Generally, under Common Law, a Guardian is a person who has the authority to make decisions relating to another person’s personal and lifestyle issues in case the other person is appointed through a legal document, a minor, is incapacitated or suffers from any other kind of disability. Generally, a minor, upon gaining the age of majority, can take his own decisions and there is no further need for a Guardian.
In Australia, an Enduring Guardian is a person who is appointed, while the subject has full capacity, to make important decisions on behalf of another person who is over 16 years of age and suffers from a disability or incapacity which affects such person’s decision making abilities. An Enduring Guardian can make decisions relating to the other person’s lifestyle and medical treatment.
Appointment of an Enduring Guardian is a part of the long term future planning which gives a person an option of choosing someone to take decision on his/her behalf. This is specifically done to avoid a situation where in such person has become too old or mentally incapacitated to take decisions for their own benefits.
The appointment of an Enduring Guardian is different from general Guardianship as during the time of the appointment Enduring Guardian, the person making the decision is fully aware and has the capacity to make his own decisions.
An appointment of an Enduring Guardian takes effect when the person for whom the Guardian is being appointed, is no longer able to take any decision and is considered as a ‘person in need of a Guardian’. As per the Guardianship Act, 1987 (New South Wales), such a person is classified under Section 6A.
An Enduring Guardian’s primary responsibility is to make lifestyle and medical decisions on behalf of the other person. However, in case that person has recorded any specific guidance or Advance Care Directives (ACDs), then the Enduring Guardian is under a duty to duly regard that.
In Australia, every State and Territory has a Guardianship Board or Tribunal, which has the authority to appoint a Guardian for adults who are incapable of making decisions on their own. In case it is not feasible to appoint a private Guardian, the Board or Tribunal may appoint a public Guardian, who is usually a statutory official. In case of appointment of a Guardian, the other person’s best interests are considered to be of primary importance.
There are certain procedural requirements to be completed under various State and Territory wise legislations which mandate the filing up of appropriate forms. There is also a requirement of witnesses to be present to classify the appointment of an Enduring Guardian to be valid and proper. The appointment must be made in writing and both the persons, the one intending to appoint an Enduring Guardian and the one intended to be appointed as an Enduring Guardian, must sign the form in front of a designated legal authority. The different State and Territory Guardianship legislations also generally recognise interstate appointment of Enduring Guardians.
Generally, the copy of the Appointment Letter should be preserved along with your Will and copies should be provided to your Medical Practitioner, Solicitor and other people related to your life and estate. A revocation of the appointment may be carried out within the time the person has the proper capacity. It must be in writing, and should be witnessed by a Legal Practitioner or Registrar of the Local Court. The Notice of Revocation should be provided to the person previously appointed as the Enduring Guardian.
A person appointed as an Enduring Guardian may also decide to resign from his post and may do so by submitting a written Letter of Resignation to the person who has appointed him, in case he is still capable to take decisions on his own. In case the other person is mentally incapacitated, the approval of the Guardianship Tribunal is needed for resigning.
We at Owen Hodge Lawyers can guide you in every aspect of appointing an Enduring Guardian for your benefit and can help you in handling the legal procedures better. Please feel free to contact us in case of any help required in this issue.