Appointment of Enduring Guardian

What is an enduring guardian?

An enduring guardian is someone you appoint, at a time when you have capacity, to make personal, health or lifestyle decisions on your behalf should you lose the capacity to make them for yourself.  The appointment of an enduring guardian takes effect only if you lose the capacity to make your own decisions.  You can appoint more than one enduring guardian if you wish. 

You might consider appointing an enduring guardian if you want to specify that a particular person, for example, a particular friend or relative, has authority to make decisions for you.  

What sort of decisions can an enduring guardian make? 

You choose which decision-making areas you want your enduring guardian to have. These are called functions.  You can give your enduring guardian as many or as few functions as you like.  For example, you can authorise your enduring guardian to decide such things as where you may need to live or what medical treatment you should receive. 

You may give the enduring guardian directions about how to exercise the decision-making functions you give them.  You cannot give your enduring guardian the authority to override your objection to medical treatment.  Only the Guardianship Division of the NSW Civil & Administrative Tribunal can do this. 

Your enduring guardian must act within the principles of the Guardianship Act, in your best interests and within the law.  You cannot give your guardian a function or a direction that would involve them in an unlawful act, such as euthanasia. 

What sort of decisions is an enduring guardian unable to make? 

An enduring guardian cannot make a will for you, vote on your behalf, consent to marriage, manage your finances or override your objections, if any, to medical treatment.  He/she cannot consent to treatments that are defined as “special” medical treatments, for example, treatments such as new or experimental treatments.  Only the Guardianship Division can consent to special medical treatments. 

Who can appoint an enduring guardian? 

If you are 18 years or over, you can appoint one or more people to be your enduring guardian.  When you appoint an enduring guardian you must have the capacity to understand what you are doing.  

Who can be an enduring guardian? 

The person you appoint as your enduring guardian must be 18 years or over.  He or she should be someone you trust to make decisions in your best interests should you not be able to make these decisions for yourself. 

He or she cannot be a person providing services to you on a professional or paid basis at the time of appointment.  However, this does not exclude a person receiving a Carers Allowance.  

In deciding who to appoint, it is worth considering the willingness and availability of the person to take on the role, as well as their age and health.  You can appoint more than one enduring guardian and you can appoint them in a number of ways.  This is set out below.

Appointing more than one enduring guardian

It is possible to appoint more than one enduring guardian. There are now a number of ways that this can be done. You can appoint enduring guardians to act jointly (the enduring guardians must agree on all decisions), severally (each enduring guardian can make decisions separately from the others), or jointly and severally (the enduring guardians can act together or separately). 

Enduring guardians appointed jointly

This means that the enduring guardians are appointed with the same decision-making functions. In making decisions they must agree and act together. You can choose to have the remaining joint enduring guardian(s) continue even though one or more of the others die, resign or become incapacitated. 

Enduring guardians appointed severally

A number of enduring guardians can be appointed severally. This means that the enduring guardians appointed have the same decision-making functions with the intention that they are able to make decisions independently of each other. The death, resignation or incapacity of one of the enduring guardians does not automatically terminate the appointment of the other enduring guardians. 

Enduring guardians appointed separately

A number of enduring guardians can be appointed separately. This means that the enduring guardians have different decision-making functions. This may be best done using separate forms for each enduring guardian appointed. 

Alternative enduring guardian

It is now possible to appoint an alternative enduring guardian. The alternative enduring guardian steps in as enduring guardian, only if an original enduring guardian or all of the joint enduring guardians die, resign, or become incapacitated. 

Revocation on marriage

The appointment of an enduring guardian is automatically revoked if the appointer marries after the date on which the enduring guardian was appointed. 

Resignation of enduring guardians

It is now possible for an enduring guardian to resign his or her appointment. There is a form of resignation. If the appointer still has capacity, then the enduring guardian can resign by giving the appointer written notice. If the appointer has lost capacity, then the enduring guardian can only resign with the approval of the Guardianship Tribunal.

How do I appoint an enduring guardian?

Step 1:      

You need to discuss the appointment with your chosen enduring guardian and make sure they are willing to take on this responsibility if you were no longer capable of making decisions for yourself. You should discuss the functions in detail and ensure that your guardian clearly understands your wishes. 

Step 2:      

You may also wish to discuss the appointment with family or other significant people in your life. 

Step 3:      

You need to complete an Appointment of Enduring Guardianship form or a document containing the same information. The form has to be signed by:

a) You or an eligible signer on your behalf;

(b) The enduring guardian(s); and

(c) The witness for each signature.  

Who can be an eligible signer or witness?

If you are competent to make an enduring guardianship application but you are not able to sign the form, an eligible signer can sign for you. An eligible signer must be 18 years or over and cannot be the enduring guardian or a witness. You must be present when the eligible signer signs on your behalf.

A witness must be a NSW barrister, a NSW solicitor, a clerk of the Local Court, or an interstate legal practitioner. Every signature on the form must be witnessed. The different signatures can be witnessed by different people at different times and places. For example, your signature can be witnessed in NSW and the enduring guardian’s signature can be witnessed in another state.

What should I do with the appointment?

It is a good idea to keep the appointment form in a safe place. Tell someone else where it is. Give a copy to your enduring guardian. You may wish to give copies to significant people in your life (e.g. your doctor). 

When does it take effect?

The appointment of your enduring guardian takes effect only if you become unable to make your own personal or lifestyle decisions. Your enduring guardian may wish to seek the opinion of a medical practitioner about your capacity to make decisions before acting on your behalf. 

If there is any doubt about your capacity to make decisions, a medical practitioner may have to assess your capacity.

Can I change my mind?

While you are capable of making your own decisions, you can revoke the appointment of an enduring guardian. To do this you need to complete a Revocation of Appointment of Enduring Guardian form. This form will also need to be witnessed by an eligible witness. You have to advise the enduring guardian in writing that their appointment has been revoked. 

You can appoint a new person as your enduring guardian, or change the functions or directions given to your enduring guardian. You will need to complete a new form of appointment to achieve any of these things.

Only the Guardianship Division can make changes to the appointment if you have lost the capacity to do this for yourself.

What if someone is worried about what my enduring guardian is doing?

Anyone with a genuine concern for your welfare can apply to the Guardianship Division for a review of the appointment if they feel that your enduring guardian is not making appropriate decisions on your behalf. The Guardianship Division can revoke the appointment or confirm it. It may also change the functions in the appointment or make a guardianship order.

The Guardianship Division does not supervise enduring guardians. It will act only if it receives an application from a concerned person or receives information which leads it to review the enduring guardian appointment.

What happens if my enduring guardian cannot continue?

If the person you have appointed dies, resigns or becomes incapacitated, the Guardianship Division can, in limited circumstances, order another person to be appointed as enduring guardian on your behalf. Someone will need to lodge an application on your behalf.

When does enduring guardianship end?

Enduring guardianship ends when you die, or when you revoke the appointment. A joint enduring guardianship will also end if one of the guardians dies, resigns or becomes incapacitated, unless you provide otherwise in the form. An enduring guardianship appointment is suspended if the Guardianship Division makes a guardianship order. The Guardianship Division may revoke the appointment. 

For more information contact Katelin Turner on 9018 6414 kturner@rbhm.com.au