Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 23 June 2018.
Agnes has two children, Robert and John. Agnes decides to appoint Robert as her sole enduring guardian.
The appointment of enduring guardian authorizes Robert to make decisions for Agnes if she loses the capacity to make decisions for herself.
These decisions include deciding where Agnes lives, deciding what healthcare she receives, deciding what other kinds of personal services she receives and extends to consenting to medical and dental treatment on Agnes’ behalf.
An appointment of enduring guardian is different to a power of attorney, which deals with financial management.
Years later, Agnes’ mental and physical condition deteriorates to the point that she needs a high level of care but she refuses to be admitted into a nursing home.
Robert finds the process incredibly frustrating and talks to his solicitor about resigning as Agnes’ guardian.
Robert is advised that he cannot resign unless Agnes is not in need of a guardian.
Agnes agrees to be assessed by a geriatrician and is found to have lost capacity.
Robert’s solicitor advises him that in the circumstances, he is not able to resign unless he obtains approval from the Guardianship Division of the New South Wales Consumer and Administrative Tribunal (NCAT).
However, Robert is also advised that because Agnes has lost capacity, he can now act as enduring guardian and make decisions for her, which can include admitting her into a nursing home.
Robert finds an appropriate nursing home not far from where he is living and fortunately Agnes settles-in and enjoys being looked after properly.
Robert, having also been appointed as Agnes’ attorney pursuant to an enduring power of attorney, is also able to facilitate the sale of Agnes’ home and the payment of the nursing home bond.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
