An Appointment of Enduring Guardian (EG) allows you (the principal) to choose someone (the guardian) you trust to make personal, health, and lifestyle decisions for you in the event you are unable to make these decisions for yourself, including:
- Where you live;
- What health care or medical treatment you receive; and
- What personal services you might need
An EG can only be used when you have lost legal capacity, and it is a common recommendation that the evidence to demonstrate loss of capacity is provided by way of a medical certificate confirming the same.
A guardian is required to act within your best interest, and it is important you have discussed with them your views on medical issues so that they can comply with your wishes.
Does my Guardian make financial decisions for me?
No, a guardian cannot manage your money or property. Financial matters are handled through a separate document called a Power of Attorney. Many people choose to have both in place.
When does the Appointment of Enduring Guardian start?
An EG only takes effect once you have lost capacity to make your own decisions and remains in place throughout the duration of the time that you cannot make decisions.
If you were to regain capacity, for example, you awoke from a coma and had capacity, the EG would become dormant again and you would make decisions for yourself.
Who can I appoint as my guardian?
Anyone over the age of 18 years who is able to make health and lifestyle decisions on your behalf.
It is important to remember the person you appoint will be able to make a decision above all other people in your life, so they must be a person that you trust to make a decision in accordance with your wishes.
An EG is a good way to appoint a person who may not have otherwise been the choice of a doctor in the event of an emergency.
Case Study: Jack
Jack is 68 years old. He was married in his 20s and there are 2 children from that relationship but following the breakdown of the marriage the children refused to contact or spend time with Jack, and he has not had a relationship with them since in 20 years.
Jack’s 2nd spouse, Billy, has 3 children from a previous relationship. Jack continues to have a relationship with these children, and they all refer to Jack as Dad or Pop.
If Jack wants to make sure that the views of his step-children are considered above those of his natural born children, he should appointment them as Guardians. This will mean if there is a dispute Jack’s step-children’s views will be prioritised.
Can I appoint more than 1 person?
Yes, in fact it is a recommendation that you appoint at least one person and an alternate person.
What makes an Enduring Guardian Legal
An EG must be:
- In writing
- Signed by the principal before a prescribed witness. A prescribed witness includes (among others): a solicitor or barrister, a Registrar of a Local Court, a licensed conveyancer who has done required training, or certain employees of NSW Trustee & Guardian. The witness must certify that the principal understands the effect of the document
- Signed by the Guardian/s before a prescribed witness
Both the appointor and the guardians are required to have received legal advice prior to signing the EG.
Can I change or cancel my Appointment of Enduring Guardian?
You can revoke or change an EG (so long as you have legal capacity), however there are requirements for you to notify the attorneys, in writing, that the old EG has been revoked or changed.
What happens if I don’t have an Enduring Guardian and I lost capacity?
In the event you lose capacity, and someone needs to make medical decisions on your behalf a doctor will talk to your “responsible person”, colloquially known as your next of kin.
If there is a dispute as to your ongoing care and treatment, then a person can make an application to the NSW Civil and Administrative Tribunal seeking a Guardianship Order. These orders are typically only made in limited circumstances, and whilst they can be made urgently, are only made after careful consideration of the tribunal.
To ensure that the person appointed is your preference you should complete and EG as part of your Estate planning.
