What is an Enduring Guardian?
An enduring guardian is someone you choose to make personal or lifestyle decisions for you 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 and someone you trust to make decision in your best interests.
The enduring guardian cannot be a person who, at the time of appointment:
What sort of decision 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 decision for you.
What decision can’t an enduring guardian make?
An enduring guardian cannot consent to anything unlawful and cannot:
If at the time decisions are made by your enduring guardian to which you strongly object, the matter can be brought to the Guardianship division of the NSW Civil and Administrative Tribunal.
An application must be made to the 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 1987, in your best interests and within the law. You cannot give your enduring guardian a function or a 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). When appointing more than one enduring guarding, you should choose people who can cooperate with each other and who you trust to work together in your best interests. It is also important to consider their availability to make decisions on your behalf.
What are joint and alternative Enduring Guardians?
You can appoint enduring guardians to act either:
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 dies, 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?
Step 1: You need to discuss the appointment with your chosen enduring guardian and make sure they are willing to take on this responsibility if you were no longer capable of make decisions for yourself. You should discuss the functions in detail and ensure that your guardian clearly understands your wishes.
Step 2: You may also wish to discuss the appointment with family or other significant people in your life.
Step 3: You need to complete the Appointment of Enduring Guardianship form and have it signed by:
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 an Australian legal practitioner, a Registrar of a NSW Local Court, an approved NSW Trustee and Guardian employee, or an approved Service NSW employee. 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.
Can an Enduring Guardianship appointment made interstate be used in NSW?
Yes, an enduring guardianship appointment made in another Australian state or territory is automatically recognized in NSW. However, enduring guardianship appointment made overseas is not recognized in NSW.
Can my NSW Enduring Guardianship appointment be used interstate or overseas?
Every state and country has different laws about recognizing an enduring guardian appointment in NSW. You will need to make enquiries in that state or country.
What should I do with the appointment form?
The appointment form should be kept 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 of 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 NSW Civil and Administrative 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 unless you marry the Enduring Guardian. 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 NSW Civil and Administrative 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 vary or revoke the appointment or confirm it without changes. 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 you have only appointed one person, or more than one person to act jointly, if one of the persons you have appointed dies, resigns or becomes incapacitated another enduring guardian will need to be appointed. However, if you are not capable of making this decision yourself, the NSW Civil and Administrative 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.
However, if you have appointed more than one enduring guardian to act severally (or jointly and severally) the appointment will continue with the remaining guardian.
When does an 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 is automatically revoked if you marry after appointing and enduring guardian, unless you marry the enduring guardian. Otherwise you will need to complete a new enduring guardianship form.
An enduring guardianship appointment is also suspended if the NSW Civil and Administrative Tribunal makes a guardianship order. The Tribunal may revoke the appointment.
