Enduring Guardianship

Accidents or illnesses can throw people into situations where they can’t make decisions. Affected individuals can take advantage of an appointment of an enduring guardian to make life decisions on their behalf. This article answers top questions that help individuals understand the nitty-gritty of enduring guardianship in New South Wales.

Enduring guardianships constitute binding agreements that allow someone to appoint someone else to decide on their behalf if they become incapacitated. The documentation is regulated by the Enduring Guardianship Act 1987.

Some of the matters the appointed guardian can decide on include:

•     Where their appointor lives, temporarily or permanently
•     The education and training their appointor receives
•     Who the appointor associates with
•     Whether the appointor works, and if so, matters related to the work
•     Healthcare and medical treatments
•     Matters relating to the appointors’ welfare, e.g., daily routine and social activities

The decisions must be according to the wishes and best interests of the person in the enduring guardianship. Any decision must be written, and the guardian and the appointor must be over 18 years old. If the person has a living will, the guardian should follow the instructions therein and not alter or contest the will.

Older adults and people with medical conditions that make them unable to make decisions might need the enduring power of guardianship. The power of guardianship puts the appointor’s wishes into action. The document also ensures that end-of-life care decisions and advanced care directives are respected and no one takes advantage of the appointor.

Medical conditions like dementia and brain injuries may limit one’s decision-making capacity. People with terminal illnesses may also become too ill to speak for themselves. Enduring power of guardianship allows someone to decide or uphold decisions even when the appointor can’t provide consent.

An application must be launched with a state or territory court or tribunal to get an enduring power of guardianship. The application includes a copy of the proposed guardianship instrument and any relevant documents. For example, a medical report that confirms the appointor’s incapacity to make decisions is needed in cases of illnesses.

The court or tribunal reviews the application and decides whether to approve the appointment. If approved, two witnesses and the guardian sign the agreement. The enduring power of guardianship comes into effect upon registration and continues for as long as the appointor needs it. Revocation of enduring guardian in NSW can, however, happen if:

•     The appointor revokes it when they have the mental capacity to do so
•     The enduring guardian dies, resigns, or is unable to carry out the role
•     The Supreme Court or Guardianship Division of NSW Civil and Administrative Tribunal revokes or changes the appointment

Two people must witness the signatures of the appointor and appointee or appointees. Witnesses must be at least 18 years old and authorised to witness legal documents under the Oaths, Affidavits, and Statutory Declarations Act 2005. Witnesses shouldn’t be related to the appointor or guardian.

The appointor, enduring guardian, enduring guardian substitute, and anyone who has signed on the appointor’s behalf cannot be a witness.

Enduring guardianship and power of attorney are similar in that each gives a person the authority to act on someone else’s behalf. The two, however, differ since each covers different categories of decisions. An enduring guardianship allows someone to appoint another to act on their behalf in decisions related to health and welfare.

A power of attorney appoints someone to decide on financial, business, and property affairs. An enduring guardianship doesn’t allow the guardian to decide about properties, testamentary trusts, or finances. Similarly, a power of attorney doesn’t cover personal and lifestyle decisions.

Anyone who wants an enduring power of guardianship must meet various formal legal requirements. Get sound legal advice to ensure the power applies only when needed. If you want an enduring guardianship lawyer in NSW, contact Stephen Wawn & Associates.

Our highly qualified and experienced lawyers also handle dispute resolution, intestacy, and debt recovery, among other issues.