Enduring Guardianship

An Introduction

The appointment of an enduring guardian is a document that appoints and authorises a person, the guardian, to act on behalf of another person, the donor.  The enduring guardian is appointed to make personal and lifestyle decisions on behalf of the donor should the donor lose the capacity to make those decisions themselves.  The decision-making areas (called "functions") are:

• Where you live.

• What health care you receive.

• What services you should have.

• To give or withhold consent to medical and dental treatment on behalf of the donor.

This does not mean that the donor has to give the enduring guardian all of these functions.  The donor can delete any function that they do not wish to give to the enduring guardian.  They can also add other functions if they wish.

It is also possible to give directions about how to exercise the particular function, for example to continue to receive medical services from your current general practitioner. 

The appointment of your enduring guardian takes effect only if you lose the capacity to make your own personal or lifestyle decisions.

The aim of the enduring guardian is to consider your thoughts and opinions, the views of professionals and other people important in your life, to take into account the circumstances and then make decisions on your behalf.  If you are over 18 and have the necessary legal capacity then you can appoint an enduring guardian.  You must be able to understand the nature and effect of the documents you are signing.  You can revoke the appointment and make another appointment at any time, provided you continue to have capacity.

When deciding upon a guardian, it cannot be someone who is involved in a professional or administrative way in providing medical treatment to you, such as your doctor, community nurse, etc.  You must consider whether or not the person would be willing to take on the role, their availability and their age and health.

You can also appoint more than one enduring guardian if you wish.  However, you generally should limit possible conflict between the guardians if you appoint more than one.

You cannot appoint your enduring guardian to make any decisions that are contrary to the law.  For example, euthanasia is illegal in all states and territories of Australia.

Enduring guardianship ends when you die.  It may also end if it is revoked by the person who made the appointment, the Guardianship Tribunal or the Supreme Court. 

Martin Bullock Lawyers provides Appointments of Enduring Guardianship to their clients very quickly and at reasonable rates.  We recommend a guardian be appointed if you have any fears that you will not be able to make your own lifestyle decisions because of accident, illness or mental capacity.

Planning ahead - enduring guardianship

We all prefer to decide for ourselves where we live and what medical treatment and services we have.  Unfortunately, this is not always possible.  Every day people are involved in accidents or become sick.  Sometimes this can lead to them being unable to make decisions for themselves.

Under the Guardianship Act, you can appoint an enduring guardian to make decisions for you if you lose the capacity to do this for yourself.

What is an enduring guardian?

An enduring guardian is someone you choose to make personal or lifestyle decisions on your behalf when you are not capable of doing this for yourself.  You choose which decisions you want your enduring guardian to make.  These are called functions.  You can direct your enduring guardian on how to carry out the functions.

Who can appoint an enduring guardian?

If you are over 18 years, you can appoint one or more people to be your enduring guardian.  At the time 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:

• At least 18 years old

• Someone you trust to make decisions in your best interests.

The appointed enduring guardian cannot be a person who, at the time of appointment:

• Provides medical treatment or care to you on a professional basis; or

• Provides accommodation services or support services for daily living on a professional basis; or

• Is a relative of one of the above.

What sort of decisions can an enduring guardian make?

You can give your enduring guardian as many or as few functions as you like.  You can delete the functions you do not want your enduring guardian to have and add others if you wish.  For example, you can give them the power to decide on your health care but not where you live.

You may give the enduring guardian directions about how to exercise the decision-making functions you give them.  For example, you can direct your enduring guardian to consult with a particular close friend before making a decision.

If your enduring guardian has a health care function, they will be able to see your medical records to help make decisions for you.

What decisions can't an enduring guardian make?

An enduring guardian cannot consent to anything lawful and cannot:

• make a will for you;

• vote on your behalf;

• manage your finances; or

• override your objections, if any, to medical treatment.

If at the time decisions are made by your enduring guardian to which you strongly object, the matter can be brought to the Guardianship Tribunal.

An application must be made to the Guardianship Tribunal to authorise medical treatment overriding your objections.  Also, only the Tribunal can consent to certain ‘special' medical treatments.

What principles guide an enduring guardian?

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

How many guardians can I appoint?

You can appoint one or more persons as enduring guardian.  If you appoint more than one enduring guardian, you can direct them to act jointly or separately (severally).

What are joint and alternative enduring guardians?

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).

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.  The Appointment of Enduring Guardianship form provides an option to allow for this in Section 1c.  If you do not choose this option, the enduring guardianship will end automatically when one of the joint enduring guardians die, resigns or becomes incapacitated.

You can also appoint an alternative enduring guardian who can act only if the original enduring guardian(s) dies, resigns or becomes incapacitated.

How do I appoint an enduring guardian?

You need to discuss the appointment with your chosen enduring guardian and make sure they are willing to take on this opportunity 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.

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

You need to contact Martin Bullock Lawyers to complete the form.  The form has to be signed by you or an eligible signer on your behalf, the enduring guardian(s) and 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 over 18 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 (eg 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 Tribunal can make changes to the appointment if you have lost the capacity to do this for yourself.

What happens if I get married?

If you marry after appointing an enduring guardian, the appointment is automatically revoked or cancelled.  If you wish to reappoint the enduring guardian, you need to complete a new application form reappointing the person.

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 Tribunal for a review of the appointment if they feel that your enduring guardian is not making appropriate decisions on your behalf.  The Tribunal can revoke the appointment or confirm it.  It may also change the functions in the appointment or make a guardianship order.

The Tribunal 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 Tribunal 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 my enduring guardianship end?

Enduring guardianships end 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 Tribunal makes a guardianship order.  The Tribunal may revoke the appointment.

Where can I get legal assistance?

Martin Bullock Lawyers can draw up all of the necessary forms for the appointment of an enduring guardian, and answer any of your further questions, for a very reasonable fee.

Living Wills

'Living Wills' legislation exists in three jurisdictions.  If a person in South Australia, the Northern Territory or Victoria wants to make a direction about medical treatment, he or she should be directed to the legislation in the relevant jurisdiction to ensure that the specific requirements are met.

For those persons in New South Wales who wish to give guidance to medial practitioners and family concerning the types of medical treatment they do not want, as well as for persons in those jurisdictions who want to go beyond the limits of the legislation, Martin Bullock Lawyers have developed a special form.  This form will NOT have binding effect, but will serve as a guide only for hospital, medical practitioners and family.  The form is adapted from the form used by the US Society for the Right to Die.  The Society for the Right to Die form takes the shape of a card kept in the wallet.  On one side of the form the name and address of the maker appear; on the other the text of the form appears.

We also have a more developed form of a living Will and advice, which we have adopted from the New South Wales Voluntary Euthanasia Society.  Again we can provide you with assistance with this if you wish.

Enduring Powers of Attorney and Living Wills

Enduring power of attorney legislation in New South Wales contains forms which allow the donor of the power to exercise some control over the level of medical treatment to be given (and hence to degree of prolongation of life).  These forms should be used in preference to the Living Will form we offer.

There is a general value in enduring powers of attorney which allows the donor to appoint an attorney to manage her or his property and/or personal affairs even after the donor has lost capacity.  Again, we have client kits which can assist you with this if you so wish.