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What do I need to know about Enduring Guardianship?

Posted by PW Lawyers on 23 April 2024
What do I need to know about Enduring Guardianship?

What is an Enduring Guardianship?

An Enduring Guardianship a legal document that allows you to nominate another person to make decisions about your health and lifestyle on your behalf when you are not capable of doing this for yourself due to incapacity. An incapacity refers to an illness, a serious accident such as a car accident in which you sustain brain damage, or the progression of a disease that affects your cognitive abilities, such as dementia.

The person that makes the Enduring Guardianship is called the Appointor and the person who is nominated by the Appointor to manage their health and lifestyle is called the ‘Guardian’. The appointment of an Enduring Guardian is governed by the Guardianship Act 1987 (NSW).

An Enduring Guardianship can be made by any person over 18 years of age who has the capacity to nominate an Enduring Guardian. This means that a person must be capable of understanding the nature and effect of an Enduring Guardianship at the time that the document is made.


When does the Enduring Guardianship come into effect?

The appointment of an Enduring Guardian takes effect when the appointor becomes unable to make their own personal and lifestyle decisions given an illness, accident, or mental incapacity.


Who can be an Enduring Guardian?

In New South Wales, an Enduring Guardian must be:

  1. At least 18 years of age.
  2. Someone you know and trust, who is willing and able to carry out the role.
  3. Not a person or relative of a person who, at the time of appointment, provides medical treatment or care to you professionally, for reward, or on behalf of another person who provides medical treatment or care to you for reward.

An Enduring Guardian cannot be a person who provides accommodation services or support services for daily living to you for payment. This includes staff of a residential service where you live or a person who provides services to you under the National Disability Insurance Scheme (NDIS).


Can I revoke an Enduring Guardian?

Yes, you can revoke an Enduring Guardian in New South Wales. This is done by writing a revocation document. The revocation document should include your intention to revoke the appointment, the name of the Enduring Guardian whose appointment is being revoked, and your signature. It is also recommended to have the document witnessed by a person who is eligible to witness the signing of a statutory declaration. Once the revocation document is prepared, you should give a copy to the Enduring Guardian.

Please note that you can only revoke an Enduring Guardian if you have the mental capacity to understand the nature and effect of the revocation. If you have lost capacity, under the Guardianship Act 1987 (NSW)the NSW Civil and Administrative Tribunal (NCAT) or the Supreme Court can review the appointment of the Enduring Guardian.


What happens if I have a falling out with the person whom I have appointed to be my Enduring Guardian and I want to replace them with a new Guardian? Can I create a new Enduring Guardianship document appointing the new Guardian?

Yes, you can create a new Enduring Guardianship document whilst you still have mental capacity. You will need to revoke the previous Enduring Guardianship document and request that you former Enduring Guardian destroy their copy of the former Enduring Guardianship document (if they have been provided with one).


What happens to my Enduring Guardianship document if I get married?

Under section 6HA of the Guardianship Act 1987 (NSW), the appointment of an Enduring Guardian ceases, if the appointer marries or remarries after the date of the appointment was made, unless the Enduring Guardian is the person you have married.


What happens if my Guardian dies before me and cannot continue with the role?

It is possible that the person whom you appoint to be your Guardian could die before you, lose capacity, resign or otherwise be unable or unwilling to continue to act as your Guardian for the remainder of your lifetime. When this happens, the Enduring Guardian document will cease to have effect as there is no one else appointed under the document who can step in to make decisions on your behalf.  For this reason, you can also appoint a substitute Guardian to step in if your first choice of Guardian is unable or unwilling to act.


What happens if an Enduring Guardian is not Appointed?

If you do not appoint an Enduring Guardian, the Guardianship Division NCAT  can appoint you a guardian under the Guardianship Act 1987 (NSW). This may not be a person of your choice and could be the NSW Trustee and Public Guardian, who can charge substantial fees depending on the amount of assets and income you have. This usually occurs when the person cannot make decisions for themselves because of their disability. Before appointing a guardian, the tribunal will consider:

The wishes of the person needing a guardian.

  1. The views of any family and carers involved in the person’s life.
  2. The individual’s current situation and what they need a guardian for.
  3. Whether there are any other alternatives to appointing a guardian.

The Public Guardian will be appointed if NCAT does not believe there is a suitable person available. Sometimes NCAT sees the appointment of the Public Guardian is the safest option. This may mean that the public guardian could make decisions on your behalf that you and your loved ones would disagree with. It is always best to appoint an Enduring Guardian ahead of time who you know will make the best decisions on your behalf, rather than run the risk of another person you does not know being appointed as your guardian.


Who can witness an Enduring Guardian?

In New South Wales, the appointment of an Enduring Guardian must be witnessed by an eligible witness. According to section 6C(2) of the Guardianship Act 1987 (NSW), an eligible witness includes:

  1. An Australian legal practitioner
  2. A Registrar of the Local Court
  3. A licensed conveyancer
  4. A foreign lawyer (a lawyer from another country)

The witness must explain the effect of the document to the appointor before the appointor signs the document. If the appointor does not understand English, the explanation must be given in a language the appointor understands.

The witness must not be a person who is appointed as an Enduring Guardian in the document.


Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.


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Author:PW Lawyers
Tags:Estate PlanningEnduring Guardianship