An important part of Estate Planning is the appointment of an Enduring Guardian.
Whilst you would prefer to decide for yourself where to live and what medical treatment and services you have, this is not always possible. Everyday people are involved in accidents or become sick and this can sometimes lead to them being unable to make decisions for themselves.
Under the Guardianship Act you can appoint an Enduring Guardian to make decisions for you if you lose the capacity to do this for yourself.
What is an Enduring Guardian?
An Enduring Guardian is someone you chose to make personal or lifestyle decisions on your behalf when you are not capable of doing this for yourself. You chose which decisions you want your Enduring Guardian to make. These decisions are called functions. You can direct your Enduring Guardian on how to carry out the functions.
Who can appoint an Enduring Guardian?
If you are over 18 years, you can appoint one or more people to be your Enduring Guardian. You must have the capacity to understand what you are doing at the time you appoint an Enduring Guardian.
Who can be an Enduring Guardian?
The person you appoint as your Enduring Guardian must be: –
- at least 18 years old.
- someone you trust to make decisions in your best interests.
The appointed Enduring Guardian cannot be a person who, at the time of appointment: –
- provides medical treatment or care to you on a professional basis; or
- provides accommodation services or support services for daily living on a professional basis; or
- is a relative of one of the above.
What sort of decisions can an Enduring Guardian make?
You can give your Enduring Guardian as many or as few functions as you like. You may give directions to your Enduring Guardian about how to exercise the decision-making functions you give them.
For example, you can direct your Enduring Guardian to consult with a close friend that you have appointed before making a decision. If your Enduring Guardian has a health care function, they will be able to see your medical records to help make decisions for you.
What decisions can the Enduring Guardian NOT make?
An Enduring Guardian can not consent to anything unlawful and cannot: –
- Make a Will for you;
- Vote on your behalf;
- Consent to marriage;
- Manage your finances (you will need an Enduring Power of Attorney for this – refer to our article titled “Power of Attorney – what is it and when might I need one? and Power of Attorney”); or
- Override your objections, if any, to medical treatment.
If at the time decisions are made by your Enduring Guardian to which you strongly object, the matter can be brought to the Guardianship Tribunal. Further, an application must be made to the Guardianship Tribunal to authorise medical treatment overriding your objections. Also, only the Tribunal can consent to certain “special” medical treatments.
What principles guide an Enduring Guardian?
Your Enduring Guardian must act within the principles of the Guardianship Act, in your best interests and within the law. You cannot give your Enduring Guardian a function or a direction which would involve them in an unlawful act.
How many Guardians can I appoint?
You can appoint one or more persons as an Enduring Guardian. If you appoint more than one Enduring Guardian, you can direct them to act jointly or separately (i.e. severally).
Can I change my mind?
While you are capable of making your own decisions, you can revoke the appointment of an Enduring Guardian. To do this you need to complete a Revocation of Appointment of Enduring Guardian form. An eligible witness will need to witness you signing this form and you also have to advise the Enduring Guardian in writing that their appointment has been revoked. You can then appoint a new person as your Enduring Guardian, or change the functions of or directions given to your Enduring Guardian. For this purpose, you will need to complete a new form of appointment. Only the Guardianship Tribunal can make changes to the appointment if you have lost the capacity to do this for yourself.
What happens if I get married?
If you marry after appointing an Enduring Guardian, the appointment is automatically revoked or cancelled. You will need to complete a new application form if you wish to reappoint the Enduring Guardian.
What if someone is worried about what my Enduring Guardian is doing?
An application can be made to the Guardianship Tribunal for a review of the appointment if an interested person is genuinely concerned for your welfare and feel that your Enduring Guardian is not making appropriate decisions on your behalf. The Tribunal can revoke the appointment or confirm it. The Tribunal may also change the functions in the appointment or make a guardianship order. Enduring Guardians are not supervised by the Tribunal. The Tribunal will only act if it receives an application from a concerned person or receives information which leads it to review the Enduring Guardian appointment.
What happens if my Enduring Guardian cannot continue?
If the person you have appointed dies, resigns or become incapacitated, the Guardianship Tribunal can, in limited circumstance, order another person to be appointed as Enduring Guardian on your behalf. Someone will need to lodge an application on your behalf.
When does an Enduring Guardianship end?
Enduring Guardianship ends when you die or when you revoke the appointment.
How do I appoint an Enduring Guardian?
We suggest that you discuss with Rockliffs Lawyers the appointment of your chosen Enduring Guardian who can prepare the forms for the appointment of an Enduring Guardian and ensure that same is properly signed and witnessed to be effective.