Appoint an Enduring Guardian

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• What is an Enduring Guardian?

  An Enduring Guardian can make decisions for you in areas such as accommodation, health and services, if you lose the capacity to make your own decisions at some time in the future. An Enduring Guardian cannot make decisions about your money or assets. Find out more in the booklet Enduring Guardianship in NSW. You can make an Enduring Power of Attorney to appoint someone to manage your financial affairs.

  The appointment of your Enduring Guardian takes effect only if you lose the capacity to make your own major personal decisions.

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• What decisions can an Enduring Guardian make?

  An Enduring Guardian can make decisions in the areas, or functions, specified in their appointment. The most common functions are:

  • accommodation
  • health care
  • medical/dental consent
  • services

  There are some decisions an Enduring Guardian cannot make:

  • decisions that are against the law e.g. euthanasia
  • making or altering a Will
  • consent to medical or dental treatment when the person is objecting
  • special medical treatment

  For more information about substitute medical and dental consent you can contact the Public Guardian Information Support Branch or go to Substitute Consent: What the law says.

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• How do I appoint an Enduring Guardian?

  If you want to appoint an Enduring Guardian, you must complete a form of appointment. You can appoint more than one Enduring Guardian and appoint them with different functions.

  The person(s) you appoint as your Enduring Guardian(s) must also sign the form to show that they have agreed to be your guardian. All signatures on the form must be witnessed by an eligible witness. An eligible witness is a legal practitioner, Registrar of the Local Court, or approved officer from NSW Trustee & Guardian.

  When deciding on whom to appoint, you should consider who would best understand your values and wishes, and who would have the skills to make good decisions for you.

  NSW automatically recognise Enduring Guardianship Appointments made in other states and territories.

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• Where should I keep my Enduring Guardianship?

  There is no requirement to lodge your Enduring Guardianship with any agency or office. There is no register of people who have been appointed an Enduring Guardian. Your Enduring Guardianship appointment is an important legal document that should be kept with your other planning ahead documents.

  NSW Trustee & Guardian offers secure storage of all your planning ahead documents in the Will Safe. For a one off fee you can store all of your planning ahead documents safely and securely. This ensures your Enduring Guardianship can be easily accessed by your Enduring Guardian when required.

  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 may be required at some time in the future to produce evidence of their appointment.

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• Can I change my Enduring Guardian?

  While you have capacity, you can revoke (cancel) or change your Enduring Guardianship appointment by filling in a revocation form, having it witnessed and giving it to your Enduring Guardian(s).

  If you do not have capacity and there is a problem with your Enduring Guardian, anyone who has a genuine interest in your life can make an application to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) to review the appointment. The Guardianship Division has the power to revoke or change the appointment.

  Ending an Enduring Guardianship appointment

  Enduring Guardianship ends if the person who appointed the Enduring Guardian dies. An Enduring Guardianship also ends when it is revoked by:

  • the person who made the appointment (while they have capacity to do so); or
  • the Guardianship Division NCAT or
  • the Supreme Court.

  An Enduring Guardianship appointment is automatically revoked if you marry after making the appointment. A joint Enduring Guardianship appointment will end if one of the joint Enduring Guardians dies, resigns or becomes incapacitated unless you have stated clearly in the form of appointment that you want it to continue beyond these events. Your Enduring Guardian can also resign from the role by completing a notice of resignation as Enduring Guardian form.

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• What is the role of the Guardianship Division NCAT?

  The Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) can review the appointment of an Enduring Guardian on its own motion or at the request of anyone the tribunal considers has a genuine concern for the welfare of the person.

  When reviewing the appointment of an Enduring Guardian, the tribunal can suspend, revoke, confirm or vary the appointment of an Enduring Guardian. It can also declare the appointment has effect. The tribunal can appoint a substitute Enduring Guardian if the original Enduring Guardian has died, resigned or become incapacitated. The tribunal can also approve the resignation of an Enduring Guardian.

  Financial management and guardianship orders have a significant legal effect and an appointed substitute decision maker can overrule the person’s decisions if necessary. The tribunal only makes orders when all other attempts to resolve the situation have failed. Some of the things to consider before making an application to the tribunal include:

  • can additional informal supports be provided to the person?
  • could extra services assist in resolving the person’s difficulties?
  • could mediation be used to resolve conflict? Community Justice Centres provide professional mediation services free of charge.
  • is there a Person Responsible who can make decisions about medical treatment?

  Before a hearing, the Guardianship Division NCAT will require evidence about the person’s disability, incapacity and need for decisions to be made. Visit the Guardianship Division of the NSW Civil and Adminstrative Tribunal website for more information.

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• I don’t want my kids to worry about me if I can’t manage at home. What can I do?

  Planning ahead includes thinking about a time when you might need help with everyday life, such as shopping or housework. You may need extra care at home, or you might need to move to a nursing home or hostel. Appointing an Enduring Guardian is a good way to plan ahead for possible changes in your ability to manage everyday life.

  You can appoint one or more Enduring Guardians to make decisions about your care, accommodation and health needs if you ever lose the capacity to make these decisions yourself. You can talk to your Enduring Guardians about your wishes, and you can write down things that are particularly important to you in your Enduring Guardianship appointment form.

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