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What is an Enduring Guardian?

An enduring guardian is someone you appoint, at a time when you have capacity, to make personal, health or lifestyle decisions on your behalf should you lose the capacity to make them for yourself.  The appointment of an enduring guardian takes effect only if you lose the capacity to make your own decisions. You can appoint more than one enduring guardian if you wish.

You might consider appointing an enduring guardian if you want to specify that a particular person, e.g. a friend or relative, has authority to make decisions for you.

What sort of decisions can an enduring guardian make?

You choose which decision-making areas you want your enduring guardian to have.  These are called functions.  You can give your enduring guardian as many or as few functions as you like.  For example, you can authorise your enduring guardian to decide such things as where you may need to live or what medical treatment you should receive.

You may give the enduring guardian directions about how to exercise the decision-making functions you give them.  You cannot give your enduring guardian the authority to override your objection to medical treatment.  Only the Guardianship Tribunal can do this.

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

What sort of decisions is an enduring guardian unable to make?

An enduring guardian cannot make a will for you, vote on your behalf, consent to marriage, manage your finances or override your objections, if any, to medical treatment. He/she cannot consent to treatments that are defined as “special” medical treatments, for example, treatments such as new or experimental treatments. Only the Guardianship Tribunal can consent to special medical treatments.

Who can appoint an enduring guardian?

If you are 18 years or over, you can appoint one or more people to be your enduring guardian.  When 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 18 years or over. He or she should be someone you trust to make decisions in your best interests should you not be able to make these decisions for yourself.

He or she cannot be a person providing services to you on a professional or paid basis at the time of appointment.  However, this does not exclude a person receiving a Carers Allowance.

In deciding whom to appoint, it is worth considering the willingness and availability of the person to take on the role, as well as their age and health.  You can appoint more than one enduring guardian and you can appoint them in a number of ways. This is set out below.

Changes to the law about enduring guardianship

The law in relation to enduring guardianship changed on 1st January 2003.  The changes allow greater flexibility in appointing multiple enduring guardians and allow for different signatures to be witnessed by different witnesses.  This is helpful to people wanting to appoint someone as his or her enduring guardian who lives some distance away or interstate.

Information contained in this article is of a general nature and is applicable to the current law in New South Wales.  It is not intended to address the circumstances of any particular individual or entity. Advice from our experienced Estate Planning Team should be sought if there is doubt as to the applicability of this information to individual circumstances.

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