The questions below address the most common questions relating to Enduring Guardianship.
If, after reading these you have any further questions relating to Enduring Guardianship please contact the Public Guardian Information Support Line on 02 8688 6070.
Who can appoint an Enduring Guardian?
If you are an adult (over 18) and you have capacity you can appoint an Enduring Guardian for yourself or you can be appointed as an Enduring Guardian for someone else.
To appoint an Enduring Guardian you need to understand the nature and effect of the Enduring Guardianship document at the time it is made. In legal terms this means that you have ‘capacity’ and are able to understand that you are appointing someone to make medical, health and lifestyle decisions for you, in case you lose capacity to make your own decisions in these areas.
It is also important that you understand that you can revoke the appointment and make another appointment at any time provided you continue to have capacity to make these decisions.
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
- 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.
While NSW Trustee & Guardian is able to be appointed as your Attorney it cannot be appointed your Enduring Guardian.
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.
Where can I get an Enduring Guardianship appointment form?
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. For example your signature can be witnessed in NSW and your Enduring Guardian’s signature can be witnessed in another state.
NSW Trustee & Guardian is able to witness Enduring Guardianship documents. To make an appointment to have your Enduring Guardianship document witnessed call 1300 364 103.
The role of NSW Trustee & Guardian as a witness is to check capacity and explain the document to the extent that the Appointor and Appointee both understand the effect and obligations of the Enduring Guardianship. NSW Trustee & Guardian is unable to offer advice relating to Enduring Guardianship issues. However, you can call the Information Support Line at the Public Guardian to talk through the issues of appointing an Enduring Guardian on 02 8688 6070.
Can I appoint more than one Enduring Guardian?
You can appoint more than one Enduring Guardian. When appointing more than one Enduring Guardian, you should choose people who can cooperate with each other and who you trust to work together in your best interests.
If more than one is to be appointed the appointor needs to specify whether the Enduring Guardians are to act:
You may appoint a number of people jointly to be your Enduring Guardians. This means that your Enduring Guardians have the same functions or decision-making areas. In making decisions on your behalf they must always agree and act together.
It is important to think about what you would like to happen if one of the joint Enduring Guardians dies, resigns or becomes incapacitated.
If you want the other Enduring Guardian to continue to have their decision-making authority, then you must state this on the form. If you do not specify this, then the appointment of the remaining guardian ends.
You may appoint a number of people severally (meaning separately or independently) to be your Enduring Guardians. Appointing severally means that your guardians can make decisions without needing to agree and act together.
When appointing Enduring Guardians severally, separate forms may be used but having the appointment of all your Enduring Guardians with their functions specified on the same form will help inform all your Enduring Guardians about who can make decisions.
Jointly and Severally:
You may appoint a number of people jointly and severally to be your Enduring Guardians. This means the Enduring Guardians have the same functions or decision-making areas and can act either together or independently in making decisions on your behalf.
There are a number of things you may wish to consider when deciding to appoint more than one Enduring Guardian:
- Enduring Guardians appointed jointly are expected to work together and reach agreement on the decisions that need to be made. Do the people you intend to appoint have the ability to cooperate and communicate well with each other in making decisions on your behalf?
- If your Enduring Guardians are appointed jointly the appointment ends on the death, incapacity or resignation of the other (or one of the others) unless otherwise indicated in the Enduring Guardianship document. If appointed jointly and severally the appointment of the other/s remains valid on the death, incapacity or resignation of the other (or one of the others).
What is an Alternative Enduring Guardian?
You may appoint an alternative Enduring Guardian. If you do, the alternative Enduring Guardian will only have authority to act if the original Enduring Guardian dies, resigns or becomes incapacitated.
The alternative Enduring Guardian must sign the form before an eligible witness to show they understand and accept the appointment.
Only one alternative (substitute) Enduring Guardian can be appointed.
If your Enduring Guardian dies, resigns or becomes incapacitated and you have not appointed an alternative Enduring Guardian the Guardianship Division, NSW Civil & Administrative Tribunal may appoint the Public Guardian if there is no-one else and may also appoint a financial manager if there is no Enduring Power of Attorney and there is a need for this authority. This will only occur if decision making is required and cannot be done informally with other supports.
The Guardianship Division, NSW Civil & Administrative Tribunal may appoint a alternate guardian for a limited time if there is a genuine need and if an application is made from someone who has a genuine concern for your health and welfare.
A person who can be considered as guardian under the Guardianship Act 1987 (NSW) will be someone who in the opinion of the Tribunal, has a genuine concern for your welfare, a close personal relationship with you and is willing and capable of acting as your guardian. If there is no-one to take on this role then the Public Guardian will be appointed as last resort.
Where should I keep my Enduring Guardian form of appointment?
While there is no requirement to register your Enduring Guardianship document your Enduring Guardianship form is an important legal document. However, it is only of use if it is able to be located when required. The original Enduring Guardianship form should be stored in a safe place, possibly where you keep your other legal documents such as your Will and Enduring Power of Attorney.
It is important that your Enduring Guardian has a copy of the form of appointment. Where possible this should be a certified copy. Your Enduring Guardian should know where to find the original form of appointment as they may need to produce evidence of the appointment.
If you have made a Will or Power of Attorney with the NSW Trustee & Guardian we are able to store your Enduring Guardianship document with your Will or Power of Attorney free of charge in our fireproof safe ensuring that it won’t be misplaced and can easily be located when required.
