Who should I appoint as my Enduring Guardian?

In New South Wales, an Enduring Guardian is someone you legally appoint to make lifestyle, health, and medical decisions for you if you lose the ability to make those decisions yourself. This appointment only takes effect if you lose capacity in the future. It is different from an Enduring Power of Attorney, which covers financial and legal matters.

Why is it Important to Appoint an Enduring Guardian?

If you do not appoint an Enduring Guardian, there may be confusion or disputes regarding who should make decisions for you. Without an appointment, the NSW Civil and Administrative Tribunal (NCAT) may need to intervene and select someone. Designating your own Guardian provides peace of mind, knowing that a trusted individual will manage your personal and healthcare needs.

Who Should I Appoint as My Enduring Guardian?

Choosing an Enduring Guardian is a personal decision. You should appoint someone you trust completely — someone who: 

• Understands your values, beliefs, and wishes 
• Will act in your best interests 
• Can stay calm and make decisions under pressure 
• Is willing and able to take on the responsibility 

It is also important to consider: 

• Dedication: They should have time to act as your Guardian without being overly busy. 
• Age and Health: Ideally, appoint someone likely to outlive you and who is in good health. 
• Location: It is practical to appoint someone who lives nearby or ideally at least within the same state. 
• Relationship with Others: Strong relationships can make decision-making easier.

Can I Appoint More Than One Guardian?

Yes, you can appoint multiple guardians. Options include:

• Jointly: All guardians must make decisions together.
• Severally: Each guardian can make decisions independently.
• Jointly and Severally: Guardians can act together or separately.

When appointing more than one guardian, consider whether they can work well together.

What Decisions Can an Enduring Guardian Make?

An Enduring Guardian can make decisions about: 

• Healthcare decisions 
• Accommodation decisions 
• Services decisions 
• Personal decisions 

You can limit the powers you give to your Guardian if you wish.

What Decisions Cannot Be Made by an Enduring Guardian?

An Enduring Guardian cannot:

• Make financial decisions
• Consent to marriage or divorce
• Make decisions about adoption
• Vote on your behalf
• Make or change your Will
• Decide on funeral or burial matters
• Consent to assisted reproductive technology
• Consent to experimental healthcare (unless authorised)
• Consent to special medical treatments (unless authorised)

Obligations of an Enduring Guardian

An Enduring Guardian must:

• Act in your best interests
• Operate strictly within their authority
• Avoid any conflicts of interest
• Honour your wishes and privacy
• Consult with relevant individuals
• Maintain records of decisions

How Do I Appoint an Enduring Guardian?

In New South Wales, you must: 

• Complete an Appointment of Enduring Guardian form 
• Sign it in front of an eligible witness 
• Have your Guardian accept their role 

The appointment must comply with the Guardianship Act 1987 (NSW).

Can I Change or Cancel My Enduring Guardian?

Yes, if you still have capacity, you can: 

• Revoke the appointment 
• Appoint a new Guardian 

You must: 

• Complete a Revocation of Appointment form 
• Sign it in front of a qualified witness 
• Notify your previous Guardian and relevant parties.

What Happens if My Enduring Guardian is Not Doing Their Job Properly?

If your Guardian is not acting appropriately, a concerned individual can apply to NCAT. NCAT can:

• Change the Guardian’s powers
• Appoint a different Guardian
• Cancel the appointment

You can also personally revoke the appointment if you still have the capacity.

Key Points to Remember

• Only a person with full legal capacity can appoint or revoke an Enduring Guardian.
• The Guardian’s powers begin only if you lose capacity.
• The appointment must comply with the Guardianship Act 1987 (NSW).
• You can limit the Guardian’s powers.
• NCAT can review or change appointments if necessary.
• You can revoke or change your Guardian while you still have capacity.
• Always notify hospitals and contacts if you change your Guardian.

Conclusion

In New South Wales, appointing an Enduring Guardian is a crucial aspect of future planning. It ensures that if you lose the ability to make personal or medical decisions, someone you trust can act on your behalf. If you would like advice about choosing or appointing an Enduring Guardian, our team at PW Lawyers is here to assist you.

Contact us for a free thirty-minute consultation with one of our team to assist you with your Enduring Guardianship.

Please be aware that this blog is based on New South Wales legislation. The appointment of an Enduring Guardian is different in each state in Australia.

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.

Photo by Vlada Karpovich: