You can appoint an enduring guardian to make decisions on your behalf about your personal and lifestyle affairs.

The Guardianship Act allows people who are capable of making decisions for themselves to appoint an enduring guardian to make health, personal and lifestyle decisions. Property or financial issues are covered by an enduring power of attorney.  The appointment of the enduring guardian can only be made where you have the capacity to make such a decision. That means you  must understand the nature of the document when it is explained to you. The appointment only becomes operative if you lose the capacity by disability to make such a decision.

Your appointment of enduring guardian terminates on your death or if you marry or remarry after making the appointment.

What Can An Enduring Guardian Do?

You are able to nominate what your enduring guardian may make decisions about in the document.  These decisions are called “functions”.  The number or types of functions are nominated by you.  If you wish to appoint more than 1 guardian and give different functions to each guardian you may do so. Generally, your guardian makes decisions about your accommodation, medical care and services in the event you are no longer capable of doing so.

Who Should You Appoint?

Your enduring guardian needs to be at least 18 years old and a person you trust to make decisions about your health, lifestyle and welfare.  You will need to discuss the appointment with your guardian.  Your guardian will need to sign the form confirming that they consent to the appointment.  Your guardian can not be a person who provides you with your medical care i.e. your GP, someone who provides you with accommodation services, daily living services, or someone related to any of those people.

How Do You Make The Appointment?

A document signed by you, your guardian and a lawyer will put the appointment into place.

What Happens If I Don’t Have An Enduring Guardian?

The Guardianship Tribunal is a legal tribunal that makes, amongst other things, appointments of people to look after the interests of those with disabilities aged 16 years and over and those incapable of making their own decisions.  If the Tribunal finds no‑one is appropriate to be appointed, it may appoint the Public Guardian who will then manage your affairs.  The Guardianship Tribunal is also able to consent to medical and dental treatment in certain circumstances for people who are unable to consent for themselves.

If you lose capacity to make your own decisions and do not have an Enduring Guardian somebody will need to apply to the Guardianship Tribunal to be appointed your manager.

These notes are of a general nature and are not a substitute for proper legal advice. If you have any questions please contact our Estates and Property team on 1800 227 492.

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.

Enduring Guardianship

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.

Procedural Requirements

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.

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