Planning for the future can be a complex and challenging process. After all, none of us wants to think about the possibility that we could be incapacitated and unable to make decisions for ourselves. However, an essential aspect of getting older and planning for the future (and one that is often overlooked) is appointing an enduring guardian.
In essence, an enduring guardianship agreement allows you to choose who will make important decisions about your health, lifestyle, and personal matters, if you're unable to do so yourself. This comprehensive guide will walk you through what enduring guardianship entails, its benefits, the differences between an enduring guardian and enduring attorney, and how to go about appointing an enduring guardian.
Please note: This guide is not a substitute for professional legal advice. It is designed to help you better understand the role of an enduring guardian and how it might apply to your situation. Please always consult with a legal professional before making any decisions regarding your enduring guardian, power of attorney, or other similar decisions.
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An enduring guardianship is a legal agreement that allows a person (the appointor, which is you) to nominate someone they know and trust (the guardian) to make personal, lifestyle, and health decisions on their behalf in the even that they become incapable of doing so – which can be due to an illness or other form of incapacity.
While an enduring power of attorney is appointed to manage financial and legal matters, an enduring guardian focuses on personal and health-related decisions. These might include decisions about where you live, the healthcare you receive, and other personal matters.
Any individual over 18 years of age, who properly understands the nature of the appointment, can be appointed as an enduring guardian. It is important to note that the person you appoint should be someone you trust completely to respect your values and wishes, and make decisions in your best interests.
According to New South Wales law, an enduring guardian can only begin making decisions when you are unable to do so, and their role continues until such time as you can take over the decision-making process, you revoke the appointment, your enduring guardian resigns, passes away, or is unable to carry out the role, or the appointment is changed or revoked by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) or the NSW Supreme Court.
When we think about enduring guardianship, it usually applies to the elderly, but can also apply to people diagnosed with dementia (even in their earlier years) or someone without the mental capacity – for example, with a brain injury or severe mental illness – to make decisions for themselves.
As we get older, it is important to think about who will make decisions for us when we are at our most vulnerable. Equally, if you are experiencing an injury, illness, or mental health concern that is likely to progress to a point that you are unable to make decisions about your healthcare and lifestyle on your own in the future, organising and enduring guardianship sooner rather than later is always preferable.
An enduring guardian may not have the need to make decisions for you at all, depending on your health and capacity as you get older or an illness progresses, but it is better to have all your bases covered just in case. Appointing an enduring guardian is particularly crucial if you have certain wishes about your healthcare, certain treatments that you would prefer not to receive (such as blood transfusions, in some religious and cultural instances, for example), or preferences about where you will live when your care becomes more complex.
It is important to note that your enduring guardian can only make decisions in the specific areas you outline, including where you live, the types of services you might receive, and the healthcare treatment you receive. They can also apply for extra decision-making authority if circumstances are more complex or you need extra support. They can also consult on decisions during your end-of-life stage and advance care plans. However, they cannot make decisions about your money or finances, anything that is against the law, or certain special treatments, among other things.
Understanding these limitations is crucial to ensure that an enduring guardian can effectively act in your best interests while respecting your rights, wishes, and autonomy.
An Advance Care Directive serves as a proactive tool that outlines your preferences regarding medical treatment, should you find yourself with a severe injury or illness, incapacitated, and unable to express your own decisions about your care. It is a document that can only be created by you, as an adult, while still fully capable of making informed decisions.
An Advance Care Directive is a crucial part of planning for your care, particularly if you have an illness or other condition that is likely to progress. If it is properly executed and valid, it holds an unwavering legal position. Neither healthcare providers nor family members have the power to overturn a legitimate Advance Care Directive. Nor does your enduring guardian.
An Advance Care Directive can and should cover the following:
Essentially, an Advance Care Directive is a blueprint of your medical and care preferences, and even an appointed enduring guardian must respect the directives laid out within it. The role of the enduring guardian is not to override these stipulations, but to ensure they are followed, respecting your wishes when you’re unable to voice them yourself.
You can have both an Advanced Care Directive and an enduring guardian, and your legal advisors might advise you that having both is the best way to ensure your wishes are carried out if you become incapacitated. As always, consult a legal professional with expertise in this area before making any decisions.
