Appointment of Enduring Guardian

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 takes away your capacity to make lifestyle decisions, family and friends can usually make such decisions for you. If you lose the capacity to make these decisions and need to appoint someone to make decisions on your behalf, lifestyle and health decisions can be managed by an enduring guardian

What is an Enduring Guardian?

An enduring guardian is someone you trust who acts in your interests about health and lifestyle decisions on your behalf (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 should I 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.

Conflict may arise where family members’ views differ as to

  • whether to deplete their potential inheritance to enhance your health or comfort; or
  • what medical treatment you should receive. Those in favor of starting or continuing treatment which impacts on your quality of life may disagree with those focusing on measures to improve your quality of life.

What if there are Disputes concerning Lifestyle Decisions?

If family members (or another person interested in your welfare) can not agree they may have to ask NCAT to make a guardianship order. Having an Enduring Guardianship in place helps avoid this outcome.

If NCAT decides to make a guardianship order, the person NCAT appoints as your guardian may not be who you would have chosen.

What Medical and Dental Treatment can be authorised?

The Guardianship Act requires that doctors and dentists obtain consent from a “person responsible” before treating someone who is incapable of giving their consent.

The Act sets out a hierarchy of who is a “person responsible” which is, in descending order:

  • your guardian, if the appointment allows them to consent to the carrying out of medical or dental treatment on you;
  • your spouse, where the relationship is close and continuous;
  • your carer; or
  • a close friend or relative.

If you have not appointed an enduring guardian, the first “person responsible” in line is your spouse. If your spouse has passed away or is unwilling or unable to be appointed, next in line is your carer. If you do not have a carer, a relative or a close friend may be appointed.

What powers can I give my Enduring Guardian?

The Guardianship Act sets out a guardian’s powers, which are:

  • deciding where you live;
  • deciding what health care you receive;
  • deciding what other kinds of personal service you receive;
  • consenting to the carrying out of certain medical or dental treatment on you.

You choose which functions your guardian may exercise.

You may also wish to direct your guardian as to how they are to make decisions concerning you if you are:

  • in the terminal phase of an incurable or irreversible illness;
  • in a coma;
  • in a persistent vegetative state; or
  • unlikely to recover sufficiently from a serious illness that you can live without life sustaining measures.

For example, you may wish to direct your guardian to refuse medical treatment necessary to prolong your life.

If your health situation is as outlined above you may also wish to direct your guardian that the following life sustaining measures are not to be provided:

  • medical treatment supplanting or maintaining the operation of your vital bodily functions that can not operate independently including:
    • life support;
    • assisted ventilation;
    • artificial nutrition;
    • artificial hydration; and
    • cardiopulmonary resuscitation.

You may also authorise your guardian to obtain from your:

  • health, dental, or hospital care providers ; or
  • retirement village or nursing home

information and documents they require concerning:

  • treatment or care given or proposed to be given to you;
  • the results of any tests on you; or
  • your whereabouts in any health care facility, hospital, aged care facility or nursing home.

What treatment can your Enduring Guardian not consent to?

An enduring guardian is not empowered to make decisions about your financial affairs (this requires a power of attorney).

Certain treatments require NCAT’s consent. They include:

  • any treatment that is intended, or is reasonably likely, to render you permanently infertile;
  • any new treatment that has not yet gained the support of a substantial number of
    medical practitioners or dentists specialising in that area of practice; or
  • any treatment the regulations declare to be special treatment, including:
    • termination of a pregnancy;
    • vasectomy or tubal occlusion; and
    • the use of an aversive stimulus.

Your enduring guardian can also not:

  • make a will for you;
  • vote for you;
  • consent to marriage.

Can I cancel the appointment of my Enduring Guardian?

Yes, if it is in writing using a “revocation of appointment of guardian” form signed in the presence of an “eligible witness”. Eligible witnesses include lawyers, Registrars of the Local Court, and approved employees of the NSW Trustee and Guardian or
the Office of the Public Guardian. Justices of the Peace are not eligible witnesses.

You must give your guardian written notice that you have revoked the appointment. You must also have the legal capacity at that time to revoke the appointment.

If you marry, the appointment is automatically cancelled unless you marry your guardian.

Relationship Between Enduring Guardian and Enduring Power of Attorney

A Power of Attorney is a legal document in which you appoint a person to do certain financial things on your behalf.

An enduring Power of Attorney will continue to operate if you lose capacity (due to suffering from dementia or being in a coma after an accident).

If that occurs and you have not made an enduring power of attorney, an application may need to be made to NCAT for someone to be appointed to handle your financial affairs.

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 minimises the need for your family or carer to apply for a guardianship order (and hence potentially a financial management order). However, it does not preclude an application by a person genuinely concerned for your welfare for a guardianship order or a financial management order.

Although your attorney and your guardian deal with different aspects of your welfare, they are intimately linked because lifestyle decisions made by your guardian will affect your financial situations and vice-versa. Therefore, you should consider the compatibility of your attorney and your proposed guardian before making an appointment.

The Next Step

The appointment of an enduring guardian requires your lawyer to prepare a legal document.

We can advise you and draft an Appointment of Enduring Guardian at a reasonable cost. 

Our advice may include:

  • the most appropriate person to appoint;
  • whether to appoint more than one person;
  • whether to appoint multiple guardians jointly, severally, or jointly and severally; and
  • the benefits of appointing a principal guardian and a substitute guardian.

The document must be signed by you and the person/s you appoint as your guardian/s in the presence of an eligible witness who must sign a certificate stating that they have explained the documents to the guardian/s.

Advance Care Directive

An advance care directive may be included in your Appointment of Enduring Guardian.

It can include specific directions to your guardian/s 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 cardiopulminary resuscitation.

You can also specify which medical professional is to treat you and where you are to live.

We offer to include an Advance Care Directive in your Appointment of Enduring Guardian at no additional cost. If you would prefer an Advance Care Directive tailored to your specific needs we will take your instructions, advise you and draft it as a separate document at a reasonable cost.

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