enduring guardian

What is an Advance Care Directive?

Many people, when thinking of their estate planning arrangements, will have at least thought about:

  • making a Will to direct how their assets in their estate will be distributed on their death
  • putting in place an Enduring Power of Attorney to manage their financial affairs they become unable to do so
  • appointing an Enduring Guardian to make decisions about their healthcare, accommodation and lifestyle if they cannot

but often, they will never have heard of an Advance Care Directive or a ‘Living Will’.

So what is an Advance Care Directive? An Advance Care Directive is a way inform others of your specific wishes in relation to your future care and treatment and identifying steps that you do and/or do not want taken if you become medically incapacitated and cannot state these wishes for yourself.

It is best to put these wishes down in a document and have it witnessed or signed, but it can be verbal.

An Appointment of Enduring Guardians and an Advance Care Directive are complementary powers and there is often no need for an Advance Care Directive at all if the functions of the Enduring Guardian are stated broadly or if there are specific directions given to the enduring guardian in the document appointing them (an Advance Care Directive can be part of the Appointment of Enduring Guardians).

The appointed guardian (and any medical practitioners) must act in accordance with any known Advance Care Directive unless it is clearly revoked or replaced by the directions in Appointment of Enduring Guardians.

People’s views on matters like life support, assisted ventilation, resuscitation, artificial nutrition/hydration and palliative care can, and often do, change over time so documents like Advance Care Directives should be updated when necessary so as to reflect a person’s most current wishes regarding their medical treatment.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to Advance Care Directives, estate planning, aged care issues, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

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Coronavirus: Remote witnessing of legal documents

On 22 April 2020, the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) came into effect.

The effect of the Regulation is that the signing of legal documents in New South Wales such as Wills, Powers of Attorney, Deeds, Agreements, Appointments of Enduring Guardians, Affidavits and Statutory Declarations) can be witnessed by audio visual link, rather than having to be physically present, as is normally the case – that is the law (during the COVID-19 pandemic) now allows the remote witnessing of legal documents.

Some documents have other additional requirements, like Wills which require 2 witnesses, not just one, as is provided for in s.6(1)(c) of the Succession Act 2006 (NSW).

Audio visual link includes Zoom, WhatsApp, Skype, HouseParty, FaceTime and the like.

The witness must sign the document either:

  1. by signing a counterpart of the document as soon as practicable after witnessing the signing of the document; or
  2. if the signatory scans and sends a copy of the signed document electronically, the witness may countersign the document as soon as practicable after witnessing the signing of the document.

The witness must endorse the document, or the copy of the document, with a statement that specifies the method used to witness the signing and that the document was witnessed in accordance with the Electronic Transactions Regulation 2017.

All copies of the document should be stored together so they can be read as the one document.

The Regulations do not change what documents may or may not be executed electronically in NSW – only how documents may be witnessed and attested.  The Regulations also do not affect the laws or requirements of any other jurisdiction, including the Commonwealth (such as company execution of documents under the Corporations Act 2001 (Cth).

Under the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW), the Regulation will operate for a maximum period of 6 months from 22 April 2020.

Similar regulations are in place in the other States and Territories, such as Queensland’s Justice Legislation (COVID-19 Emergency Response – Wills and Enduring Documents) Regulation 2020 (Qld).

FURTHER INFORMATION

For further information in relation to legal issues arising from Coronavirus, if you had previously held off arranging documents such as for your estate planning due to not wanting to attend our office physically due to social distancing concerns or if you need to discuss how to best to arrange signing of documents under the Regulation, please contact us on (02) 9521 2455 or email help@mckilloplegal.com.au.

This information is general only and is not a substitute for proper legal advice.

Please contact McKillop Legal to discuss your legal concerns or objectives.

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