Appointment of Enduring Guardian
An Appointment of Enduring Guardian is a legal document in which an individual (the appointor) nominates one or more persons (enduring guardians) to make personal, health, and lifestyle decisions on their behalf in the event that they lose capacity to make those decisions for themselves. This appointment only comes into effect if and when the person is deemed to have lost the ability to make their own decisions, ensuring their wishes and wellbeing continue to be respected.
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Appointment of Enduring Guardian: Considerations
Timing and Capacity:
The appointor must have decision-making capacity at the time of making the appointment. Once they lose capacity, they cannot create or amend the appointment.
Scope of Authority:
The enduring guardian’s powers may include decisions about healthcare, accommodation, and consent to medical and dental treatments—but cannot include financial matters.
Choice of Guardian:
Choosing someone trustworthy and capable is essential. The person appointed should understand the role, be willing to act, and make decisions in the best interest of the appointor.
Overview
In New South Wales, the Appointment of Enduring Guardian is governed by the Guardianship Act 1987 (NSW). Other states and territories have their respective legislation, such as the Powers of Attorney Act 2014 (Vic) and the Guardianship and Administration Act 2000 (Qld). These laws outline the requirements for valid appointments, the scope of powers, and processes for review or revocation. The appointment must be made in writing, signed by the appointor in the presence of an eligible witness, and accepted by the appointed guardian(s).
How We Can Help
At Our Lawyers, we guide clients through every step of the Appointment of Enduring Guardian process—from drafting the document to ensuring it is validly executed in accordance with state legislation. We provide personalised legal advice, help clarify the powers to be granted, and ensure your wishes are clearly recorded and legally protected. We also assist in reviewing or revoking existing appointments when circumstances change.
Appointment of Enduring Guardian: Common Scenarios
Progressive Illness and Loss of Capacity: An Enduring Guardian is often appointed when an individual is diagnosed with a progressive condition, such as dementia. As their ability to make informed personal or medical decisions diminishes over time, the appointed guardian is legally empowered to make choices in the person’s best interests. This may include decisions about aged care placement, consenting to medical treatment, or declining unnecessary interventions. Having an Enduring Guardian ensures these sensitive matters are addressed in line with the individual’s known wishes and values.
Sudden Incapacity: Unexpected medical events—such as a stroke, traumatic injury, or serious illness—can leave a person temporarily or permanently incapacitated. In the absence of an Enduring Guardian, loved ones may encounter legal hurdles and emotional distress while seeking urgent authority to act. Appointing an Enduring Guardian in advance allows for immediate, lawful decision-making regarding health care, accommodation, and support services, providing stability and reassurance during a crisis.
Legal Terms in Appointment of Enduring Guardian
Appointor: The person who creates the Appointment of Enduring Guardian.
Enduring Guardian: The person appointed to make personal and health decisions on behalf of the appointor.
Capacity: Legal and cognitive ability to understand and make decisions.
Revocation: The formal cancellation of a legal document, such as an appointment.
Tribunal: A legal body, such as NCAT (NSW Civil and Administrative Tribunal), that can review guardianship arrangements.
Appointment of Enduring Guardian: FAQs
Can I appoint more than one Enduring Guardian? Yes, you can appoint more than one person to act as your Enduring Guardian. You can also specify whether they must act jointly (make decisions together) or severally (make decisions independently). This flexibility allows you to tailor the arrangement to your preferences and the capabilities of those you trust. It’s important to provide clear instructions to avoid confusion or potential disputes among guardians.
Can an Enduring Guardian make financial decisions? No, an Enduring Guardian is not authorised to make financial or legal decisions on your behalf. Their role is strictly limited to personal, health, and lifestyle decisions such as medical treatment or accommodation. Financial decisions must be handled separately through an Enduring Power of Attorney. It is common to have both documents in place to ensure comprehensive future planning.
Can I change my Enduring Guardian later? Yes, you can change your Enduring Guardian at any time, as long as you still have the legal capacity to make decisions. The change must be made in writing and follow the formal revocation and reappointment procedures outlined in your state or territory’s legislation. It is essential to notify the former guardian and any relevant parties of the change. Seeking legal advice can ensure the process is correctly followed and properly documented.
What happens if I don’t have an Enduring Guardian? If you lose capacity without having appointed an Enduring Guardian, your family or loved ones may need to apply to a tribunal or court for a guardianship order. This process can be lengthy, complex, and emotionally taxing for those involved. There is also a risk that someone you would not have personally chosen may be appointed to make decisions on your behalf. Appointing an Enduring Guardian in advance helps avoid uncertainty and ensures your preferences are respected.
Is the document valid across Australia? Not automatically—each state and territory in Australia has its own legal framework for Enduring Guardianship. Some jurisdictions may recognise an appointment made in another state, but this is not guaranteed. If you regularly reside in or travel between different states, it is advisable to seek legal advice about whether separate appointments are necessary. Ensuring your arrangements comply with each relevant jurisdiction can prevent future complications.
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Disclaimer: Any information found in articles or pages on our website is for general guidance only and should not be considered legal advice. For advice tailored to your specific situation, please contact us directly to speak with one of our qualified legal professionals.
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