Pursuant to the provisions of Guardianship Act 1987 (NSW) any capable adult person is able to appoint substitute decision makers on their behalf in the event they become unable to make decisions about their own affairs. Under the Guardianship Act, a Guardian is defined to be:
a person who is, whether under this Act or any other Act or law, a guardian of the person of some other person (other than a child who is under the age of 16 years), and includes an enduring guardian.
The general principles of acting as a Guardian include that:
- the welfare and interests of an incapable person should be given paramount consideration,
- the freedom of decision and freedom of action of an incapable person should be restricted as little as possible,
- such incapable persons should be encouraged, as far as possible, to live a normal life in the community,
- the views of an incapable person in relation to the exercise of any Guardianship functions should be taken into consideration,
- the importance of preserving the family relationships and the cultural and linguistic environments of an incapable person should be recognised,
- an incapable person should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
- an incapable person should be protected from neglect, abuse and exploitation.
Considering the above principles, it is not surprising that many people elect to appoint their spouse as an Enduring Guardian. This, however, means that care needs to be taken when a person marries, divorces or separates from someone that may be nominated or appointed as their Guardian/Enduring Guardian.
Marriage automatically revokes by law any appointment of an Enduring Guardian, that is, unless the marriage is to the same person appointed as the Enduring Guardian.
Certain appointments, however, are not effected by the automatic revocation by law, including where the appointed Enduring Guardian was in an already solemnised same sex marriage that was recognised in Australia as valid when the Commonwealth Government legalised same sex marriage in December 2017.
Unless an Enduring Guardian document is revoked by the person who made the document, or it is declared to be invalid or amended by an order of the Guardianship Division of the NSW Civil and Administrative Tribunal (or other higher authority), the Enduring Guardian document will continue to operate.
For this reason, any changes in a person’s relationship status or their circumstances should prompt a review of any appointed Guardians.
The appointment of an Enduring Guardian is not automatically revoked by law when a person divorces their Enduring Guardian. This means that unless the document is expressly revoked by the person, the appointment of their ex-spouse as their Guardian continues. That may not be a palatable or desirous outcome if the relationship between the person and their appointed Guardian is no longer harmonious.
Whether you are married, separated or divorced you should still consider how marriage may affect your legal interests and your estate planning matters.