An Enduring Guardian is someone who you can appoint to make decisions on your behalf about your health and lifestyle decisions. This differs from a power of attorney, who is authorised to act on your behalf in relation to legal and financial decisions.
At some time throughout your life, you may need the help of others to make critical life decisions on your behalf. This may be as a result of a temporary or permanent impairment of decision-making capability caused by sickness, accident or disability. When you are unable to make independent decisions, your Enduring Guardian intervenes.
If your Enduring Guardian is unsure whether or not to begin making choices for you, he or she should consult a doctor who is familiar with your medical history. Unless you cancel the appointment while you are still mentally capable of doing so, it will remain in effect until:
(a) the Enduring Guardian resigns, dies or is otherwise unable or unwilling to be your Enduring Guardian; or
(b) the Enduring Guardian is discharged by the NSW Civil and Administrative Tribunal (NCAT) or the Supreme Court of NSW.
You may provide directions to the Enduring Guardian on how to use their authority. For instance, you might encourage them to consult with your doctor or other medical professionals prior to making certain decisions.
Any directions given to or placed upon an Enduring Guardian should be done so with care. This is to ensure the Enduring Guardian has the flexibility to exercise their power to make decisions for your care.
If you have strong beliefs or wishes relating to particular areas of your health or lifestyle, you can include those wishes in your Enduring Guardianship document. Examples include:
(a) Directions relating to the types of medical treatment you wish to receive;
(b) Directions relating to whether or not (based on any religious beliefs) you wish to have certain procedures such as blood transfusions; and
(c) Directions relating to the types of accommodation that you want to reside in, should you be required to enter residential care.
In deciding who to appoint as your Enduring Guardian, the following factors should be considered:
- The Enduring Guardian must be prepared to take on the duties. You cannot impose the role on someone without their consent.
- The Enduring Guardian should be capable of making judgments in the face of adversity and emotion.
- The Enduring Guardian should be made aware of and be willing to abide by your needs, desires, values, and views.
You may appoint a single Enduring Guardian or you may appoint more than one. If you appoint more than one, you must specify whether those persons will make decisions jointly or individually. Even if you appoint one person, it is always prudent to have a substitute in case your Enduring Guardian is unable or unwilling to remain in the role.
If the original Enduring Guardian dies, resigns, or becomes incapable of performing the position, the specified substitute Enduring Guardian then assumes the role.
Revocation of Enduring Guardian NSW
An Enduring Guardianship can avoid disputes between family members about the care of a loved one. Where there is no Enduring Guardianship, a person can make an application to the Guardianship Division of NCAT for one to be appointed. It is also possible for an application to be made by a concerned person to remove an Enduring Guardian if that person is not exercising their functions as required.
An Enduring Guardianship can be revoked at any time by signing a revocation, provided that you are of sound mind and can appreciate the effect of the revocation.
Lawpoint’s lawyers have extensive experience in enduring guardianships. Contact us today for assistance.
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