Enduring Guardianship

Why appoint an enduring guardian?

We all prefer to decide for ourselves where we live, who we see, which doctor we go to, what medical treatment we will receive and what services we will 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.

People have been able to plan ahead and appoint a person under an enduring power of attorney to make decisions about their money and property if they lose the capacity to do this for themselves. There has been no similar way to appoint someone with legal authority to make personal or lifestyle decisions on your behalf.

Amendments to the Guardianship Act now give you a way to appoint an enduring guardian. You can appoint more than one guardian if you wish.

You can choose what decisions your guardian can make for you.

What is an enduring guardian?

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 give your guardian directions on how to carry out the functions.

What sort of decisions can an enduring guardian make?

You can give your enduring guardian as many or as few functions as you like. You may give the guardian directions about how to exercise the decision making functions you give them. For example you can direct your guardian to consult with your close friend on each function whenever possible. You can give your guardian a function, for example to decide where you should live, and direct that they can override your objection to their decision if it is in your best interests to do so. You cannot give your guardian the authority to override your objection to medical treatment. Only the Guardianship Tribunal can do this.

What sort of decisions is an enduring guardian unable to make?

An enduring guardian cannot make a will for you, vote on your behalf, consent to marriage, manage your finances or override your objections, if any, to medical treatment.

Who can appoint an enduring guardian?

If you are over 18 years, you can appoint one or more people to be your guardian. When you appoint an enduring guardian you must have the capacity to understand what you are doing.

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 interest if you are not capable of making decisions for yourself. Your guardian must act within the principles of the Guardianship Act, in your best interests and within the law. You cannot give your guardian a function or a direction which would involve them in an unlawful act.

The appointed guardian cannot be a person providing treatment or care to you on a professional basis at the time of appointment. You can appoint more than one person. If you appoint more than one enduring guardian, you can direct them to act jointly or separately. If you want the guardians to act jointly on every function, complete only one form. If you appoint more than one guardian and give them different functions, you need to complete a separate form for each guardian.

How do I appoint an enduring guardian?

You need to discuss the appointment with your chosen guardian and make sure they are willing to take on this responsibility if you can no longer make decisions for yourself. It would be wise to discuss the functions in detail and ensure that your guardian clearly understands your wishes and any direction associated with any function.

You may also wish to discuss the appointment with other significant people in your life. Your solicitor can prepare an appropriate document and witness you and your guardian signing the form. You need to complete the attached form or a document containing the same information and have a lawyer or the Clerk of a Local Court witness you and your enduring guardian signing the form.

What should I do with the appointment?

Its a good idea to keep the appointment form in a safe place. Tell someone else where it is. Give a copy to your guardian. You may wish to give copies to significant people in your life.

When does it take effect?

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

Can 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 a lawyer or the Clerk of a Local Court. You have to advise the enduring guardian in writing that their appointment has been revoked.

You can appoint a new person as your enduring guardian. You will need to complete a new form provided they accept their appointment.

If you are still capable of making your own decisions you can amend the appointment by completing another form. Only the Tribunal can make changes to the appointment if you have lost the capacity to do this yourself.

What if someone else has concerns about the actions of my enduring guardian?

If you are not capable of making your own decisions and others are concerned about your welfare because of your enduring guardian’s actions, anyone with a genuine concern for your welfare can apply to the Tribunal for a review of the appointment. The Tribunal can revoke the appointment or confirm it. It may also change the functions in the appointment or make a guardianship order.

The Tribunal does not supervise enduring guardians and will only become involved if it receives an application with respect to you or receives information which leads it to initiate a review of your appointment in your interests.

When does enduring guardianship end?

Enduring guardianship ends when you die, if you revoke the appointment, or if the Tribunal makes a guardianship order or suspends the appointments.

Minor and major medical treatment

Minor and major treatments include all medical and dental treatments except the following treatments, which only the Tribunal can consent to:

  • Sterilisation – includes vasectomy and tubal occlusion.
  • Termination of pregnancy.
  • Aversives – mechanical, chemical or physical.
  • Any new treatment that has not gained the support of a substantial number of doctors or dentists specialising in area.
  • Use of medication that affects the central nervous system when dosage, duration or combination is outside accepted norms.
  • Androgen-reducing medications for behavioural control.

Evidence of appointor’s capacity

Under Section 6N, in any proceedings in which the question of whether, on a particular day or during a particular period, the appointor of an enduring guardian was a person in need of a guardian is in issue, the certificate of a medical practitioner to the effect that the appointor was, on that day or during that period, totally or partially incapable of managing his or her person because of a disability is evidence of the fact that the appointor was a person in need of a guardian.

The dedicated team at Willis and Bowring are able to assist with all of your Estate Planning needs to ensure that the assets you worked hard for benefit your loved ones in the most appropriate way. If you wish to learn more about how we can protect your assets, please contact our experienced Estate Planning team of Lou Polito or Adeline Schiralli on (02) 9525 8100 today.