What decisions can my Enduring Guardian make?
Your Enduring Guardian can only make medical, health and lifestyle decisions on your behalf. In appointing an Enduring Guardian you are appointing a ‘substitute decision maker’ and the decision areas you nominate for your Enduring Guardian to make on your behalf are called ‘functions’. You are able to choose the functions or decision making areas that you give to your Enduring Guardian.
The Enduring Guardian appointment form includes a list of functions. You can delete the functions you do not want your Enduring Guardian to have and add others if you wish.
The most common decision making areas or functions for an Enduring Guardian are:
Accommodation – to decide where you live: respite care, aged care facility or hospital.
Health Care – to decide what health care you receive . This function gives authority to your Enduring Guardian to choose or change your doctors (or other health care professionals) and make decisions about end of life treatment such as palliative care.
Services – to decide what personal services such as attendant care, domestic support, recreational services you should have to support and assist you.
Consent to medical and dental treatment – to give or withhold consent to medical and dental treatment on your behalf.
It is not possible for your Enduring Guardian to consent to medical treatment or dental treatment on your behalf when you object to that treatment.
What directives can I give my Enduring Guardian?
The option of giving directions or setting limits on your Enduring Guardian are generally included on the form of appointment.
You can direct your Enduring Guardian as to how they should exercise their decision-making authority in the functions you have given them. For example you may direct them to seek advice from particular authorities before they can make a decision. If the directions are made as part of the witnessed appointment and are relevant to the decision that needs to be made, they are considered binding directions.
You can also limit the authority of your Enduring Guardian by crossing out the function that you do not wish them to have. This means your Enduring Guardian can have authority in one, some, or all of the functions listed on the form.
There is an important difference between identifying the decision-making areas you wish to give your Enduring Guardian and setting out a list of specific decisions you would like your Enduring Guardian to make. If you give your Enduring Guardian directions or set limits they are legally binding and remove flexibility from their decision-making process this may restrict them from considering all options when making a decision.
What decisions is my Enduring Guardian able to make?
Your Enduring Guardian cannot consent to anything unlawful and cannot:
- Make a will for you
- Vote on your behalf
- Consent to marriage
- Manage your finances or
- Override your objections to medical treatment. (An application must be made to the Guardianship Division, NSW Civil & Administrative Tribunal to authorise medical treatment overriding your objections.)
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.
Does anyone supervise my Enduring Guardian?
Your Enduring Guardian and their decision-making role is not subject to supervision and there is no requirement that the Enduring Guardian report on his or her role in making decisions on your behalf.
Any person who has a genuine concern for your welfare can request the Guardianship Division, NSW Civil & Administrative Tribunal review the appointment of your Enduring Guardian. In reviewing the appointment of an Enduring Guardian, the Tribunal may revoke or confirm the appointment, or vary the functions of the appointed Enduring Guardian. If the Tribunal decides to revoke the appointment of your Enduring Guardian, it can appoint a different guardian for a limited time under a guardianship order.
Only the Guardianship Division, NSW Civil & Administrative Tribunal can make changes to the appointment of your Enduring Guardian if you have lost capacity.
When does the appointment of my Enduring Guardian become effective?
The appointment of your Enduring Guardian takes effect only if you loose capacity and become unable to make your own medical or lifestyle decisions.
In some cases it will be clear when you have lost capacity and are unable to make decisions for yourself, for example, in cases of severe illness or accident. In other cases the decision about whether you have lost capacity to make your own decisions is less clear. For example, if you have dementia your decision-making capacity may fluctuate. If there is concern or disagreement over your capacity to make your own decisions, the Guardianship Act 1987 (NSW) states that a medical certificate may be needed to establish whether your Enduring Guardian can exercise their authority.
When does my Enduring Guardianship appointment end?
An Enduring Guardianship appointment ends:
- When you die
- If you revoke the appointment
- If you marry after appointing an Enduring Guardian, unless you marry the Enduring Guardian. On marriage the appointment is automatically revoked or cancelled. If you wish to reappoint the Enduring Guardian, you need to complete a new form reappointing the person.
- If one of the guardians dies, resigns or becomes incapacitated (ie. cannot continue with the appointment) and they were appointed jointly unless you provide otherwise in the form.
- If the Guardianship Division, NSW Civil & Administrative Tribunal revokes the appointment of the Enduring Guardian.
- If the Tribunal makes a guardianship order which suspends any appointment of an Enduring Guardian.
How can I revoke my Enduring Guardainship 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.
Only the Guardianship Division, NSW Civil & Administrative Tribunal can make changes to your Enduring Guardianship appointment if you have lost the capacity to do this for yourself.
What happens if my Enduring Guardian dies, becomes incapacitated or wants to resign?
If the Enduring Guardian you have appointed dies, resigns, becomes incapacitated or can no longer continue in this role, you can make a new Enduring Guardianship appointment and appoint someone else to be your Enduring Guardian.
There is a set form of resignation that your Enduring Guardian should use. This form must be signed before an eligible witness.
If you no longer have mental capacity, the Guardianship Division, NSW Civil & Administrative Tribunal can order another person to be appointed as your Enduring Guardian. An application must be made to the Tribunal for this to be done.
Can an interstate or overseas Guardianship appointment be used in NSW?
If an Enduring Guardianship appointment was made in another Australian state or territory then it is automatically recognised in NSW. This does not apply to Enduring Guardianship appointments which are made overseas.