Appointing an Enduring Guardian – what to look out for

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The future is not a known quantity, so it’s far better to plan ahead while you still have the capacity to do so.

 Most people are reasonably knowledgeable about Wills and Powers of Attorney. It’s when we stray into the area of Enduring Guardians and Advanced Care Directives that things start to get a little shaky, so let’s dig further into the former, with a side-mention of the latter.

The first point to grasp is that you can only appoint an Enduring Guardian while you are in a competent mental, emotional, and physical state to do so. If taking this action is put off for too long, it is possible that some unforeseen event such as a stroke might mean that it can no longer be done.

 An Enduring Guardian is a person appointed to make decisions in the areas of:

  •         Health – what medical treatment is received
  •         Lifestyle – what types of personal services are received
  •         Living – the location and type of dwelling you live in

 The responsibility begins when the person, the appointor, becomes unable to make such decisions, and the Guardian may be directed to seek advice from certain medical professionals to assess whether that time has come.

The appointor can specify directions and limits, but care must be taken lest the role is made unworkable.

It is not possible for an Enduring Guardian to make any decisions about finances, voting habits, marriage, or unlawful activities, or to contradict or change the intentions of any Advanced Care Directive or Will.

Therefore, it is vital that someone appointed as Enduring Guardian is fully aware of such documents and their contents, as well as the specifics of the Enduring Guardianship directions under which they are operating.

The Enduring Guardian duty ends:

  •         Upon the death of the appointor  – at which time the need for such decisions ceases and the executor of the Will steps into the role of administration of the person’s final wishes.
  •         When the Guardian dies, or no longer wishes, or is able, to fulfill the role.
  •         If still capable of so deciding, the appointor may revoke the appointment.
  •         If the Guardianship role is revoked by the NSW Civil and Administrative Tribunal (NCAT).

While NCAT has the administrative role for Guardianships, it does not involve itself unless called upon to do so. This may be if a third party has serious concerns about how a guardian is acting and wishes to have the situation investigated.

An Enduring Guardian may be a spouse, a family member, or a close friend, but should not be your doctor or accommodation provider.

It is worth noting that the act of marrying automatically revokes an Enduring Guardian appointment, the logic being that the new spouse will fulfill the role. However, it may be that individual circumstances indicate a desire to re-appoint a Guardian after the marriage.

You can appoint one or more Guardians, but where there is more than one you are required to nominate whether they are to act jointly or severally whereby effectively, either may decide or all must agree and decide.

Enduring Guardianship is an onerous duty and careful consideration of the candidate is vital. Equally, the potential Guardian should give serious thought to acceptance of the role. Quality advice from the professionals at Owen Hodge Lawyers will be time well spent.

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