Enduring Guardianship

An Enduring Guardianship document allows you to appoint one or more people (your “enduring guardians”) to legally make personal/health and lifestyle decisions for you – but only when you are not capable of making these decisions for yourself.

An accident or illness, or even the passing of time, could result in you becoming temporarily or permanently unable to make decisions for yourself. By appointing an Enduring Guardian, you choose who you want to make those lifestyle decisions on your behalf.

Accidents can happen – so don’t delay getting an Enduring Guardianship document in place.

What is an Enduring Guardianship?

An enduring guardianship is a legal document made by the appointor allowing the enduring guardian to make decisions about where the appointor can live, what health care the appointor receives, what other personal services the appointor receives and to consent to medical or dental treatment for the appointor. The form of the document is governed by the Guardianship Act (NSW).

Who can make an Enduring Guardianship?

Any person who is over the age of eighteen (18) years who is legally competent may make an enduring guardianship.  Being legally competent means that the person understands the significance and legal effect of the enduring guardianship.

Who can be an Enduring Guardian?

The person you appoint as your enduring guardian must be at least 18 years old and someone you trust to make decisions that will be in your best interests. Often, it is a spouse, child, children, relative; or some other significant and trusted person.

Can more than one Enduring Guardian be appointed?

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 or separately (severally).

Alternative Enduring Guardian

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

Can the Enduring Guardian make financial decisions for the Appointor?

An enduring guardianship only authorises the enduring guardian to make personal and lifestyle decisions for the appointor. An enduring guardianship does not permit the enduring guardian to make financial decisions for the appointor. An enduring guardian can not, for example, withdraw money from your bank account or sign a contract on your behalf.

Anyone who wants another person to make financial decisions for them should appoint a Power of Attorney under the Powers of Attorney Act.

Can an Enduring Guardian delegate power?

An enduring guardian cannot delegate any of his or her functions to another person.

When does an Enduring Guardianship take effect?

The appointment of your enduring guardian takes effect only if you become unable to make your own personal or lifestyle decisions. Your enduring guardian may wish to seek the opinion of a medical practitioner about your capacity to make decisions before acting on your behalf. If there is any doubt about your capacity to make decisions, a medical practitioner may have to assess your capacity.

When will an Enduring Guardianship terminate?

An enduring guardianship ends when you die, or when you revoke the appointment. A joint enduring guardianship will also end if one of the guardians dies, resigns or becomes incapacitated unless you provide otherwise in the form. An enduring guardianship appointment is suspended if the Guardianship Tribunal makes a guardianship order. The Tribunal may revoke the appointment.

What happens if you get married?

An enduring guardianship is automatically revoked if you marry after appointing an enduring guardian. If you wish to re-appoint the guardian you need to sign a new enduring guardianship reappointing the person.

How do you appoint an Enduring Guardian?

You should discuss the appointment with your chosen enduring guardian and make sure they are willing to take on this responsibility if you were no longer capable of making decisions yourself. You should discuss the functions in detail and ensure that your guardian clearly understands your wishes.

You may also wish to discuss the appointment with your family or other significant people in your life.

You then need to complete and sign an Enduring Guardianship form.

Can you change your mind?

Provided you are capable of making your own decisions, you can revoke the enduring guardianship. This is done by completing a Revocation of Appointment of Enduring Guardian form. This form will also need to be witnessed by an eligible witness. The appointor should advise the enduring guardian in writing that the appointment has been revoked.

After the appointor has lost capacity, only the Guardianship Tribunal can make changes to the appointment.

What happens if someone is worried about what the Enduring Guardian is doing?

Anyone with a genuine concern for the appointor’s welfare can apply to the Guardianship Tribunal for a review of the appointment, if they feel that the enduring guardian is not making appropriate decisions on behalf of the appointor. The Tribunal can revoke the appointment or confirm it. It may also change the functions in the appointment or make a guardianship order.

How can Bull, Son & Schmidt assist?

If you need any assistance contact one of our lawyers at [email protected] or call 02 9439 5299 for a no-obligation discussion and for expert legal advice.