Enduring guardianship lawyers in NSW

An enduring guardian is a person you appoint to make lifestyle, health and medical decisions for you if you become incapable of directing your own personal affairs.

A guardian has several important responsibilities, including:

• Safeguarding you from harm, including neglect, abuse, or exploitation.
• Engaging with you to consider your preferences and views to the extent your decision-making abilities permit.
• Acting as a strong advocate of your best interests.
• Supporting you in being actively involved in your community to the fullest extent possible.

Appointing an enduring guardian provides peace of mind that your wishes will be respected and that decisions about your well-being will be made by someone who understands your values and preferences.

Anyone over the age of eighteen years may be appointed as an enduring guardian. Preferably it will be a spouse, child, near relative or other significant person in your life whom you trust absolutely.

You should appoint an enduring guardian as soon as possible, while you still have the legal capacity to understand the document and what you’re doing by signing it.

When a person can no longer manage essential decisions about their health, living arrangements, or daily care, and (usually) didn't appoint an enduring guardian before they lost capacity, the New South Wales Civil and Administrative Tribunal (NCAT) may issue a guardianship order. This legal directive appoints a trusted individual or organisation to step in and make decisions that prioritise the person’s well-being and dignity.

A guardianship order can authorise the appointed guardian to:

• Decide on the most appropriate accommodation to ensure safety and comfort.
• Approve or refuse medical treatments, including making decisions about withdrawing treatment if necessary.
• Enrol the individual in programs and activities that support their personal and social needs.

This order serves as a safeguard, ensuring that those who are unable to advocate for themselves are supported by a dedicated and responsible decision-maker.

An enduring guardian is permitted to make important personal decisions, such as where you live, which doctor you see, and what other services you receive. They can also give consent to medical and dental procedures, and direct any other lifestyle factor you outline in your nomination.

Importantly, an enduring guardian is not authorised to manage your finances or deal with your property.

To appoint an enduring guardian, you will need to complete a legally binding document that specifies who you want to act as your guardian.

We can assist by preparing the necessary paperwork, explaining the process, and ensuring that you and your chosen guardian sign it correctly. It’s important to do this while you still have the mental capacity to make such decisions.

Once completed, we offer to securely store the original document alongside your will and power of attorney at no charge. A copy will also be provided for your personal records. This ensures your wishes are easily accessible when needed.

When you become incapable of making your own decisions.

An enduring guardianship ends when you die, you revoke it or it is terminated by the New South Wales Civil and Administrative Tribunal.

The New South Wales Civil and Administrative Tribunal (NCAT) is the body responsible for handling disputes and reviews in a wide range of legal areas, including guardianship matters.

The NCAT plays a crucial role in resolving issues related to the care and decision-making of individuals who lack capacity, ensuring that choices are made fairly and in the best interests of the person concerned.

For guardianship cases, NCAT can:

• Appoint guardians or financial managers for individuals unable to make decisions for themselves.
• Review or revoke existing guardianship or financial management orders.
• Handle appeals concerning decisions made by the NSW Trustee and Guardian or the Public Guardian.

If you need assistance with guardianship matters, our enduring guardian lawyers can guide you through the process, represent you at NCAT, and provide expert advice tailored to your situation.

Yes. You can appeal a guardianship order by applying for review with the NCAT.

The most common reason for an appeal is a concern about procedural fairness. For instance, if you believe you were not given a proper chance to present your case or share your perspective with the Guardianship Tribunal, you may appeal the decision through NCAT.

NCAT also has the authority to review decisions made by the NSW Trustee and Guardian (NSWTG) and the Public Guardian (PG). For example, you might challenge a decision to sell a family home to cover aged care expenses.

This process ensures that decisions affecting a person’s welfare can be reconsidered if you believe they are unfair or inappropriate.

You have 28 days from the date you receive the written reasons for the decision to lodge an appeal. In some cases, this time limit may be extended, but you will need to provide valid reasons for requesting an extension.

During the appeal process at the NCAT, you are entitled to seek legal representation. A lawyer can assist you in preparing your case, ensuring your arguments are presented clearly, and advocating on your behalf throughout the proceedings.

Yes, you can change your mind after appointing an enduring guardian in New South Wales, as long as you can still understand the nature and implications of your decision.

There are a few ways you can rescind this nomination:

• Revoke the appointment: You can formally revoke your enduring guardian's authority by completing a Revocation of Enduring Guardian form. This must be signed in the presence of an eligible witness, such as a solicitor or a registrar of the local court, who can confirm your understanding of the decision.
• Make a new appointment: If you want to replace your current enduring guardian with a new one, you can create a new enduring guardian appointment document. Doing so will automatically revoke the previous appointment, though you will also need to complete a revocation of enduring guardian form.

Importantly, you must notify your current enduring guardian in writing about the revocation. If you don't, they may continue acting in their role under the assumption that their authority is still valid.

As revoking such appointments is a significant decision, we strongly recommend seeking legal advice to ensure the process is handled correctly.

While a power of attorney lets your attorney manage your finances or property, it cannot authorise someone else to make personal or lifestyle decisions for you. For example, an attorney cannot authorise medical treatment or give consent to any medical procedures.

Yes. A power of attorney and appointment of an enduring guardian complement each other. In this way, people chosen by you can manage both your financial/property and personal/lifestyle affairs.

The cost of appointing an enduring guardian through a lawyer in Australia varies depending on your specific needs and legal requirements.

At Turnbull Hill Lawyers, we offer a free initial phone consultation to discuss your situation. During this call, we’ll ask a few key questions to better understand your circumstances and what’s involved.

Based on this discussion, we’ll provide you with a detailed, personalised estimate so you have a clear understanding of the costs upfront.