Enduring Guardianship
Planning ahead for your future is an important step in ensuring your personal, health and lifestyle decisions are managed according to your wishes. Appointing an Enduring Guardian is a proactive way to make sure that someone you trust can make these decisions on your behalf if you lose the capacity to do so.
What is an Enduring Guardian?
An Enduring Guardian is a person you legally appoint to make health, lifestyle and personal decisions for you if you lose the ability to make these decisions yourself. This appointment is made through a formal legal document and ensures that your personal wishes are respected during times of incapacity.
In simple terms, “losing capacity” generally means you are no longer able to understand the relevant information, weigh it up and communicate a decision about your own affairs.
Unlike a Power of Attorney, which deals with financial and legal matters, an Enduring Guardian’s role relates to your health, living arrangements and personal care. Most people benefit from having both documents in place as part of a complete estate plan.
Why is appointing an Enduring Guardian important?
If you lose capacity without an Enduring Guardian appointment in place, your family and loved ones could face significant challenges. They may need to apply to the NSW Civil and Administrative Tribunal (NCAT) to be appointed as your guardian, which can be a lengthy, stressful and emotional process.
In some situations, there may be disagreements within the family about who should make decisions for you. In those cases, NCAT may appoint someone outside your family as your guardian. This could mean that important decisions about your health and living arrangements are made by someone who does not know you well or understand your wishes.
Many nursing homes and other care facilities will also expect that an Enduring Guardian has been appointed before they accept a person as a permanent resident. Having the document prepared in advance can help make any transition to care smoother and avoid unnecessary delays at a difficult time.
When does an Enduring Guardianship take effect?
An enduring guardianship only takes effect if you lose the capacity to make decisions for yourself. Until that time, you retain full control over your personal, health, and lifestyle choices. The enduring guardian’s authority begins when a medical professional or relevant authority determines that you are no longer able to make decisions independently.
Duties and Responsibilities of an Enduring Guardian
An enduring guardian must act in accordance with the principles of the Guardianship Act 1987 (NSW), ensuring that their decisions are made in your best interests and within the bounds of the law. They have the authority to make a range of decisions about your personal and health-related matters, including living arrangements, health care, personal services and medical consent:
- Living Arrangements: Deciding where you live, whether at home, in a care facility, or elsewhere.
- Healthcare: Choosing medical treatments, surgeries, or medications you may require.
- Personal Services: Determining what other personal services you receive, such as in-home care or rehabilitation.
- Medical Consent: Providing consent for medical or dental treatments in accordance with the law.
You can also provide specific directions to your enduring guardian, such as refusing life sustaining measures in certain medical circumstances.
However, there are limits to what an enduring guardian can do. They cannot make decisions about:
- Financial or Legal Matters: These decisions are managed through a Power of Attorney.
- Certain Medical Treatments: They cannot consent to treatments such as electroconvulsive therapy (ECT), sterilisation, termination of pregnancy, or psychosurgery.
- Illegal Actions: They must act within the bounds of the law and cannot make decisions that contravene legal requirements.
Who can be an Enduring Guardian?
The person you appoint as your enduring guardian must be at least 18 years old. Your chosen guardian should be someone you trust to make decisions in your best interests if you are not capable of making decisions for yourself.
The appointed guardian cannot be someone who is providing you with treatment or care on a professional basis at the time of appointment. For example, a paid carer, nurse, or doctor who is responsible for your care cannot act as your enduring guardian. However, a family member or friend who provides unpaid care is eligible.
You can appoint more than one person as your enduring guardian. If you choose to do so, you can specify whether they are to act jointly (making decisions together) or separately (allowing each to act independently). This flexibility allows you to tailor the arrangement to suit your needs and preferences.
What if I change my mind?
You can revoke or change your enduring guardianship at any time, provided you have the capacity to do so. If circumstances change, such as a breakdown in your relationship with your appointed guardian, it is important to update the document to reflect your current wishes.
To revoke or amend the appointment, you must complete the necessary legal steps, including notifying the appointed guardian and ensuring the changes are properly documented.
How our team can assist
Our team can guide you through the process of appointing an enduring guardian, ensuring that your wishes are clearly documented and legally enforceable. We can also assist with reviewing or updating existing documents to reflect your current circumstances.
Contact us today to discuss how we can help you secure peace of mind for the future.