Enduring Guardianship

1. What is an Enduring Guardian?

An Enduring Guardian is a person who you can appoint to make medical, dental, aged care and other lifestyle decisions on your behalf.  An Enduring Guardian will usually exercise these types decisions when a person is in the has either lost or is in the process of losing their capacity to make decisions.

2. Why appoint an Enduring Guardian?

There are many things that can affect a person’s health that might prevent them from being able to make decisions.  These can include where a person has a stroke, a car accident, Alzheimer’s disease or suffer from a terminal illness.  Appointing an Enduring Guardian ensures that someone is there to help manage your health decisions.

Many people also often confuse the appointment of an Enduring Guardian with a Power of Attorney.  A Power of Attorney only authorizes a person to make decisions about a person’s finances and does not give them the power to make health decisions.

3. How does it work?

An appointment of Enduring Guardianship is normally prepared by a lawyer.  It also always needs to be witnessed by a lawyer too. The appointment of Enduring Guardianship should also include any information about the types of decisions that you want your Enduring Guardian to make and any wishes that you might have in relation to the types personal care that you want to receive.

Usually Enduring Guardians will be able to:

– Decide the types of medical treatment you receive;

– Decide the type of dental treatment you receive;

– Decide which aged care facility or nursing home that you reside at;

– Access the results of any tests on you;

– Access your medical records; and

– Make decisions about life support if you are in a persistent vegetative state.

4. Who should I appoint as my Enduring Guardian?

The Enduring Guardian has considerable responsibility for your wellbeing. It is therefore important to choose someone trustworthy. Importantly, the Enduring Guardian cannot be a person providing treatment or care to you on a professional basis at the time of the appointment. The person being acting as an Enduring Guardian must be at least 18 years of age.

Normally a husband and wife will appoint each other as their Enduring Guardians and sole surviving parents will normal choose to appoint trusted children.

5. Can I appoint more than one Enduring Guardian?

It is possible to appoint more than one Enduring Guardian, however when appointing more than one, you should choose people that can cooperate with each other and work together in your best interests.

You may appoint your Enduring Guardians to act:

  • Jointly and severally (the Enduring Guardians can act together or separately);

  • Jointly (the Enduring Guardians must agree on all decisions).

If you appoint the Enduring Guardian’s to act jointly and severally then the appointment continues even when one of the Enduring Guardians can no longer act.

However, if you appoint your Enduring Guardians to act jointly and one of the Enduring Guardians can no longer act for some reason, for example, because of death or incapacity, then this will automatically end the appointment of Enduring Guardian unless you specify otherwise.

6. What sort of decisions is an enduring guardian unable to make?

An Enduring Guardian cannot make a will for you, vote on your behalf, consent to marriage, manage your finances, or override your objections, if any, to medical treatment.

7. Advanced Care Direction

If you have definite views on issues such as life support and the care to be provided to you in the event of a terminal illness, you may provide for these views in the Enduring Guardianship document.

8. What if there is doubt about a person’s capacity?

Where there is significant doubt about whether a person has the capacity to appoint an Enduring Guardian then an appropriately qualified medical practitioner should assess the person’s understanding before the Enduring Guardianship document is executed.

9. When does an Appointment of Enduring Guardian take effect?

The appointment of Enduring Guardian usually takes effect immediately but will usually only be used after you have become unable to make your own personal or lifestyle decisions. The Enduring Guardian will also usually seek the opinion of a medical practitioner about your capacity to make decisions before starting to act on your behalf.

10. When does an Appointment of Enduring Guardian cease to have effect?

An Appointment of Enduring Guardian ends in the following circumstances:

  • When you die;

  • If you revoke the appointment;

  • If you marry after appointing an Enduring Guardian;

  • If one of the Enduring Guardians dies, resigns or becomes incapacitated and they were appointed jointly (unless you provide otherwise); or

  • If the Guardianship Tribunal revokes the appointment of the Enduring Guardian.

While you are considered capable of making your own decisions you may choose to revoke the appointment of an Enduring Guardian by way of written revocation and appoint a new person as your Enduring Guardian. You may also change the functions or directions given to your Enduring Guardian.

If you lose the capacity to make your own personal or lifestyle decisions, you are not able to revoke or make changes to the appointment, only the Guardianship Tribunal may do this in these circumstances. Anyone with a genuine concern for your welfare can apply to the Guardianship Division of the New South Wales Civil & Administrative Tribunal for a review of the appointment of an Enduring Guardian. The Tribunal may then either revoke the appointment or confirm it, or alternatively vary the functions of the appointment.

11. Can an Appointment of Enduring Guardian operate outside of NSW?

If you wish to use your appointment of Enduring Guardian document in another state or overseas, you should make enquiries in that state or country as each state and country has different laws regarding Enduring Guardianship. In the majority of cases an Enduring Guardianships prepared in New South Wales will usually be able to be registered in other states.

Enduring Guardianship appointments made in another Australian state or territory, on the other hand, are recognised automatically in New South Wales.  Enduring Guardianships made in other countries are not always recognized in New South Wales.

If you have any further questions or require relevant legal services, feel free to contact us or visit our Northern Beaches office.

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