What is the difference between a Guardian and a Power of Attorney?
A Guardian is a person empowered by the Guardianship Board to make decisions about care and treatment for a person considered to be in need of a guardian. Alternatively a person may have appointed an enduring guardian while they were still capable of doing so (see below) A guardian may also make other decisions for an incapacitated person.
Power of Attorney achieves the same purpose in relation to financial and property matters. However, a power of attorney may not authorise the person to make treatment and care decisions.
Who is a person in need of a Guardian?
A person in need of a guardian is any one over 16 years of age incapable of making their own decisions because of a mental or physical disability impacting on their capacity. Capacity refers to a person’s ability to make decisions. Legally, this involves understanding, interpreting, weighing up and deciding a course of action on the information provided. A person may be sick or ill, either mentally or physically, but still have the requisite capacity to decide on treatment and care options. The law supports a persons own decision making capacity as much as possible and the right of self determination is a prime consideration for the operation of the Guardianship Act. Self determination is very important and it is a very big step to award this right to someone else.
If a person has not appointed an enduring guardian and becomes incapable making decisions themselves, Guardianship can be bestowed on a person over 18 years old following application to act for the person in need of a guardian. This is a formal process requiring application to the Guardianship Board. It can be made by anyone who is genuinely concerned with the person’s welfare. The application must specify the grounds for the application or why the person in need of a guardian is considered to be in need.
Without an appointed guardian treatment and care decisions can still be made by a ‘person responsible’ if the person is incapable of making their own decisions. ‘Persons responsible’ are set out in the Guardianship Act and therefore have legal authority. These persons are ranked in a hierarchy which follows family lines. Recent changes enable same sex partners to be considered with other family members in the hierarchy.
Guardianship orders appointing a guardian can be appealed and/ or reviewed. The matters a guardian has the ability to decide for the person requiring the guardian can also be limited and the timeframe of the guardianship order can also be limited.
Adults may appoint an Enduring Guardian. An enduring guardian is able to act for the person in the future if they become incapacitated. The person can appoint an enduring guardian ahead of time so that they are able to instruct the person about treatment and care options to pursue in case they become incapacitated. This person then becomes their substitute decision maker. The enduring guardian can make decisions and give consent to medical and dental treatments, about the persons living arrangements and other important decisions.
Advance Care Directives
Advance directives or living wills, as they are also called, are directives in regard to the treatment and care people wish to receive after they have become incapacitated. These directives are not legally binding but they are persuasive in a court or a tribunal which may be being asked to determine the validity of a proposed treatment or the withholding of care or treatment for a patient. If the person has specified ahead of time what their wishes are under particular circumstances then the law will respect those wishes.
Once again the right of a person to determine what is done to them is upheld strongly under the law. The right of self determination is usually well respected by health care practitioners. It is increasingly common place for these issues to be raised with people prior to the initiation of treatment or on admission to hospital. People are encouraged more so than ever to express their wishes in regard to ongoing treatments while they are still able in case they become incapacitated and the treatment decisions may then be made by someone else.