Legal Hypothetical: Appointment of Enduring Guardians under attack

BETTY appoints two of her daughters as her enduring guardians.

The documentation is executed by Betty in the presence of a solicitor who witnesses her signature and explains the effect of the document to Betty.

Her daughters later sign acceptances of their roles as guardians and again their signatures are witnessed by a solicitor.

The effect of the guardianship is that if Betty becomes unable to make medical and lifestyle decisions for herself, her daughters will be empowered to do so on her behalf.

Betty’s daughters are appointed “jointly and severally” which allows either one of them to make decisions as guardian.

Betty is admitted to hospital ten years later, with a diagnosis of dementia with cognitive impairment and suffering from respiratory failure.

The Consultant Physician at the hospital makes an urgent application to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT), seeking the appointment of the Public Guardian to make medical decisions on Betty’s behalf. NCAT has the power to make orders which override Betty’s Appointment of Enduring Guardian.

The Tribunal hears that in relation to her medical treatment, based on their religious beliefs, Betty’s daughters wanted “everything done” including admission to intensive care and cardiopulmonary resuscitation and intubation, despite medical advice that it would “certainly have a bad outcome in the unlikely event that it was successful”.

The Tribunal also hears that Betty’s daughters refused to agree to the administration of morphine for pain relief and that they rejected attempts to discuss palliative care.

The Tribunal states that whilst the “starting point” is the documented Appointment of Enduring Guardian which was duly executed by Betty, when she had the capacity to do so, the Tribunal was not satisfied that the guardians had given close consideration or objectively considered the proposed treatment plans.

Although the Tribunal did “not doubt the love and concern” that Betty’s daughters have for her, the Tribunal suspended the operation of her enduring guardian appointment and appointed the Public Guardian who can take a “transparent and dispassionate approach”.

This fictional column is not legal advice.

By Manny WOOD