AEG

Appointment of Enduring Guardian

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If you can no longer make decisions about your health and lifestyle, do you know who will:

    • look after you?
    • decide what health care you receive?
    • decide if you are to have an operation?
    • decide where you live?

If an accident or the onset of dementia robs you of your capacity to make lifestyle and health decisions, 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  (e.g. medical or dental treatment) if you lose the capacity to make such decisions.  

When does an Enduring Guardianship Start Operating?

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 including:

  • whether to deplete their potential inheritance to enhance your health or comfort; or
  • medical treatment you should receive. Some may favor treatment which adversely impacts on your quality of life whilst others may focus on enhancement of your quality of life.

Having an Enduring Guardianship in place helps avoid a situation where family members who cannot agree 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):

  1. your guardian;
  2. your spouse;
  3. your carer; or
  4. a close friend or relative.

What powers can I give my enduring guardian?

A 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 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” (including lawyers, Local Court Registrars, and 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.

How is an appointment of enduring guardian different from an enduring power of 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.

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 suspends the attorney’s power over that part of your financial affairs covered by the order.

Appointing an enduring guardian does not prevent someone who is genuinely concerned for your welfare from applying to NCAT for a guardianship or financial management 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. It is important to consider the compatibility of your proposed attorney and guardian before appointing them.

What now?

Contact us to advise you about and prepare an appointment of enduring guardian to suit your needs. Advice may address:-

  • the most appropriate person to appoint;
  • whether to appoint:
    • more than one guardian and if so jointly, severally, or jointly and severally, and if they disagree, who should have the final say; or
    • a principal guardian and a substitute guardian.

You and your guardian sign the appointment in the presence of an eligible witness who signs a certificate stating that they have explained the appointment to you and your guardian.

Advance Care Directive

An optional Advance Care Directive can be included in your Appointment of Enduring Guardian (no additional cost). It includes directions to your guardian on what health care is to be given to maintain your comfort and dignity. You can instruct your guardian about the provision of life support, assisted ventilation, artificial hydration and nutrition and cardiopulmonary resuscitation. You can also specify which medical professional is to treat you and where you are to live.

If you would prefer an Advance Care Directive tailored to your specific needs we can draft one as a separate document at a reasonable cost.