What is an Enduring Guardianship?
An Enduring Guardianship is a document signed by you that appoints a trusted family member or friend (referred to as an Enduring Guardian), to act on your behalf to manage your health and lifestyle affairs according to your wishes. Your Enduring Guardian is given the authority to make health, medical and lifestyle decisions on your behalf in the event you are unable to do so yourself.
It is important that you trust the person you appoint as your Enduring Guardian to make appropriate decisions on your behalf. We strongly recommend that you involve this person in discussions about your views and decisions you would make in certain situations (for example if you were to be placed on Life Support).
An Enduring Guardian can only make health, medical and lifestyle decisions. Should you want someone to make financial decisions on your behalf you should make an enduring Power of Attorney – we recommend both documents in most situations.
If you appoint more than one Enduring Guardian, you will need to specify whether they are appointed to act jointly, severally or jointly and severally. Enduring Guardians who are appointed jointly are only able to make decisions if they all agree, while Enduring Guardians who are appointed severally or jointly and severally are able to make decisions independently of each other.
Each Enduring Guardian must accept their appointment in writing for it to be effective.
Things to be aware of:
- If you marry after you appoint an Enduring Guardian then the appointment will automatically be revoked (unless you married your Enduring Guardian);
- Your Enduring Guardian can resign at any time, by giving you notice in writing. However if this occurs after you have lost capacity to make decisions the Enduring Guardian can only resign with the approval of the NSW Civil and Administrative Tribunal;
- Enduring Guardianship appointments are not usually recorded on any public register. You should therefore ensure that key people are aware of the appointment so they can contact the Enduring Guardian if required. You should provide a copy of the Enduring Guardianship appointment to your Enduring Guardian and keep a copy in a safe place (such as in safe keeping at your solicitor’s office).
Your spouse or partner is tragically injured in a car accident and suffers brain injury. He or she needs to move to a facility where appropriate care is available. Your spouse or partner’s brother cannot accept that this is necessary and opposes the move. As your spouse or partner no longer has the mental capacity to make his or her own decision, in the absence of an Enduring Guardianship, you would need to apply to the NSW Civil and Administrative Tribunal (NCAT) or Supreme Court for appointment as your spouse’s Guardian. Your spouse or partner’s brother could also apply and may even succeed, thus taking control of the care of your loved one. This is a costly, expensive and stressful process that can be avoided simply by appointing an Enduring Guardian of your choice.
Your Enduring Guardian cannot make decisions about financial matters – these decisions can only be made by an attorney appointed under a valid Power of Attorney or by the New South Wales Civil and Administrative Tribunal or the Supreme Court.
See further information in our fact sheet “What is a Power of Attorney?”