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When it comes to making important decisions, especially once someone has lost capacity, most of the time the immediate thought goes to financial management. Many do not consider what will happen if they are in a position where they are unable to make lifestyle and medical decisions.

An Enduring Guardian is a trusted person a principal appoints to make lifestyle, health and medical decisions for them when they are no longer in a position to be able to make these decisions on their own. Such decisions include where a person will live and what services and treatments they are to receive.

It is important to note that an Enduring Guardian only comes into operation when (and if) the principal loses the capacity to make their own lifestyle and medical decisions. Additionally, the appointment of an Enduring Guardian will only be effective during the period of incapacity. It may be that the appointment of an Enduring Guardian never actually comes into operation, however, like a Power of Attorney it is always a good idea to plan for the unexpected.

WHAT DECISIONS CAN AN ENDURING GUARDIAN MAKE?

An Enduring Guardian can only make medical, health and lifestyle decisions on behalf of the principal and as such they are not able to make any financial decisions without a valid Power of Attorney. The principal is able to note in the document what decision areas the Enduring Guardian is able to operate, the most common include:

  • Accommodation- Where the principal will live such as an aged care facility.
  • Health Care- What health care the principal will receive such as decisions in regards to doctors, end of life treatment and palliative care.
  • Services- What personal services the principal is to receive- including support and recreational services.
  • Consent to medical and dental treatment- What medical or dental treatment the principal can receive.

HOW TO MAKE AN ENDURING GUARDIANSHIP

Like a Power of Attorney, it is possible to get DIY kits from newsagents, post offices and from the internet. However, like a Power of Attorney it is recommended that a principal receives legal advice on the appointment of an Enduring Guardian as the documents signed are important legal documents. The nominated guardian is required to sign the document to demonstrate their understanding of what their appointment entails. The signature of the Principal and the nominated guardian will need to be witnessed by a legal practitioner, a Registrar of the Local Court, or an approved officer from NSW Trustee & Guardian.

WHEN DOES AN APPOITMENT OF ENDURING GUARDIAN BECOME EFFECTIVE?

An Enduring Guardian only becomes effective once the principal loses capacity to make their own health, medical and lifestyle decisions, this may occur as a result of a serious accident or illness. If the issue of whether the principal has lost capacity is in dispute, a medical certificate or report from a treating doctor may be required to establish whether the principal is able to continue making their own decisions or whether the Enduring Guardian should begin to exercise their authority and essentially take over the decision making responsibility from the principal.

WHEN DOES AN ENDURING GUARDIANSHIP APPOINTMENT CEASE?

An Enduring Guardianship appointment ends:

  • When the principal dies;
  • When the principal revokes the appointment- This can be done by executing a Revocation of Appointment of Enduring
  • Guardian form. The appointed guardian should also be advised of this decision in writing otherwise, the revocation is deemed ineffective;
  • If the principal marries after appointing an enduring guardian- It is important to note that unless the principal marries the guardian, upon marriage the appointment is automatically revoked or cancelled. If the principal wishes to retain the enduring guardian or wishes to appoint another, a new form will need to be executed.
  • If the appointed guardian dies, becomes unable to fulfil their duties or resign;
  • If the Guardianship Divison of the NSW Civil & Administrative Tribunal revokes the appointment of the Enduring
  • Guardian in situations where it is believed the principal did not have the capacity to make such an appointment;
  • If the Tribunal makes a guardianship order which suspends any appointment in the event there is some contention over whether the principal had capacity to make such an appointment.