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What If Something Happens to Me? – Part 2

Posted on 8th August 2016
Catherine Henry Lawyers
Catherine Henry Lawyers

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What if? Part 2

This is the second part of our blog which deals with making decisions for later life. Part one dealt with financial decisions which you can read here.

Health and lifestyle decisions

There are several things you can do to plan for a possible time when you are unable to make decisions about health treatment.

Tell people your views

If you become unable to consent to your own medical treatment, the doctor concerned must get the consent of your ‘person responsible’.

Your ‘person responsible’ will normally be your husband, wife, de facto or same sex partner where there is a close and continuing relationship; if you have no partner, it is your unpaid carer.  If no one exists, it is a close personal friend or relative so long as there is a close personal relationship.

So, if you have views about future health treatment and lifestyle matters, make sure you tell your close family and friends how you feel.  This could include treatment you do and do not want, and in what circumstances.  You may wish to tell your doctor as well.

Health practitioners are obliged to give your ‘person responsible’ the same information they would have given you if you had been able to give consent yourself. This includes the proposed treatment and its likely effects, the alternatives, the risks and the reasons for the particular treatment.

Appoint an enduring guardian to make health decisions for you

If you would like to make sure that the doctors consult a particular person you can do this by appointing him or her to be your enduring guardian.  Your enduring guardian then becomes your ‘person responsible’ and has the authority to make personal, lifestyle and medical treatment decisions on your behalf if you become incapable of doing this for yourself.

You can either tell your enduring guardian what you would want ahead of time, or include directions in the document of appointment, or leave the decisions up to your guardian.

The signing of the enduring guardianship document by you and the person(s) you are appointing must be witnessed by a lawyer or a Clerk of the Local Court.

An enduring guardian cannot make a will for you or manage your finances or override your objections, if any, to medical treatment.

Your ‘person responsible’ or guardian can only consent to treatment that will ‘promote and maintain your health and well-being’.

Put your wishes in writing (an Advance Health Care Directive)

Sometimes known as a ‘living will’, an advance health care directive is a written statement of your wishes about future medical treatment in the event that you lose your capacity to make these decisions.

There is no specific legislation covering advance health care directives in NSW (unless part of the document appointing an enduring guardian).  However, doctors are obliged to take an advance health care directive into account as an expression of a person’s wishes so long as it is reasonably up to date.

Of course, this assumes that the treating doctor knows you have written an advance health care directive and has a copy.  If you make an advance directive, it is a good idea to give a copy to your GP and to tell your family and close friends where it is.

Since your views may change over time or as your circumstances change, you should review and update your directive regularly.  That way any doctor will be sure that it truly represents your recent wishes.

In most states there is no official advance health care directive form to follow or complete. There are some model forms available that you can complete or use as a guide, or you can write your own.

It is a good idea to write it in consultation with a trusted health practitioner such as your doctor or community nurse as they may be able advise you of some of the possible decisions that might need to be made.

If you do nothing

As mentioned above, if you become unable to consent to your own medical treatment, the doctor concerned must get the consent of your ‘person responsible’.

If you do not have a ‘person responsible’ an application may have to be made to the Guardianship Tribunal for consent to health treatment or for a guardian to be appointed to make decisions for you.

Deciding whether someone is able to make decisions

It is too late to make a will, an enduring power of attorney, appoint an enduring guardian or write an advance health care directive once you have lost your mental capacity.

In the early stages of dementia people may still be able to make decisions and sign documents.  If there’s doubt about your capacity to make decisions, an assessment should be made by a doctor or psychologist.

Storing your Advance Care Directive

You should keep your document at home in a brightly coloured envelope, clearly marked “Medical Emergency Pack”.  Also put in that envelope copies of any recent medical reports, a one-page summary of your medical history, a list of your current medications, copies of your Medicare card, the name and contact number of your treating doctor and/or specialist, a copy of your Appointment of Enduring Guardian.  If it ever becomes necessary for an ambulance to take you to hospital, either the paramedics or a family member can deliver the Emergency Pack to the hospital.  This will shorten the time for the hospital to be informed about your history and make it easier for hospital doctors and nursing staff to obtain that information.  Your Guardian and a family member should also hold a copy of the Medical Emergency Pack.

You can read Part 1 here.

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