What is an Enduring Guardianship?
In the event that somebody anticipates losing the capacity to make their own decisions about their health or lifestyle (such as medical decisions, financial decisions, general medical care or other important decisions such as estate planning), they are able to appoint an enduring guardian, usually a carer, family member or close friend, to make such decisions on their behalf.
An enduring guardianship is a legal document that does require a number of forms to be completed, which sets out the scope of decision-making the enduring guardian can make, including any limits. In order to validly appoint an enduring guardian, the enduring guardianship documents will need to be signed and witnessed by a lawyer, a clerk of a court or member of a tribunal, or the NSW Trustee and Guardian.
The appointment of an enduring guardian will generally last until that person passes away, unless the enduring guardianship is cancelled or revoked prior.
In NSW, the appointment of enduring guardians is governed by the Guardianship Act 1987 (NSW), which generally sets out how and when guardians can be appointed by adults with incapacity to make important decisions themselves.
What decisions can an enduring guardian make?
A person may appoint an enduring guardian to make a number of different kinds of decisions on their behalf, including:
- lifestyle decisions (such as where you will live)
- treatment decisions and medical decisions (including the ability to consent to medical treatment, dental treatment and health care)
- other important decisions about the person’s health care or lifestyle
The guardian’s ability to make these decisions will only commence when and if the individual loses the mental capacity to make important decisions themselves.
Note that an enduring guardian is not able to make financial decisions or estate planning decisions on behalf of the person. Such decisions will need to be made by a financial manager appointed under a financial management order.
How are Guardianship Orders made?
In New South Wales, the NSW Civil and Administrative Tribunal (NCAT) is able to make an order in favour of enduring power of guardianship, if the tribunal is satisfied that an individual lacks the mental capacity to make important decisions about their health, accommodation and lifestyle.
Generally, an appointment will only be made in circumstances where the relevant person lacks the support network (such as family members, loved ones, informal carers etc.), which would be able to support the person generally.
The Tribunal is only able to appoint an enduring guardian for people who are over 18 years of age and who reside in NSW.
When can the appointment of an enduring guardian end?
Once appointed, an enduring guardian is able to continue for as long as the guardianship order is necessary. This is to be distinguished from regular guardianship orders which under section 18 of the Guardianship Act, should not exceed 1 year, and a renewed order should not exceed a period of 3 years. This allows the Tribunal to have a degree of oversight over the necessity of regular guardianship orders.
Generally, an enduring guardianship will only end in the event that:
- the person revokes or cancels the enduring guardianship while they still have the mental capacity to do so;
- the Guardian passes away or loses the capacity to carry out the appointment themselves, or resigns;
- NCAT or the Supreme Court modifies or revokes the appointment; or
- when the person dies.
An enduring guardianship is able to be cancelled by the appointing individual at any time, provided that person still has the mental capacity to do so. This is carried out by completing a Revocation of Enduring Guardianship form.
How is enduring guardianship different from enduring power of attorney?
While enduring guardianship orders allow for the making of health care, medical and lifestyle decisions, a person appointed as enduring power of attorney allows a person to make financial decisions and legal decisions on that person’s behalf.
Like enduring guardianship, enduring power of attorney is aimed at allowing a person to have comfort in the making of important decisions after they have lost the capacity to make such decisions for themselves.