An enduring guardian is an individual who is given authority to make decisions on your health and lifestyle decisions, on behalf of yourself, in the instance where you are no longer able to make those decisions. This is distinct from an enduring power of attorney who, in the same instance, manages your financial and legal affairs on your behalf when you lose the capacity to make those decisions yourself. Rather, an enduring guardian is responsible for the everyday aspects of your live such as where you live, what services are provided to you and what medical treatment you shall receive.
Enduring guardianship comes into effect when an individual loses capacity and will only be effective during this period of incapacity. Enduring guardianship has been available in New South Wales since 1998 and is particularly important for people who have specific views about the medical treatment they want to receive, where they want to live and other matters that they communicate to their enduring guardian in order to make sure that they are fulfilled.
How can I appoint an enduring guardian?
You must be over the age of 18 to appoint another individual as your enduring guardian and have the capacity required to make such an appointment. That is, you must have an understanding as to the nature and effect of the appointment.
Whilst you can legally appoint anyone that agrees to be your enduring guardian, it is advised that you appoint someone that you trust and someone that will listen and adhere to your views about what you want to happen should you lose capacity to decide for yourself.
You must have your enduring guardianship appointment witness by a prescribed witness – a lawyer, barrister or clerk of a Local Court.
Can I appoint more than one person as my enduring guardian?
You may appoint more than one person as your enduring guardian, however you must decide whether to appoint them jointly or separately.
Jointly means that all enduring guardians have the same functions and must agree and act together. That is, decisions cannot be made about your health and lifestyle unless all enduring guardians agree.
Separately means that the enduring guardians have different functions or areas of decision making and therefore it does not require that all enduring guardians agree on every aspect of decision making.
When does the appointment take effect?
The appointment takes effect when a person is ‘in need of a guardian’. A person can develop a decision making disability from a stroke, a brain injury, dementia or any other condition that affects mental capacity. It is where the person is incapable of making health or personal decisions.
Where there is doubt as to whether an individual lacks mental capacity, the enduring guardian should seek a medical certificate about the individual’s capacity to make health or personal decisions. The enduring guardian can also apply to the Guardianship Tribunal for an order declare that the appointment has taken affect.
What exactly does my enduring guardian have the decision-making powers for?
You can determine what functions and areas of decision making your enduring guardian will have. You can limit or exclude the authority given in relation to the functions in the appointment and can add any other function that you wish.
If there are no limitations as to what your enduring guardian’s functions are then they have the decision-making power to:
- Decide where the appointer is to live
- Decide the health care that the appointer is to receive
- Decide the other kinds of personal services that the appointer is to receive
- Give consent under Part 5 of the Guardianship Act to carry out medical or dental treatment to the appointor.
You can also make lawful directions to your enduring guardian about how they are to exercise their functions. They must follow these directions unless the Guardianship Tribunal directs otherwise.
You can revoke or cancel the appointment at any time as long as you have the legal capacity to do so. That is, that you understand the nature and effect of the document used when revoking the appointment of the enduring guardianship.
It must be in writing and in the form prescribed by the Regulations.
Appointing an enduring guardian gives you a sense of security in knowing that if anything happens and you are no longer able to make decisions for yourself, an individual that you trust will make the medical, health and lifestyle decisions that you wish on your behalf.
If you lose capacity and have not appointed an enduring guardian, a guardian will be appointed for you. If no one is suitable, then the Guardianship Tribunal may appoint an independent Public official to be your guardian who will have no prior knowledge to your wishes on how you wish to be treated.
If you wish to appoint an enduring guardian, contact our office at email@example.com or (02) 8014 5885.