An enduring guardian is someone you appoint to make lifestyle, health and medical decisions for you when you are not capable of doing this for yourself. Your enduring guardian may make decisions such as where you live, what services are provided to you at home and what medical treatment you receive.
What will happen if I haven’t made an enduring guardian?
If you do not have an enduring guardianship document and you lose capacity to make personal and lifestyle decisions, a guardian may be appointed by a Tribunal.
The appointed guardian might be a member of your family, a friend, or an independent guardian from a Government Department.
“The Tribunal may appoint an independent Government guardian even if family members are willing and able to act, especially if there is conflict within the family. You should avoid this outcome.”
How do I make an enduring guardian?
Make sure the person you chose to be your guardian is willing to take on this responsibility. Explain to them their role, so that they understand your wishes and any conditions associated with any function.
You may appoint a number of people jointly or severally to be your guardian. This means they all have the same functions or decision making. In making decisions on your behalf they must always agree and act together if jointly appointed. If appointed severally, each guardian can make decisions without needing to agree and act together.
You may also appoint an alternative guardian, where they only have authority to act if the original guardian dies, resigns or becomes incapacitated.
You can give your guardian directions about how to exercise the decision-making functions that you give them e.g. for them to consult with a specific family member when making a decision.
You can also set limits to your enduring guardian on the form by crossing out some of the functions that you do not wish them to have. Further your guardian cannot consent to medical or dental treatment on your behalf when you object to that treatment.
If you wish to appoint an enduring guardian, you must sign a legal form of appointment. The person or people you appoint need to sign the same form in front of an eligible witness to show they understand their role. Only a solicitor, Registrar of the Local Court, overseas legal practitioner, or approved officer from NSW Trustee & Guardian may witness the signatures. The witness cannot be the same person you appoint as your enduring guardian.
Anyone over 18 can make a power of attorney so long as they have mental capacity.
You can keep your enduring guardian form in a safety deposit box in a bank or in a safe place at home. Ensure you keep a copy and give a certified copy to your guardian. Your guardian should know where to find the original form as they need to produce evidence of the appointment.