Appointment of Enduring Guardian
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If you can no longer make decisions about your health and lifestyle, who will:
- look after you?
- decide what health care you receive?
- decide if you need an operation?
- decide if you need to move to alternate accommodation?
If you lose your capacity to make lifestyle and health decisions due to an accident or the onset of dementia, an enduring guardian can make those decisions on your behalf.
What is an Enduring Guardian?
An enduring guardian is a family member or someone else interested in your welfare who you trust to act in your interests to make decisions on your behalf about health and lifestyle decisions if you lose the capacity to make such decisions.
When does it start to operate?
An Enduring Guardianship starts to operate only if you can no longer make your own health and lifestyle decisions.
Why appoint an Enduring Guardian?
Appointing an enduring guardian reduces the possibility that such decisions will be made by Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT).
Family members may disagree about what is in your best interests. Having an Enduring Guardianship in place helps avoid a situation where family members cannot agree and have to ask NCAT to make a Guardianship Order. The guardian NCAT appoints may not be the person you would have chosen.
What is a "person responsible"?
The Guardianship Act (the Act) sets out a hierarchy of people who can consent to a doctor or dentist treating someone who lacks capacity. They are (in descending order):
- your guardian;
- your spouse;
- your carer; or
- a close friend or relative.
What powers can I give my enduring guardian?
An enduring guardian’s powers are to:
- decide where you live;
- decide what health care you receive;
- decide what other personal services you receive; and
- consent to the carrying out of certain medical or dental treatment on you.
You choose which functions your guardian may exercise.
What can my enduring guardian not consent to?
Your guardian cannot make decisions about your financial affairs (this requires a power of attorney).
Some treatments require NCAT’s consent.
Your guardian cannot on your behalf make a will, vote, or consent to marriage.
Can I cancel the appointment of enduring guardian?
Yes, if it is in writing using a “revocation of appointment of guardian” form signed in the presence of an “eligible witness” (lawyers, Local Court Registrars, or NSW Trustee and Guardian approved employees, but not Justices of the Peace).
To revoke the appointment you must:
- have the legal capacity at that time; and
- give your guardian written notice.
Marrying someone (other than your guardian) automatically cancels the appointment.
What's the difference between an enduring guardian an enduring attorney?
A power of attorney is a legal document in which you appoint a person to manage your financial affairs on your behalf. An enduring power of attorney continues to operate if you lose capacity.
Appointing an enduring guardian does not prevent someone genuinely concerned for your welfare from applying to NCAT for a guardianship or financial management order.
If you lose capacity without having made an enduring power of attorney, an application may have to be made to NCAT to appoint an attorney. If a financial management order is made, your financial affairs will be managed by the NSW Trustee and Guardian. A financial management order over-rides the attorney’s power over parts of your financial affairs covered by the order.
Although your attorney and your guardian deal with different aspects of your welfare, they are intimately linked because decisions made by one affects the other. You should consider the compatibility of your proposed attorney and guardian before appointing them.
Where to now?
Contact us to prepare an appointment of enduring guardian tailored to your needs.
Advance Care Directive
We include an optional Advance Care Directive in your Appointment of Enduring Guardian. It constitutes directions to your guardian on what health care is to be given to maintain your comfort and dignity. It instructs your guardian about the provision of life support, assisted ventilation, artificial hydration and nutrition, and cardiopulmonary resuscitation.
If you would prefer, an Advance Care Directive tailored to your specific needs (e.g. specifying which medical professional is to treat you) can be drafted as a separate document.
