature and effect of a Will;
- the nature and extent of your assets;
- the people who might have a claim on your assets; and
- in relation to point 3 that there is no disorder of mind that would influence a person to omit such people from one’s Will.
It is usual for a testator to appoint both an executor and trustee in their Will. Often the executor and trustee is the same person, although a testator may appoint different people to take on these roles. A trustee’s role is to administer any trusts. For example the Will may set up a testamentary trust and it is the role of the trustee to look after this trust. An example of a trust established by Will is where a testator provides that a gift is not to be given immediately to the beneficiary but held for their benefit for a specified period of years. The trustee’s role is to manage the property for the benefit of the beneficiary.
A Will is a legal document in which a person appoints an executor and trustee and expresses their wish as to what will happen to their property when they die. A Will only comes into effect upon the death of the person who made it. Anyone over the age of 18 with testamentary capacity can make a Will.