What is an Enduring Guardian?
An Enduring Guardian is the person you legally appoint to make decisions about your health and lifestyle in the event you cannot make these decisions for yourself.
You can appoint an Enduring Guardian as long as you are over 18 and have the capacity to make this choice on your own.
Please note, NSW Trustee and Guardian employees will only witness an Appointment of Enduring Guardian that has been drafted by NSW Trustee and Guardian and is unable to witness documents that have been drafted externally (e.g. using an Appointment of Enduring Guardian Form or drafted by a private solicitor). As a result, the Appointment of Enduring Guardian Form is no longer available for download on this website.
What is the role of an Enduring Guardian?
There may be a time in your life when you need someone to make important decisions for you. This could be due to a temporary or permanent loss of decision-making ability from illness, injury or disability – this can happen at any time in your life.
Your Enduring Guardian only starts making decisions for you when you are unable to.
A doctor or specialist can be called upon if it is uncertain whether your Enduring Guardian should start making decisions. The appointment continues for as long as you need it unless:
- you revoke or cancel it while you have mental capacity to do so
- your Enduring Guardian resigns from the role, dies or is unable to carry out the role
- the appointment is changed or revoked by the Guardianship Division of NSW Civil and Administrative Tribunal (NCAT) or the NSW Supreme Court.
You can provide information to help your Enduring Guardian know how they should use their authority.
For example, you might direct them to seek advice from your doctor or medical specialists before they make certain decisions.
It’s important to remember that directions or limits should be applied thoughtfully as they can remove flexibility in decision making.
What kinds of decisions can be made by an Enduring Guardian?
Your Enduring Guardian only makes decisions in the areas you outline, these might include:
- where you live and the services you might receive
- healthcare, medical and dental treatment you receive.
They can also:
- apply for extra decision-making authority if circumstances are more complex or you need extra support
- consult on decisions during your end-of-life stage and advance care plans.
They cannot make decisions about:
- your money
- who you vote for
- marriage on your behalf
- anything that is against the law
- saying ‘yes’ or ‘no’ to special treatments, such as those that will prevent you having children, terminating a pregnancy, restrictive practices (unless specifically authorised in the Enduring Guardian document), or new treatments that have not yet been reviewed by medical industry experts.
- making or changing your advance care directive and making or changing your Will.
Can an Enduring Guardian make financial decisions on my behalf?
No. To make financial decisions on your behalf, you can appoint someone under an Enduring Power of Attorney. This can be the same person as your Enduring Guardian.
Who should I appoint as my Enduring Guardian?
They should be someone you trust such as a spouse, family member or friend.
If you do not have an Enduring Guardian and decisions need to be made on your behalf, a court or tribunal may need to appoint someone to make decisions for you.
It is essential the person you appoint:
- is willing to take on the role
- can make decisions in difficult and emotional circumstances
- understands your needs, wishes, values and beliefs
- is easy to contact when decisions need to be made
- understands they won’t be paid to undertake this role.
You cannot appoint someone who, in a professional or administrative capacity, is responsible for or involved in providing you with medical services, accommodation or any other services to support you in your activities of daily living for fee or reward. (Note: if your family member or friend acts as your carer and is in receipt of the Centrelink carer payment, this does not prevent them from being appointed as your Enduring Guardian).
You cannot appoint either the Public Guardian or NSW Trustee and Guardian as your Enduring Guardian
Definitions
- revoke
Officially cancel either voluntarily or by operation of the law.
- Tribunal
A legal forum to make and review decisions and settle conflicts. Tribunals are like courts but are usually more specialised and less formal.
Types of Enduring Guardians
You can appoint just one person to be your enduring guardian, but its always good to have a backup in case your enduring guardian isn’t in a position to take on the role, or to continue in the role.
If you are appointing more than one guardian, there are two ways you can do this – by appointing multiple enduring guardians or by appointing a substitute enduring guardian, in addition to your first appointed enduring guardian.
Multiple Enduring Guardians
You can appoint more than one Enduring Guardian, but you need to outline how you want them each to make decisions – together (jointly), separately (severally) or both of these (jointly and severally).
Jointly |
Enduring Guardians have the same decision-making areas and need to agree and act together when making decisions. Make sure you have considered how you want your Enduring Guardians to make decisions if one is unable to carry out the role. |
Severally |
Enduring Guardians can work separately with the same or different decision-making areas. They can make decisions without needing to agree or act together. Think about the possibility that Enduring Guardians can carry on making decisions if the other one(s) becomes unable to make decisions for you. |
Jointly and severally |
Enduring Guardians are appointed with the same decision-making areas and they can work together or separately when they make decisions for you. |
Substitute Enduring Guardian
You can appoint another person as a substitute Enduring Guardian who only makes decisions for you if your original guardian is no longer able to.
If you have not appointed a substitute, you no longer have capacity and your Enduring Guardian is no longer able to make decisions for you, anyone concerned for your welfare can make an application to NCAT to decide who your guardian should be.
How do I appoint an Enduring Guardian?
We’re here to help you
We can help you prepare your Enduring Guardianship document.
If you would like us to prepare your Enduring Guardian document for you, click one of the options below to request an appointment with one of our estate planning professionals.
- Enduring Guardian document can be prepared for a fee of $231*, or
- Consider if you need a Will and Power of Attorney as well as Enduring Guardian document. Preparation of all three documents starts from $693
Or call us on 1300 10 20 30 to discuss your needs
*If you receive a full Centerlink Aged Pension this fee can be waived
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