Why appoint an enduring guardian?
Every day, people are involved in accidents or become ill, and often this can lead to them being unable to make decisions for themselves.
An enduring power of attorney permits an attorney to make decisions about all of your money and property if you are not capable of doing this for yourself. A power of attorney does not permit an attorney to make lifestyle decisions for you.
Usually, lifestyle decisions are made by your immediate family. However, a decision made by a family member who is not your spouse or de facto spouse may not have legal force if it is not something that is specifically permitted by Part 5 of the Guardianship Act (which deals only with certain medical and dental procedures – lifestyle decisions include so much more than that).
In certain circumstances, the Guardianship Act permits for someone other than your immediate family, who has had your care (other than for payment), to be the person who can make decisions about certain medical and dental procedures (referred to as the “person responsible”). That may not be what you want.
For example, if your spouse dies and you have children, you would expect your children to be entitled to make those decisions about what medical and dental procedures will be administered to you. However, if you are in care of some form other than from your children, those decisions could end up being made by someone outside your family.
While Part 5 of the Guardianship Act may give powers to your spouse or defacto spouse and possibly to your children, it only covers certain medical and dental procedures. Therefore, reliance on the Act alone may not be enough.
You can ensure that someone has the power to make all of your lifestyle decisions by appointing a guardian.
What sort of decisions can an enduring guardian make?
You can give your enduring guardian as many or as few functions as you like.
You may also give the guardian directions about how to exercise the particular decision making function.
The lifestyle decisions which a guardian may make include where a person should live, what services they should receive or what medical and dental treatment the person might need.
A guardian can consent to minor and major medical and dental treatments except the following treatments which only the Guardianship Tribunal can consent to:
- namely sterilisation (which includes vasectomy and tubal occlusion); termination of pregnancy, aversives (mechanical, chemical or physical);
- any new treatment that has not gained the support of a substantial number of doctors or dentists specialising in the area;
- use of medication that affects the central nervous system when dosage, duration or combination is outside accepted norms and androgenen-reducing medication for behavioural control.
What sort of decisions is an enduring guardian unable to make?
An enduring guardian cannot make a will for you, vote on your behalf, consent to marriage, manage your finances or override your objections, if any, to medical treatment.
If at the time decisions are made by your enduring guardian to which you strongly object, you can take your complaint to the Guardianship Tribunal.
What powers must I give my guardian?
If you appoint someone as your guardian, you will be giving them the power to.
- to decide where you live;
- to decide what health care you receive;
- to decide what other kinds of personal services you receive;
- to consent to the carrying out of medical or dental treatment on you (in accordance with Part 5 of the Guardianship Act 1987).
It is most important that you also give your guardian the power to consent to any practice or intervention that has the effect of restricting your rights or freedom of movement.
IMPORTANT
The last power is becoming an increasingly important power to give your guardian. The policy of some care providers is that unless this power is in the guardianship appointment of a patient, the patient will not be admitted to their facility.
Who can appoint an enduring guardian?
If you are over 18 years with full capacity to understand what you are doing, you can appoint one or more people to be your enduring guardian.
Who can be an enduring guardian?
An enduring guardian must be at least 18 years old and should be someone you trust to make decisions in your best interest if you become incapable of making decisions for yourself.
Your guardian must act within the principles of the Guardianship Act, in your best interests and within the law.
The appointed guardian cannot be a person providing treatment or care to you on a professional basis at the time of appointment.
Who should I appoint?
If you are married, your spouse is normally the appropriate person to appoint.
If you are not married, normally your parents, a family member or trusted friend but it really depends on your circumstances and those of your parents, family or friend. If you need to appoint someone, you should do it now while you can.
You should also appoint someone you trust to make those decisions for you as a substitute when the person you appoint dies of loses capacity. That person will normally be a family member, relative or friend and you should make that appointment now while you can.
More than 1 Guardian
The Guardianship Act permits the appointment of 1 or more guardians. If you appoint 2 or more guardians, you must appoint them either jointly or if you give them separate functions, you can appoint them separately.
How do I appoint an enduring guardian?
To appoint an enduring guardian, you need to complete a Form of Appointment of Enduring Guardian.
Substitute appointments are also permitted by the Act and you should consider appointing substitutes.
Your signature to the Form of Appointment of Enduring Guardian and the signature of the people you appoint must be witnessed by a solicitor, barrister or clerk at the Local Court. It does not have to be the same witness.
Before appointing someone, you will need to discuss it with them, as they too will need to sign the form of appointment.
You may also want to discuss the appointment of the guardian with members of your family so they know what you have done and why. The ‘why’ can be very important in managing family harmony.
Can I change my mind?
While you are capable of making your own decisions, you can revoke the appointment of an enduring guardian.
Revocation of the appointment is made by you completing a set Form of Revocation of Appointment. You must provide the enduring guardian with written notice of the revocation.
You can appoint a new enduring guardian, or change the functions or directions given to your enduring guardian, by completing a new form of appointment.
Only the Guardianship Tribunal can make changes to the appointment if you have lost capacity to do this yourself.
What if someone else has concerns about the actions of my guardian?
Anyone with a genuine concern for your welfare can apply to the Guardianship Tribunal for a review of the appointment.
The Guardianship Tribunal can revoke the appointment or confirm it.
The Guardianship Tribunal may also change the functions in the appointment or make a guardianship order.
The Guardianship Tribunal does not supervise guardians and will only become involved if it receives an application for you or receives information which leads it to initiate a review of the person appointed as your enduring guardian.
When does the appointment of a guardian take effect?
The appointment of an enduring guardian takes effect only if you become unable to make your own personal or lifestyle decisions.
The certificate of a medical practitioner can be relied on to establish that a person has lost capacity and as a result the appointment of an enduring guardianship takes effect.
When does guardianship end?
You can revoke an enduring guardianship appointment by completing a Form of Revocation of Appointment of Enduring Guardian.
An enduring guardianship appointment is suspended if the Guardianship Tribunal makes a guardianship order or an order to suspend the appointment.
What should I do with the appointment form?
You should:
- Keep the appointment form in a safe place.
- Tell someone else where it is and who is your lawyer.
Do you want to leave an advance care directive?
In addition to appointing someone as your guardian, you may want to consider completing a set of instructions that sets out your wishes about your medical treatment and health care.
If you don’t do this, it is possible that no one will know how you want these things dealt with.
If you do leave an advance care directive and you have also appointed a guardian, your guardian will be bound by your directive.
These directives only operate when you lose your capacity.
In NSW, there is no specific law that permits you to have a directive. Instead, having a written directive is an extension of your legal right to make decisions about those things for yourself.
We have a standard directive that is based on other state laws and which you might like to use. The NSW Government has a very sensible form of directive that is available on the website of NSW Health.
Disclaimer
The information in this article is general in nature and is not intended as legal advice. You should not do or fail to do anything in reliance on information in it. We do not accept any responsibility for any loss that you suffer if you do. You should seek professional advice before you do anything about the issues set out in this article.
