As we age, we must plan for the future, including appointing an enduring guardian to make important health and lifestyle decisions if we lose capacity to do so. These choices include selecting a place to live, the services to use, and approving medical or dental treatment for people who are unable to make decisions for themselves. This includes people who have a disability, illness or injury that affects their decision-making ability.
In New South Wales, Australia the Guardianship Act 1987 governs the appointment of enduring guardians. The Act provides a framework for the rules on enduring guardianship. It also includes rules that financial managers must consider before making decisions on behalf of anyone.
Under the Act, in an enduring guardianship, an individual appoints an enduring guardian to make personal and lifestyle decisions for them when they are unable to make these decisions themselves.
What Is Enduring Guardianship?
Enduring guardianship is a legal arrangement in Australia where a person appoints someone else to make personal, health, and lifestyle decisions on their behalf if they lose the capacity to make those decisions.
An enduring guardian is someone who an individual appoints to make decisions on their behalf if they cannot make their decisions due to:
- illness,
- injury, or
- disability.
Enduring guardians must be able to understand the nature and effect of the Enduring Guardianship document. The same person has the legal authority to make personal, health, and lifestyle decisions, such as where a person lives, what medical treatment they receive, and who can visit them.
Who Can Be an Enduring Guardian?
The appointed enduring guardian must be:
- an adult (18 years or older)
- someone who the individual trusts, and who knows the wishes of the individual
- someone willing and able to take on responsibilities of an enduring guardian
- aware of the purpose and implications of the Enduring Guardianship document
- must not be related to anybody who charges the individual for housing, medical care, or services to support your daily activities.
According to the NSW Guardianship Act 1987, you cannot appoint the following people:
- A person under the age of 18
- A person who is a paid carer or health provider for the individual
- A person convicted of an offence involving dishonesty, fraud, or violence
- A person who is bankrupt or has been declared bankrupt in the past
It is essential to consider who to appoint as the enduring guardian, as they will have the authority to make important decisions about the individual’s health, lifestyle, and medical treatment. If the individual does not have anyone suitable to appoint as the enduring guardian, they can apply to the NSW Civil and Administrative Tribunal (NCAT) to appoint a public enduring guardian.
How Does the Process Work?
Appointing an enduring guardian is essential to ensure that your wishes are respected if you cannot make decisions for yourself. The process of selection involves the following steps:
- Choose your guardian. The first step is to choose the person you want to appoint. This should be someone you trust and who is willing to take on the responsibility of making decisions on your behalf.
- Complete the Enduring Guardianship Appointment Form. Once you have chosen your guardian, you must fill out the necessary details in the enduring guardianship appointment form.
- Sign the form. Once you have filled out the form, you must sign it in the presence of an eligible witness. The witness must be above 18 years old and cannot be your guardian or their relative.
- Have the form witnessed. Moreover, the eligible witness must also sign the form in your presence.
- Register the form. Register the completed and witnessed form with the NSW Civil and Administrative Tribunal (NCAT). There is a fee for lodging the form, which can be paid online or by mail. The fee required for the application is $220, as provided by the NSW Trustee and Guardian Department.
- Notify your guardian and keep a copy of the form. After registration, you should notify them about their appointment. You should also provide them with a copy of the registered form.
Enduring Power of Attorney
A power of attorney is a tool that future-proofs your interests, much like a Will. The individual granting the power of attorney is referred to as the principal, and the person chosen to represent them is referred to as the “attorney.” If you want it to remain effective even if you lose your mental capacity after making it, you must make an enduring power of attorney
In this situation, a specified person, such as a lawyer, must explain the concept of power of attorney to you and sign a certificate confirming that you understood that it will remain in effect even if you lose capacity.
A legal document known as an “enduring power of attorney” (EPA) enables you to designate a trusted someone to act on your behalf during your lifetime if you lose the mental capacity to do so. When you become incapable of handling your financial or property-related affairs, an enduring power of attorney typically comes into force.
An Enduring Power of Attorney is a legal document that specifies and appoints someone to handle your legal and financial affairs. It should:
- be made in advance while you have the mental capacity to do so;
- be witnessed by a prescribed witness (which may include an attorney, specific staff members of NSW Trustee & Guardian, Registrars of the Local Court, and others)
The Enduring Power of Attorney typically loses validity upon your death.
Once the enduring power of attorney is created, it can be used if you become unable to make decisions for yourself. This can happen due to illness, injury, or other circumstances that affect your ability to understand the nature and effect of decisions.
Moreover, the typical tasks performed by an enduring power of attorney include paying bills, signing contracts, buying or selling property, managing finances, and accessing bank accounts.
Finally, you must store your Enduring Guardian document in a safe location for it to be accessible when the need arises. Furthermore, you can provide a copy to your solicitor and the person or organisation you’ve delegated as enduring power of attorney.
Benefits of Enduring Guardianship
Some of the benefits of enduring guardianship include:
Choice.
By appointing an enduring guardian, you get to choose who will make decisions about your health and lifestyle if you can no longer do so. This means you can choose someone you trust to make decisions in your best interests.
Clarity.
Enduring guardianship will ensure your wishes are clear about your health, lifestyle, and medical treatment. This can help prevent disputes between family members about what you would have wanted.
Control.
An enduring guardian will help you retain some control over your life even if you can no longer make decisions for yourself. You can choose what decisions your guardian can make and what decisions they cannot make.
Appointing an enduring guardian is an essential step in planning for your future. It ensures that there’s someone you trust to make decisions on your behalf if you cannot. Having these conversations with your loved ones is essential. Seek legal advice if you are unsure about the process.
We’re Here to Help You
JB Solicitors is ready to cater to your needs throughout the process of appointing an enduring guardian and/or enduring power of attorney and help you get through difficult and emotional circumstances. Our team of competent lawyers can help you understand why appointing an enduring guardian is essential and beneficial.
Contact us today.
