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Home | Will, Will Disputes & Estate Law | Appointment of Enduring Guardian

What is an Enduring Guardian?

An enduring guardian makes health and lifestyle decisions for you if you have lost the capacity to make those decisions for yourself. Health decisions may include medical or dental treatment, whereas lifestyle decisions may include where you reside.

If you appoint more than one guardian you must decide if they are to act either:

  1. Jointly – all appointed attorneys must sign all documents; or
  2. Jointly and severally – each appointed attorney can act separately from the other attorneys.

The document must be signed by you and the person you appoint as your guardian in the presence of a solicitor. The solicitor must state that you appeared to understand the effect of the document. On your death your enduring guardianships end, your will becomes active and your appointed executor takes over the role of carrying out the instructions stated in your will.

Appointing an Enduring Guardian

Your appointed guardian is entitled to medical records and information to the extent that it is necessary to assist them in carrying out their functions. In the event you lose capacity and you have not appointed a guardian a member of your family or another person interested in your well-being may seek an order from the Guardianship Division. The Guardianship Tribunal may or may not appoint a person that you would have preferred to act as your guardian.

The appointment of an enduring guardianship commences when you lose capacity and continues until you die or the appointment is revoked. On marriage the appointment is automatically revoked unless you marry your appointed enduring guardian. If someone has genuine concerns about your welfare and are concerned about what your enduring guardian is doing, they can apply to have the appointment reviewed.

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FAQ

If I appoint an enduring guardian, will I lose control of my affairs?

If I appoint an enduring guardian, will I lose control of my affairs?

Appointing an enduring guardian does not mean you will automatically lose control of where you live, what kind of health care you receive or which doctors you see. If you retain the capacity to make decisions for yourself, you will still manage your affairs as usual. A guardian will only make decisions on your behalf when you have lost the ability to make health and lifestyle choices yourself.

You can choose the powers and conditions for how your guardian is to act when you appoint them. You can revoke the appointment of an enduring guardian at any time as long as you still retain the capacity to make decisions for yourself.

When does the appointment of an enduring guardian take effect?

When does the appointment of an enduring guardian take effect?

You can choose when an appointment takes effect, whether it be from the date you sign the document, the date the appointment is accepted, or upon some other event such as medical evidence being provided to the effect you have lost capacity. Decisions will continue to be made by you until you lose capacity.

What duties and responsibilities does an enduring guardian have?

What duties and responsibilities does an enduring guardian have?

Your enduring guardian must always act in your best interests. They are also bound to adhere to the provisions of the Guardianship Act (NSW) 1987 which sets out that they must always place your welfare and interests above their own and they must consult with you and allow your decisions and wishes to be respected wherever possible.

What directions and limitations can I give to my enduring guardian?

What directions and limitations can I give to my enduring guardian?

You can elect to give directions to your guardian about what sorts of health care, accommodation, services and treatment you receive. Similarly, you can limit your guardian to only be able to make decisions about certain matters.

Who should I appoint as my enduring guardian?

Who should I appoint as my enduring guardian?

You should only appoint people you trust as your enduring guardian. You will be relying on them to act diligently and faithfully in the execution of their duties; and in your best interests.

How many enduring guardians can I appoint?

How many enduring guardians can I appoint?

You can appoint more than one person to act as your enduring guardian. You can appoint them so they must act together (jointly) or so they can make decisions independently of the other. You can also nominate a substitute enduring guardian in the event your primary guardian resigns or becomes incapable of continuing to act as your guardian.

It is a good idea to limit the number of people you appoint to act as a guardian at any one time. Practical considerations such as how close they are to you, how experienced they are in health and care related matters, and whether they can work with any other appointed guardians should also be considered.

The role of an enduring guardian for health decisions

The role of an enduring guardian for health decisions

A doctor or dentist must have consent from your guardian to carry out minor or major medical or dental treatment on you if you have lost capacity to make the decision for yourself.

However, a doctor is not required to obtain that consent if the treatment is necessary, as a matter of urgency to:

  • Save your life;
  • Prevent serious damage to your health; or
  • Prevent you from suffering or continuing to suffer significant pain or distress.

 

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