Appointing an enduring guardian is beneficial for a number of reasons. Primarily, it ensures that your wishes and preferences are respected, even when you cannot express them. An enduring guardian will act according to your beliefs and values, making decisions that align with your previously expressed preferences.
What’s more, having an enduring guardian can prevent potential conflicts within families by ensuring there's a clear decision-maker appointed. It also provides peace of mind to you and your loved ones, knowing that someone is there to advocate for your interests if you cannot do it yourself.
Your enduring guardianship can be revoked by you, while you have the capacity to do so, or by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) or the NSW Supreme Court. This might be necessary if the enduring guardian you appointed is no longer able to fulfill the requirements of the agreement because they pass away, become incapacitated themselves, or the appointment has been successfully contested in court. You can also appoint a substitute enduring guardian who only steps into the role if your original guardian is no longer able to make decisions for you.
An enduring guardian makes personal, lifestyle, and health decisions, while an enduring power of attorney makes financial and legal decisions on your behalf.
Yes, you can appoint more than one enduring guardian in New South Wales, but you need to outline how you want them each to make decisions – together (jointly), separately (severally) or both of these (jointly and severally). This can be a tricky thing to navigate, so be sure to get professional advice about how to best appoint guardians.
If you don't appoint an enduring guardian and later become unable to make decisions for yourself, a court or tribunal may need to appoint a guardian for you. That is why it’s best to appoint someone before this happens. That way you can rest assured that someone you know and trust is looking out for you, no matter what happens in the future.
Yes, an enduring guardian can make decisions regarding your medical treatment based on your previously expressed wishes and beliefs. They must comply with an Advanced Care Directive, if you have completed one of those.
No, an enduring guardian cannot make financial decisions on your behalf. That is the responsibility of an enduring power of attorney.
Yes, you can change your enduring guardian as long as you have the capacity to understand the nature and effect of the change (before you are incapacitated).
You cannot appoint a professional such as your doctor or assisted living facility provider as your enduring guardian unless they are your carer and are receiving the Centrelink Carer’s Allowance.
To make an enduring guardianship appointment in New South Wales, you need to choose someone you trust, such as a spouse, family member, or friend, who is willing to take on the role, can make decisions in difficult and emotional circumstances, understands your needs, wishes, values and beliefs, and is easy to contact when those decisions need to be made. You cannot appoint the Public Guardian (see below) as your enduring guardian.
The Public Guardian is a public official appointed by NCAT or the Supreme Court to make healthcare, lifestyle, and medical decisions for individuals who are unable to make decisions themselves. They are the 'guardian of last resort' and work under NSW Trustee & Guardian.
The Public Guardian can be appointed when a person has a decision-making disability, lacks a suitable family or friend to act as a guardian, has experienced abuse or neglect, or lives a lifestyle that puts them at risk. They have the authority to make specific healthcare, lifestyle, and medical decisions and advocate for care and services, but they do not handle financial decisions, which are the responsibility of attorneys under a power of attorney or appointed financial managers.
The appointor must be over 18 years of age and understand the nature of the appointment. The document should be in the approved format and signed by both the appointor (you) and the appointed guardian.
To revoke or change an enduring guardianship, you need to complete a new document and inform the existing guardian of the revocation.
Yes, an enduring guardianship appointment can be challenged by an interested party through a tribunal, and is usually done so on the grounds of the appointor's capacity or the appropriateness of the appointed guardian.
Yes, an older sibling can be a legal guardian in Australia, provided they are over 18 years of age and have the capacity to make decisions on behalf of the person needing a guardian. The suitability of a sibling would be assessed based on things like their ability to meet the needs of their younger sibling, their willingness to take on the role of guardian, and the quality of the existing relationship between the siblings. This appointment would typically be made by a court or tribunal, who would consider the best interests of the person needing a guardian.
Enduring guardianship is a vital aspect of future planning. It ensures that your personal, lifestyle, and health-related decisions will be made in your best interest if you become incapable of making these decisions yourself. By appointing an enduring guardian, you can secure peace of mind for yourself and your loved ones, knowing that your values and wishes will be upheld. It's a conversation worth having sooner rather than later, to ensure your lifestyle, health and medical choices are met.
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