Appointing an Enduring Guardian
As old age approaches, you may want to start thinking about what will happen when you can no longer make certain decisions for yourself, such as where to live or aspects of your medical care. You may not want to burden your children with these decisions, or perhaps you don’t have children living close enough to them. A sensible way that the law allows for is to appoint one or more Enduring Guardians of your choice.
What are the duties of an Enduring Guardian?
The main duties are to make decisions about your living arrangements and health care when you are unable to do so due to old age or illness.
Is an Enduring Guardian the same as an Enduring Power of Attorney?
No. A power of attorney gives someone else the right to handle some, or all, of your financial affairs. An Enduring Guardian may not handle your money.
What powers does an Enduring Guardian have?
An Enduring Guardian may:
An Enduring Guardian may not:
|Make decisions about your health, for example, if you need a carer.||Handle your financial affairs. If you have given power of attorney to someone else, and the Enduring Guardian needs access to those funds for example for your care, he or she will have to approach your Enduring Power of Attorney.|
|Make decisions about where you live, for example, if you can no longer function on your own and need to be in a care facility.||Make any decision on your behalf that is against the law, such as assisted suicide.|
|Give consent for your medical or dental issues, for example, if you need an operation, unless you object.||Make medical or dental decisions for you if you object, or decisions about special medical treatment.|
|Be involved when you make a will or change your will.|
How do I appoint an Enduring Guardian?
Here is a step-by-step process for appointing an Enduring Guardian (or more than one).
- Carefully consider who would be appropriate. It must be someone you trust to act in your best interests.
- Ask the person if they would be your Enduring Guardian, explaining the duties of the role. Discuss your wishes for when you become incapacitated with the person, for example, if you have any preferences regarding an old age home. We recommend you get the help of a solicitor / lawyer so everyone is clear about what the appointment means.
- You and your Enduring Guardian must then fill out and sign the form. Make sure your signatures are witnessed by a lawyer, the Registrar of the Local Court, or an approved officer from NSW Trustee & Guardian.
- You need to get certified copies of the form from any person qualified to certify the document, such as a JP (Justice of the Peace).
- Keep your signed form in a safe place as this is a legal document. You may want to give it to your lawyer for safekeeping. There is no need to lodge it with any state office.
When does the Enduring Guardianship start?
It starts when you can no longer look after yourself. When this is, will be up to your Enduring Guardian to decide. That is why you need to choose someone who you feel certain will look after your best interests.
Can I change my mind and end the Enduring Guardianship?
Yes. As long as you have capacity, you may cancel the appointment, by filling out a cancellation form. Don’t forget to have it witnessed by an eligible person, and give a copy to the person whose Enduring Guardianship you are cancelling.
If you no longer have capacity and a person who has an interest in you feels that the Enduring Guardian is abusing the appointment in some way and wants to have it cancelled, that person can:
- apply to the relevant state Guardianship Division of the Civil and Administrative Tribunal (for example NCAT) to review the appointment, or
- lodge an application in the Supreme Court.
If you marry after making the appointment, the Enduring Guardianship appointment is automatically cancelled.
An Enduring Guardian may resign by filling in a notice of resignation as Enduring Guardian form.