What is an Enduring Guardian?

Alongside a power of attorney and a will, an appointment of enduring guardianship is the most common estate planning document that people put in place in New South Wales. It is used to delegate decision-making power for a person’s medical and lifestyle decisions.

This means that an appointment of enduring guardianship will set out who decides what happens to a person if the appointor loses capacity to make this decision for themselves.

If a person does not have an appointment of enduring guardianship in place, it is likely that a guardianship order will be needed to be obtained from the NSW Civil and Administrative Tribunal (NCAT). With NCAT applications on the rise each year, it is a stark reminder of the need to proactively get your affairs in order.

What is an enduring guardian?

An appointment of enduring guardianship is a crucial part of any effective estate plan. This document allows a person to give out to another person(s) the power to make decisions about their health, housing and lifestyle.

The types of decisions involve:

• Making decisions about the appointor’s living arrangements;
• Making decisions about the appointor’s medical treatment;
• Making decisions about personal services received by the appointor; and
• Consenting to medical treatment on the appointor’s behalf.

In New South Wales, appointments of enduring guardianships are subject to the Guardianship Act 1987 (NSW).

An appointment of enduring guardianship is a simple and easy document to put into place, though legal advice and assistance is nonetheless typically required. Your lawyer will need to have a comprehensive discussion with you about your personal circumstances and your wishes so as to ensure that you have the capacity to make an appointment of enduring guardianship. This document has extensive and serious powers, so you must be able to understand the implications of what you are doing.

Can an enduring guardian refuse treatment?

Yes. Provided that an appointor cannot make decisions for themselves, a guardian can refuse treatment should they believe that it is not in the best interests of the appointor.

This decision will be made in conjunction with any advanced care directive that the appointor previously made.

The appointor may have also included a clause within the document itself which reflects a wish that they do not want to be kept alive artificially, should they have no reasonable prospects of recovery.

Who can I appoint as an enduring guardian?

You can appoint any person who is over the age of 18 years; though, the appointed guardian must have decision-making capacity themselves in order to act on your behalf. Given the seriousness of the role, it is important to choose someone you trust to ensure your best interests are properly protected.

In some circumstances, a person may appoint the NSW Trustee & Guardian as their guardian, although this is generally reserved for where there are no other suitable persons.

How many enduring guardians can you have?

You can have as many guardians as you like; however, naturally, giving too many people the authority to make decisions could lead to tension, deadlocks, and no actual decision being made.

You can have:

• Guardians appointed together;
• Guardians appointed in a hierarchy e.g. primary, alternate, second alternate and so on; or
• Both.

Any guardians appointed together will need to be given either a joint appointment (where they must act together) or a joint and several appointment (where they can act independently of the other guardian(s)).

Seeking legal advice about these options and your personal circumstances is always recommended.

How do I appoint an enduring guardian in NSW?

A lawyer will need various pieces of information, including:

• Your full name;
• Your address;
• The full names of any guardian(s) as well as their addresses; and
• An understanding of your wishes.

A lawyer will typically also take a photocopy of your photo ID to keep on file.

There are nuances to getting an appointment of enduring guardianship in place. For example, you will need to decide between a joint, or joint and several appointment, if you have multiple guardians. You will also need to decide whether you want to express any wishes within the document about end-of-life care.

Once you have validly executed your appointment of enduring guardianship, your guardian(s) will need to also sign to accept their appointments under the documents.

Do I need an enduring guardian if married?

Yes, you do still need an enduring guardian if you are married.

There is no automatic right given to your spouse to make decisions about your health and lifestyle affairs by virtue of marriage. Although a medical practitioner may nonetheless take instructions from your spouse, they are under no legal obligation to do so.

Having a guardian validly appointed will remove any doubt or uncertainty about who is allowed to make decisions about your health and lifestyle decisions.

What happens if I don’t have an enduring guardian?

If you don’t have an enduring guardian and decisions need to be made about your health and lifestyle affairs, persons close to you, or perhaps your medical practitioner or an aged care home, will need to make an application to the NSW Civil and Administrative Tribunal.

This can be a very stressful, exhausting, and slow process, which is compounded by the fact that important decisions about your health and lifestyle remain unmade.

How do I revoke an enduring guardian?

Revoking an enduring guardian is a relatively simple process. You can revoke an enduring guardian if you change your mind at any point up until you lose the mental capacity to make this decision yourself.

The process occurs through executing a ‘Revocation’ document itself, which must be signed and served on any guardian(s) appointed under the document. This is particularly important where the guardian(s) have signed to accept their appointment and been given a certified copy of the appointment of enduring guardianship. Unless they are served with a signed Revocation, the Revocation is unlikely to be valid and the guardian may still be able to use the appointment of enduring guardianship document. Seeking legal advice is always recommended.

Contact Turnbull Hill Lawyers

The loss of capacity to make your own medical decisions is a frightening prospect, but unfortunately one which becomes a reality for many. Having a valid appointment of enduring guardian document in place can safely ensure that your health and interests are protected and that only your trusted loved ones are making decisions about you.

Expert legal advice can help to ensure that the document is as watertight as possible. If you want to get an appointment of enduring guardianship in NSW, make an appointment with one of the experts in the Wills and Estates team at Turnbull Hill Lawyers.