Enduring Guardianship Appointments in NSW

As at 28 October 2020

A Guardian is a person you choose to make decisions about your health and lifestyle in the event you cannot make these decisions for yourself. It is a legal appointment and must be made by you while you have the capacity to make the appointment. It is called an Appointment of Enduring Guardianship because it is designed to last until the end of your life, unless it is revoked or cancelled beforehand.

You can appoint someone under an Enduring Power of Attorney to make financial decisions on your behalf. This person is called an Attorney and can be the same person as your Guardian.

What can a Guardian make decisions about?

A Guardian can make decisions about:

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

These are commonly called ‘functions’ on an Enduring Guardianship document.

Who to appoint as your Guardian

Your Guardian should be someone you trust such as a spouse, family member or friend. Your Guardian can only make decisions about your health and lifestyle. You can appoint a Guardian as long as you are over 18, live in NSW and have decision-making capacity.

It is essential the person you appoint:

  • is willing to take on the role and is able to make decisions in difficult and emotional circumstances;
  • understands your needs, wishes, values and beliefs; and
  • is easy to contact when decisions need to be made.

You cannot appoint a professional person like your doctor or accommodation provider to be your Enduring Guardian. You also cannot appoint the Public Guardian as your Enduring Guardian.

Can you appoint more than one Guardian?

You can appoint more than one person to be your Guardian, but you need to make it clear on your appointment how you want them to make decisions: you can appoint them to make decisions together (‘jointly’), separately (‘severally’) or both of these (‘jointly and severally’). If you appoint two or more Guardians to act jointly, they will need to make every decision together and will need to agree on each decision.

You can also appoint one or more people as a substitute Guardian, who will only make decisions for you if your original Guardian(s) is no longer able to.

How do I appoint them?

There are forms that need to be completed stating who you are appointing, on what basis and what functions you are allowing them to make decisions about, and whether you place any limits on the functions.

You and your Guardian(s) and your substitute Guardian(s) will need to sign the forms in front of an eligible witness which includes a lawyer, a foreign lawyer, a clerk of the court of an approved employee of NSW Trustee and Guardian.

When does the Appointment of Enduring Guardian start and finish?

A Guardian only starts making decisions for you if you become unable to make them yourself. A doctor or specialist can be called on if it is uncertain whether your Guardian should start making decisions. An Enduring Guardianship appointment continues for as long as you need it unless:

  • you revoke (cancel) it while you have capacity;
  • your Guardian resigns, dies or is unable to carry out the role;
  • the appointment is changed or revoked by the Guardianship Division of NCAT or the Supreme Court;
  • at the end of your life.

Cancelling an Enduring Guardianship appointment

You can cancel an Enduring Guardianship appointment at any time as long as you have the capacity to do so. This is done by signing a Revocation of Enduring Guardianship form.

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