Many people focus on planning ahead for their financial and business affairs by making a Will and a Power of Attorney but do not consider what will happen if they find themselves unable to make lifestyle and medical decisions due to illness or accident.
An Enduring Guardian is someone you appoint to make lifestyle, health and medical decisions for you when you are not capable of doing this for yourself. You decide the areas or ‘functions’ that you wish to give to your Enduring Guardian. They make include making decisions such as where you live, what services are provided to you at home and what medical treatment you receive.
Enduring Guardianship only comes into effect if or when you lose capacity and will only be effective during the period of incapacity, therefore, it may never become operational. However, it is a good way to plan for the future, particularly for unforeseen situations.
Appointing an Enduring Guardian may give you a sense of security knowing that if anything happens and you are no longer able to make decisions for yourself you have appointed someone you trust.
The law in NSW assumes everyone has capacity to make their own decisions unless there is evidence that you have lost capacity to do this. To appoint an enduring guardian, you need to understand the nature and effect of the enduring guardianship document at the time it is made. This means you must be able to understand that you are appointing someone to make health and lifestyle decisions for you, in case you lose capacity to make your own decisions in these areas. It is also important that you understand that you can revoke the appointment and make another appointment at any time provided you continue to have capacity to make this decision.
The Guardianship Act 1987 (NSW) makes it possible for you to appoint an enduring guardian. An enduring guardian is a substitute decision-maker of your choice with legal authority to make health and lifestyle decisions on your behalf if needed, such as where you may live, the services you need, what health care you receive, or consenting to medical and dental treatment on your behalf.
An enduring guardian legally appointed by you should consider your views both past and present. The enduring guardian should also consider the views of professionals and other people important in your life, take into account the circumstances existing at the time then make decisions on your behalf should the need arise. The enduring guardian’s powers only come into effect and remain while you lack capacity to make decisions. The enduring nature of the power means that the guardian’s authority continues while you are incapacitated.
The person you appoint must be 18 years or older. Given the important nature of this decision-making role, it is essential the person you appoint understands their responsibilities as a substitute decision-maker.
Your enduring guardian should be someone you trust to be able to take into account your views and previous lifestyle choices and to make decisions in your best interests. When choosing your enduring guardian, it helps to consider:
There are some people who are not eligible to be appointed as your enduring guardian. You cannot employ someone to be your enduring guardian. Other people excluded are those who are paid to provide you with professional or administrative services, such as your GP, community nurse, solicitor or manager of an aged care facility. Relatives who provide you with a service for a fee cannot be appointed as your enduring guardian. The exception is a person who cares for you and receives a Carers Allowance or Carers Payment.
If you wish to appoint an enduring guardian, you must sign a legal form of appointment. The person or people you appoint need to sign the same form in front of an eligible witness to show that they understand what the appointment means to be your enduring guardian.
Only an Australian legal practitioner, Registrar of the Local Court, overseas legal practitioner may witness your signature and the signatures of the people you appoint.
The witness cannot be the same person you appoint as your enduring guardian.
Things to consider when completing the form of appointment:
Yes, you can appointment more than one Enduring Guardian, they can be appointed jointly, severally or jointly and severally.
However, there are a number of things you may wish to consider when deciding to appoint more than one enduring guardian:
You cannot appoint your enduring guardian to make any decisions that are against the law. For example, euthanasia is illegal in all States and Territories of Australia.
Your enduring guardian cannot make a will or alter your will on your behalf.
An enduring guardian cannot vote or consent to marriage on your behalf.
Your enduring guardian (if they have this function), can only consent to medical and dental treatment that will promote or maintain your health and wellbeing.
Your enduring guardian cannot consent to medical or dental treatment on your behalf when you object to that treatment.
The appointment of your enduring guardian takes effect only if you lose the capacity to make your own health or lifestyle decisions. Remember your enduring guardian can only make a decision under the function given to them.
In some cases it will be clear that a person has lost capacity and is unable to make decisions for themself, for example, in cases of severe illness or accident.
In other cases the decision about whether a person has lost capacity to make their own decisions is less clear. For example, a person with dementia may vary in their decision-making capacity or a person diagnosed with a mental illness may have episodes which affect their ability to make their own decisions. If there is concern or disagreement over a person’s capacity to make their own decisions, the Guardianship Act 1987 (NSW) states that a medical certificate may be needed to establish whether the enduring guardian can use their authority.
When does an Enduring Guardianship end?