Enduring Guardian
What is an Enduring Guardian?
An Enduring Guardian is someone you appoint to make lifestyle, health and medical decisions for you when you are not capable of doing this for yourself. Your Enduring Guardian may make decisions such as where you live, what services are provided to you at home and what medical treatment you receive.
Enduring Guardianship only comes into effect if or when you lose capacity and will only be effective during the period of incapacity, therefore, it may never become operational.
Who can I choose as my Enduring Guardian?
You need to carefully choose your Enduring Guardian taking into account the person’s willingness to take on the role, their availability, age and health. Other things you should consider when choosing your Enduring Guardian are:
- What is their ability to make decisions in potentially difficult and emotional circumstances?
- How well does the person understand your needs, wishes, values and beliefs?
- How easy will it be to contact the person when a decision needs to be made?
A person is not eligible to be appointed as your Enduring Guardian if they are involved in a professional or administrative capacity in providing any of the following services to you for a fee:
- Medical services or cares for you in a professional capacity
- Accommodation
- Any other services to support your daily living activities.
It also excludes someone who is relative of a person providing these services. If someone receives the carers pension only, they can be appointed as your Enduring Guardian.
The person you appoint as your Enduring Guardian should understand their responsibilities as a substitute decision maker and be someone you trust to be able to take into account your views and previous lifestyle choices and be able to make decisions in your best interests.
How do I appoint an Enduring Guardian?
If you wish to appoint an Enduring Guardian, you need to complete a legal form of appointment. Once you have completed the form you and your Enduring Guardian have to sign the form and have your signatures certified by a witness. The person or people you are appointing as your Enduring Guardian need to sign the same form in front of an eligible witness to show that they understand what the appointment as your Enduring Guardian means.
Who can be an eligible witness?
The role of the eligible witness is to act as a witness and to certify that the person making the appointment and the person accepting the appointment as Enduring Guardian appeared to understand nature and effect of the document.
Only an Australian legal practitioner, Registrar of the Local Court, overseas legal practitioner, or approved officer from NSW Trustee & Guardian or Public Guardian may witness your signature and the signatures of the people you appoint.
The witness cannot be the same person you appoint as your Enduring Guardian. While every signature on the form must be witnessed different signatures can be witnessed by different people at different times and places.
What guides the decision making of my Enduring Guardian?
Your Enduring Guardian must act within the principles of the Guardianship Act 1987 (NSW) which sets out principles a guardian needs to observe when acting as guardian for another person, such as:
- Their welfare and interest are paramount
- Their freedom to decide and act for themselves should be restricted as little as possible
- Their views should be taken into account
- They should be encouraged to live a normal life and be self reliant
These principles aim to promote the independence and choice of the person as well as ensuring the person’s care and protection from neglect or exploitation.
How can I revoke my Enduring Guardianship appointment?
While you have legal capacity, you can revoke the appointment of an Enduring Guardian. To do this you need to complete a Revocation of Appointment of Enduring Guardian form. This form will also need to be witnessed by an eligible witness. You have to advise the Enduring Guardian in writing that their appointment has been revoked, otherwise the revocation is ineffective.
For more information call us on (02) 8677 5386 for an appointment at our office Suite 8, Level 1, 48 Macquarie St, Parramatta
For more information, please contact YFX Lawyers on (02) 8677 5386 or ring to make an appointment with our office.