Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 21 October 2017.

David and Robert have been in a same-sex relationship for many years.

They own their home jointly and operate joint bank accounts. They have no children.

They have not registered their relationship with Births, Deaths & Marriages.

David has suffered a number of health problems recently and Robert is concerned, that if David’s health deteriorates to the point that he lacks the capacity to make his own medical decisions, he may not be recognised as David’s next-of-kin.

David and Robert seek legal advice. They are advised that the concept of a “next of kin” generally relates to the “rules of intestacy”. Under the rules of intestacy, Robert would be entitled to the whole of David’s estate, given that they have been in a relationship for many years.

Pursuant to the rules of intestacy, Robert is therefore David’s next-of-kin.

They are advised however, that in circumstances where there is no documentary proof, such as a Marriage Certificate, it may be difficult to prove that a next-of-kin relationship exists, to the satisfaction of a medical practitioner.

They are also reminded that in some circumstances, medical decisions need to be made relatively quickly.

The solicitor advises David and Robert to execute Appointments of Enduring Guardian. These documents allow them to formally appoint each other as “Guardians”, who have the legal authority to make medical decisions on each other’s behalf.

They are further advised that there is no process for “registering” the documentation and that it is therefore important that the original document is safely stored and certified copies released when required.

David and Robert are also advised that an Appointment of Enduring Guardian can only be used for health and lifestyle related decisions and that in New South Wales, financial decisions can only be made pursuant to a separate Power of Attorney.

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.