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Enduring Guardian Appointments

What is an Enduring Guardian?

  • There is always the risk that we may lose the capacity to make decisions for ourselves one day. The risk is not limited to the elderly; it can happen while we are young, for example, as a result of a sudden illness or an accident or injury.
  • By appointing an Enduring Guardian, you are appointing one or more trusted people to make medical, health and lifestyle decisions for you if you are not capable of making those decisions for yourself.
  • The appointment will only have effect if you do not have capacity and are unable to make decisions for yourself and will only continue to apply while this remains the case.

How do I appoint an Enduring Guardian?

  • In NSW, an Enduring Guardian is appointed in a legal document called an ‘Appointment of an Enduring Guardian’.
  • McIntrye Legal has expertise in drafting these documents.

Do I need to appoint an Enduring Guardian?

  • We encourage every client over the age of 18 to consider appointing an Enduring Guardian. The consequences of not having an Enduring Guardian can be extremely stressful, expensive and undesirable.
  • You can only appoint an Enduring Guardian if you have capacity, so it is important to do so while you are healthy and able to make decisions for yourself.

What will happen if I lose capacity and haven’t appointed an Enduring Guardian?

  • If you lose capacity without appointing an Enduring Guardian then you will not have anyone with authority to make medical, health and lifestyle decisions for you.
  • You cannot appoint an Enduring Guardian once you have already lost capacity.
  • Instead, someone else will need to make an application to the Guardianship Division of the NSW Civil & Administrative Tribunal on your behalf to have a guardian appointed for you. This can be a very stressful, time-consuming and expensive exercise for your family, especially if they are already struggling with the loss of capacity of someone they love. In addition, the Tribunal may not appoint the person who you would want to be making these decisions for you.
  • It is much more desirable and cheaper for you to appoint an Enduring Guardian who you trust while you have the capacity to do so.

What sort of decisions is an Enduring Guardian authorised to make?

Typically, an enduring guardian is authorised to:

  • decide where you live;
  • decide what health care you receive;
  • decide what other kinds of personal services you receive; and
  • consent to the carrying out of medical or dental treatment on you.

However, it is possible to give specific directions to your enduring guardian or to add to or restrict the areas of your life in which the guardian can make decisions. We have expertise to assist you with drafting an Appointment of an Enduring Guardian which is suitable to your circumstances.

Who should I appoint as my Enduring Guardian?

  • It is important that you trust the person you appoint as your Enduring Guardian to make appropriate lifestyle decisions on your behalf.
  • You can appoint more than one guardian if you wish, and if so, their appointments can be joint (which means they must act together) or joint and several (which means the guardians can act independently of each other).
  • Where possible, we always recommend you appoint a substitute guardian who can act in the event that your first appointed guardian is unable to do so (eg. due to death or incapacity).
  • You should inform your Enduring Guardian of your wishes about lifestyle decisions and involve them in discussions about your views or goals. If these change, it is important to let your Enduring Guardian know.

How can we help?

We can:

  • meet with you (at a time and place convenient to you) to discuss your needs in relation to appointing an Enduring Guardian
  • provide you with practical advice to help guide you with making decisions relating to the appointment of an Enduring Guardian
  • draft an Appointment of an Enduring Guardian which is right for you. This includes suggesting some additions and restrictions which you may like to include in the Appointment to protect you and ensure your wishes are respected
  • provide you with written advice in relation to the operation of an Appointment of an Enduring Guardian
  • meet with you (at a time and place convenient to you) so you can execute your Appointment of an Enduring Guardian and we can witness your execution. The document must be signed in the presence of a solicitor or other eligible witness. Your enduring guardians must also sign the document in the presence of a solicitor or other eligible witness
  • store your executed document in safe custody in our secure safe
  • review and update an Appointment of an Enduring Guardian where appropriate to reflect changes in your circumstances or wishes.