APPOINTING AN ENDURING GUARDIAN
What is the role of an Enduring Guardian?
There may be a time in your life when you need someone to make important decisions for you. This could be due to a temporary or permanent loss of decision-making ability from illness, injury or disability – this can happen at any time in your life.
Your Enduring Guardian only starts making decisions for you when you are unable to.
A doctor or specialist can be called upon if it is uncertain whether your Enduring Guardian should start making decisions. The appointment continues for as long as you need it unless:
you revoke or cancel it while you have mental capacity to do so
your Enduring Guardian resigns from the role, dies or is unable to carry out the role
the appointment is changed or revoked by the Guardianship Division of NSW Civil and Administrative Tribunal (NCAT) or the NSW Supreme Court.
You can provide information to help your Enduring Guardian know how they should use their authority. For example, you might direct them to seek advice from your doctor or medical specialists before they make certain decisions.
It’s important to remember that directions or limits should be applied thoughtfully as they can remove flexibility in decision making.
What kinds of decisions can be made by an Enduring Guardian?
Your Enduring Guardian only makes decisions in the areas you outline, these might include:
where you live and the services you might receive
healthcare, medical and dental treatment you receive.
They can also:
apply for extra decision-making authority if circumstances are more complex or you need extra support
consult on decisions during your end-of-life stage and advance care plans.
They cannot make decisions about:
who you vote for
marriage on your behalf
anything that is against the law
saying ‘yes’ or ‘no’ to special treatments, such as those that will prevent you having children, terminating a pregnancy, restrictive practices or new treatments that have not yet been reviewed by medical industry experts.
making or changing your advance care directive and making or changing your Will.
Can an Enduring Guardian make financial decisions on my behalf?
No. To make financial decisions on your behalf, you can appoint someone under an Enduring Power of Attorney. This can be the same person as your Enduring Guardian.
Who should I appoint as my Enduring Guardian?
They should be someone you trust such as a spouse, family member or friend.
If you do not have an Enduring Guardian and decisions need to be made on your behalf, a court or tribunal may need to appoint someone to make decisions for you.
It is essential the person you appoint:
is willing to take on the role
can make decisions in difficult and emotional circumstances
understands your needs, wishes, values and beliefs
is easy to contact when decisions need to be made
understands they won’t be paid to undertake this role.
You cannot appoint a person like your doctor or assisted living facility provider to be your Enduring Guardian unless they are your carer and are receiving the Centrelink Carer’s Allowance.
You cannot appoint the Public Guardian as your Enduring Guardian.
Types of Enduring Guardians
You can appoint just one person to be your enduring guardian, but its always good to have a backup in case your enduring guardian isn’t in a position to take on the role, or to continue in the role.
If you are appointing more than one guardian, there are two ways you can do this – by appointing multiple enduring guardians or by appointing a substitute enduring guardian, in addition to your first appointed enduring guardian.
Multiple Enduring Guardians
You can appoint more than one Enduring Guardian, but you need to outline how you want them each to make decisions – together (jointly), separately (severally) or both of these (jointly and severally).
Joint Guardians have the same decision-making areas and need to agree and act together when making decisions.
Make sure you have considered how you want your Enduring Guardians to make decisions if one is unable to carry out the role.
Separate Guardians can work separately with the same or different decision-making areas. They can make decisions without needing to agree or act together.
Joint and several Guardians have the same decision-making areas but each can make a decision separate to any other joint and several guardian.
Substitute Enduring Guardian
You can appoint another person as a substitute Enduring Guardian who only makes decisions for you if your original guardian is no longer able to.
If you have not appointed a substitute, you no longer have capacity and your Enduring Guardian is no longer able to make decisions for you, anyone concerned for your welfare can make an application to NCAT to decide who your guardian should be.
When you are ready to appoint your Guardian,
or if you want to discuss the matter further with us, please contact us
and make an appointment at your convenience.