Overview

We all prefer to decide for ourselves where we live and what medical treatment and services we have. Unfortunately this is not always possible. Every day people are involved in accidents or become sick. Sometimes this can lead to them being unable to make decisions for themselves.

Under the NSW Guardianship Act, you can appoint an enduring guardian to make decisions for you if you lose the capacity to do this for yourself.

An enduring guardian is someone you choose to make personal or lifestyle decisions on your behalf when you are not capable of doing this for yourself. You choose which decisions you want your enduring guardian to make. These are called functions. You can direct your enduring guardian on how to carry out the functions.

Important points

• You must be over18 to appoint an enduring guardian.
• You can appoint one or more people to be your enduring guardian but you must have the capacity to understand what you are doing.
• Your enduring guardian must be at least 18 years old and someone you trust to make decisions in your best interests.
• The Act excludes the appointment of those who provide care or support services on a professional basis, or their relatives.
• Your marriage automatically revokes the appointment of your enduring guardian.
• Enduring guardianship ends when you die, or when you revoke the appointment.
• Your appointment of enduring guardian takes effect only if you become unable to make your own personal or lifestyle decisions.

What sort of decisions can an enduring guardian make?

Typically they can decide (within parameters you set):

• where you live;
• what health care you receive;
• what other personal services you are to receive and
• medical or dental treatment you can receive.

You can give your enduring guardian as many or as few functions as you like.

What decisions can’t an enduring guardian make?

An enduring guardian cannot consent to anything unlawful or perform services such as vote on your behalf, consent to marriage, manage your finances, or override your objections, if any, to medical treatment. In case of disputes regarding treatment an application can be made to the Guardianship Tribunal.

What principles guide an enduring guardian?

Your enduring guardian must act within the principles of the Guardianship Act, in your best interests and within the law. You cannot give your enduring guardian a function or a direction which would involve them in an unlawful act.

How many guardians can I appoint?

You can appoint one or more persons as enduring guardian. If you appoint more than one enduring guardian, you can direct them to act

• jointly (the enduring guardians must agree on all decisions),
• severally (each enduring guardian can make decisions separately from the others), or
• jointly and severally (the enduring guardians can act together or separately).

You can also appoint an alternative enduring guardian who can act only if the original enduring guardian(s) dies, resigns or becomes incapacitated.

How do I appoint an enduring guardian?

You start by discussing the appointment with your chosen enduring guardian and make sure they are willing to take on this responsibility. You should discuss your wishes in detail and ensure that your guardian clearly understands them.

It may be prudent to discuss the appointment with family or other significant people in your life.

You then need to complete the prescribed form or a document containing the same information. The form has to be signed by:

• you or an eligible signer on your behalf;
• the enduring guardian(s);
• the witness for each signature who must be a barrister, a solicitor or a clerk of the local court.

It is then a good idea to keep the appointment form in a safe place. Tell someone else where it is. Give a copy to your enduring guardian. You may wish to give copies to significant people in your life (eg your doctor).

What if I change my mind?

While you are capable of making your own decisions, you can revoke the appointment of an enduring guardian. To do this you need to complete a Revocation of Appointment of Enduring Guardian form. This form will also need to be witnessed by an eligible witness. You have to advise the enduring guardian in writing that their appointment has been revoked. Once this is done you can recommence the process if you wish to appoint someone else.

However, only the Guardianship Tribunal can make changes to the appointment if you have lost the capacity to do this for yourself.

What happens if my enduring guardian cannot continue?

If the person you have appointed dies, resigns or becomes incapacitated, the Guardianship Tribunal can, in limited circumstances, order another person to be appointed as enduring guardian on your behalf. Someone will need to lodge an application on your behalf.

More information

You can discuss the appointment of an enduring guardian with RetireLaw who can prepare a form of appointment tailored to your requirements and witness its signing. Call Terry Purcell or Dawn Wong on 02 9970 0800 or send us an email.

This fact sheet is based on information in the brochure Planning Ahead....Enduring Guardianship (Guardianship Tribunal). Information can be also obtained from the Guardianship Tribunal on 02 9555 8500 or its web site www.gt.nsw.gov.au.

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