What is an Enduring Guardian?
An Enduring Guardian is a person who you legally appoint to manage and deal with your personal or health issues when you are no longer in a position to make your own decisions.
The Enduring Guardian is able to make decisions in relation to:
- Accommodation – to decide where you live
- Health Care – to decide what health care you receive
- Services – to decide what personal services you should have to support and assist you
- Consent to medical and dental treatment – to give or withhold consent to medical and dental treatment on your behalf
- Access – to decide who you should have contact with
It is important to note that the appointment of an Enduring Guardian can only come into effect when you totally or partially lose the capacity to make your own major personal decisions.
- An Enduring Guardian in NSW cannot make decisions or deal with your money or assets. If you are seeking to have another person make decisions or manage your financial affairs, you should appoint a general or enduring Power of Attorney.
Who can appoint an Enduring Guardian?
Anyone over 18 years of age and has mental capacity to understand what they are signing or agreeing to, can appoint an Enduring Guardian.
Who can be your Enduring Guardian?
Your Enduring guardian must be 18 years or older and have to be willing to accept being appointed as your Enduring Guardian. Your Enduring Guardian should be someone you absolutely trust to make decisions in your best interest.
- You can appoint more than one person as your enduring guardian.
If you appoint more than one person you can appoint them so they can only make decisions together (jointly) or individually (severally). You can appoint the same person you choose as your attorney (in your enduring power of attorney) to be your enduring guardian as well.
You cannot appoint a person who is providing treatment, accommodation, support or care to you on a paid basis as your Enduring Guardian. You can, however, appoint a person receiving a carer payment or allowance.
How do you appoint an Enduring Guardian?
The first thing to do is to talk to the person(s) you intend to appoint and ensure that they are willing to take on the responsibilities that come with being an Enduring Guardian.
The appointment must then be done using a written prescribed form and must be signed by you, your guardian(s) and then witnessed by a solicitor or barrister.
- The witness signs a certificate stating that they have advised you on the effects of the prescribed document and that you understand these effects.
Where should you keep the appointment form?
It is important that you keep the executed appointment form in a safe place where it can be found in time of need. It is preferable that you tell others close to you where it is and also, to give copies to your doctor, family members and your Enduring Guardian.
Is an Enduring Guardianship the same as Advanced Care Directive?
An Advance Care Directive (ACD) is a different document from the legal form used for the Enduring Guardianship (it is sometimes referred to as a ‘living will’).
The ACD document sets out your wishes (and values) that need to be considered, by the person acting on your behalf, before making decisions in relation to medical treatment for the purposes of prolonging your life in circumstances where you may be terminally ill or irreversibly injured.
- The ACD does not need to be in a prescribed form but needs to made whilst you have mental capacity, must be clear, unambiguous and must be signed. You should also consider having someone witness your directive.
When does the appointment of an Enduring Guardian start?
Your Enduring Guardian’s appointment comes into effect only when (and if) you become unable to make your own personal (or lifestyle) decisions.
How is the appointment of an Enduring Guardian cancelled?
The appointment of an Enduring Guardian can be cancelled if:
- You choose to cancel the appointment. This is done using the prescribed form and signed by you and witnessed by a solicitor or barrister.
- You Enduring Guardian no longer wishes to act on your behalf.
- You marry after you make the appointment.
- The guardianship tribunal makes an order to cancel the appointment.