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Fact Sheet - Appointment of Enduring Guardian

Fact Sheet – Appointment of Enduring Guardian

Published on April 28, 2021 by Josephine Heesh , Dianne Retief and Gillian KirwanJosephine Heesh , Dianne Retief and Gillian Kirwan

Should you have an Appointment of Enduring Guardian?

There may come a time when you will need someone to make important health decisions and lifestyle decisions on your behalf.  This may be due to a temporary or permanent loss of decision-making abilities from either an illness, injury or disability.  It is important to note that this can happen at any stage in your life not just when you are over a certain age.  An Enduring Guardian is someone you appoint to legally make lifestyle and health decisions on your behalf when you don’t have the capacity to make those decisions yourself.

What does an Enduring Guardian do?

Your Enduring Guardian can:

  • make decisions regarding where you live and the personal services you receive; and
  • what healthcare, medical and dental treatment you may receive.

Having a discussion with your Enduring Guardian advising them of your wishes about lifestyle decisions is important and will assist them in the decision making process. For example, letting them know if you have any wish to remain in your home or what type of medical treatment you want or do not want.

The role of an Enduring Guardian only commences to make decisions on your behalf when you are unable to.  A doctor or specialist can be called if uncertain whether your Enduring Guardian should start making decisions on your behalf.

The appointment will continue for as long as required unless:

  • you revoke or cancel it while you have the mental capacity to do so;
  • your Enduring Guardian resigns, dies or is unable to carry out the role;
  • the appointment is changed or revoked by the Guardianship Tribunal.

Who can make medical decisions on my behalf?

If you are unable to give your consent the doctor must get consent from a ‘person responsible’.

In order of priority, a ‘person responsible’ is either:

  • your enduring guardian, if you have appointed one;
  • your most recent spouse or de facto, including a same-sex partner;
  • an unpaid carer currently providing support to you, or
  • a relative or friend who has a close personal relationship with you.

Who should you appoint?

You should appoint someone you trust such as a spouse, family member or very close trusted friend.

You can appoint someone who:

  • is over the age of 18;
  • lives in NSW; and
  • has decision making capacity.

It is important the person you appoint is willing to take on this role, is able to make decisions in difficult and emotional situations, understands your needs, wishes, values and beliefs, is easy to contact and understands they won’t be paid for this role. The person you nominate is required to accept the appointment in order for it to be valid

Is there a limit on the number of Enduring Guardians you can appoint?

You can appoint more than one Enduring Guardian. However, if you do, you will need to indicate whether the Enduring Guardians are to act “jointly”, “severally” or “jointly and severally”.  Enduring Guardians appointed “jointly” can only make decisions if they all agree.  If they are unable to agree they may need to apply to the Guardianship Tribunal for a decision.  Those who are appointed “severally” or “jointly and severally” are able to make decisions independently of each other. For example a person can appoint 2 of their children “jointly and severally”, so if one is not available, the other appointed child can make the decision.

What is a “substitute enduring guardian”?

This is someone you can appoint if your first appointed Guardian is unable to act. If you have not appointed a substitute guardian and you no longer have capacity and your Enduring Guardian is no longer able to make decisions, a person who is concerned for your welfare may make an application to the Guardianship Tribunal to decide who your Guardian should be.

Interstate

As with an Enduring Power of Attorney, most States and Territories recognise an Appointment of Enduring Guardian however if you move interstate, it would be a good idea to have your Appointment of Enduring Guardian updated.

Revocation or resignation

An Appointment of Enduring Guardian can be revoked at any time provided you still have mental capacity to manage your own affairs.  If you wish to revoke the Appointment, a Revocation of Appointment of Enduring Guardian must be completed and given to the Guardian advising of your wish to revoke the document.

A Guardian can resign at any time, by giving you notice in writing.  However, if you have lost capacity and are unable to make decisions at that time then your Enduring Guardian can only resign with the approval of the Guardianship Tribunal.

What if you get married after you have signed an Appointment of Enduring Guardian?

The Appointment of Enduring Guardian will be revoked if you marry after you appoint an Enduring Guardian (unless you marry your Enduring Guardian). However, a divorce does not automatically revoke the appointment.

Financial decisions

It’s important to note that an Appointment of Enduring Guardian cannot be used to make financial decisions for these types of decisions an Enduring Power of Attorney should be prepared. (see our separate note on the importance of this document)

Important note:

You cannot appoint a person who provides you, for a fee, with accommodation, health care or services to support your daily living activities. You cannot appoint a professional person like your doctor or the Public Guardian as your Enduring Guardian.

Conclusion

Should you wish to discuss the preparation and obtain a quote for an Appointment of Enduring Guardian, please contact Gillian Kirwan at Carroll & O’Dea Lawyers on 02 8226 7321.

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