Enduring Guardianship

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Enduring guardianship is a part of the long term future planning, which gives a person an option of choosing someone to make decisions on his/her behalf. This is specifically done to avoid a situation where such a person has become too old or mentally incapacitated to take decisions for their own benefits.

You can appoint an enduring guardian to make decisions on your behalf about your personal and lifestyle affairs. This can be done during the estate planning process or on its own.

Read on to learn more about enduring power of guardianship, or speak to one of our Wills and estate lawyers.

two women discussing Enduring Guardianship

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. 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.

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.

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Do you need guardianship if you have power of attorney?

Property or financial issues are covered by an enduring power of attorney; whereas the lifestyle, health and welfare decisions are covered by the enduring guardian. So it is beneficial to have both.

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.

Can an enduring guardian make financial decisions?

No, you need a power of attorney to make financial decisions on your behalf. However, the power of attorney can be the same person as your enduring guardian.

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.
  • Needs to sign the form confirming that they consent to the appointment.
  • Can not be a person who provides you with services, i.e. your GP.

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. 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.

What is the difference between guardianship and enduring guardianship?

Generally, a guardian is a person who has the authority to make decisions relating to a minor’s personal and lifestyle issues in case they are incapacitated or suffer from any other kind of disability. Generally, a minor, upon gaining the age of majority, can make his/her own decisions and there is no further need for a legal guardian (Australia).

In Australia, an enduring guardian is a person who makes important decisions on behalf of someone over the age of 16 who  suffers from a disability or incapacity. An enduring guardian can make decisions relating to the other person’s lifestyle and medical treatment.

How to appoint an enduring guardian

There are certain procedural requirements that need to be met in each State and Territory. However, for an enduring guardianship to be valid, it needs the following:

  • The appointment must be made in writing and both the parties must sign the form in front of a designated legal authority.
  • Witnesses to be present.

A person appointed as an enduring guardian may also decide to resign from his/her post and may do so by submitting a written Letter of Resignation to the person who has appointed him/her, in case he/she is still capable of making decisions on his/her 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 power of guardianship and power of attorney. Please contact our Wills and guardianship lawyers on 1800 770 780.

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