AEG

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 health and lifestyle decisions, a guardian can make those decisions on your behalf.

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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).

It helps avoid a situation where family members who cannot agree about what is in your best interests 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 lists 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?

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.

Which of these functions your guardian may exercise is up to you.

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?

You can revoke your enduring guardian appointment as long as you still have the capacity to understand. A revocation must be in writing, witnessed by a legal practitioner or registrar of the local court, and given to the person previously appointed enduring guardian. The appointment will be revoked if you marry after you make the appointment unless you appointed the person you marry.

What's the difference between an enduring guardian an enduring attorney?

An enduring power of attorney is a legal document in which you appoint someone to manage your financial affairs on your behalf. It continues operating 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 those parts of your financial affairs dealt with by the order.

Although your attorney and your guardian deal with different aspects of your welfare, they are linked because decisions made by one affects the other. Therefore if you’re considering appointing different people as your attorney and as your guardian, you should consider their compatibility.

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 instructs your guardian about the provision of life support, assisted ventilation, artificial hydration and nutrition, and cardiopulmonary resuscitation. This can be deleted from the appointment of enduring guardian without affecting its enforceability.

An Advance Care Directive tailored to your specific needs (e.g. specifying which medical professional is to treat you) may be drafted as a separate document.