Advance Care Directives Act: Is my Enduring Power of Guardianship still valid?

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The short answer: Your Enduring Power of Guardianship may not be valid if it was made leading up to 1 July 2014.

Read on to understand why.

It’s often difficult to contemplate a situation where we lose mental capacity. It involves confronting that fundamental truth that we as people like to avoid: losing our autonomy. Fortunately, there are legal safeguards that people can put in place prior to this difficult time which will allow them to choose who will make important medical decisions for them.

Prior to 1 July 2014 a person could make an Anticipatory Direction, Medical Power of Attorney or Enduring Power of Guardianship to record their wishes about medical decisions. Then Parliament enacted the Advance Care Directives Act 2013 (SA). Now if someone wishes to record their directions as to health care and medical decisions they make an Advanced Care Directive and appoint Substitute Decision Makers. You are no longer able to make Enduring Powers of Guardianship or similar.

The Advance Care Directive must be in the pro-forma that the SA Government has created. It also must be properly signed and witnessed, must not be given by a person under coercion, and a person must have read and understood specific guidelines on what the Advance Care Directive is and its purpose before they sign.

But what if you had an Enduring Power of Guardianship in force prior to 1 July 2014? If your Enduring Power of Guardianship was fully signed by everyone prior to 1 July 2014 it becomes an “Advance Care Directive” and is treated in the same way as if it were given under the new Act. If your Enduring Power of Guardianship was signed by you, but not accepted by all your appointed Guardians, or not accepted in accordance with the requirements of section 25 of the Guardianship and Administration Act 1993 (SA) then it is not valid. This means that you must make an Advanced Care Directive to have the protection in place.

We are happy to advise you on whether your Enduring Power of Guardianship is valid. If you would like to make an appointment with us please call 8632 2777.

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