What happens if you lose capacity to manage your own affairs and can no longer make decisions regarding your health and medical or dental treatment, your lifestyle, the personal services you receive and where you live? Who will decide such things for you?

Sadly, people are often so badly affected by sickness, injury, disability or cognitive impairment that they don’t have capacity to make their own decisions about such matters.  

For example, important and difficult decisions will often have to be made at the end of our lives about what medical treatment we are to receive. This could arise if we are in the final stages of a terminal illness or if we are in a coma and unlikely to recover. At times like this, it is quite likely that mental or physical incapacity will deprive us of the ability to make our own decisions.

It is not only the old or the frail that this applies to; serious illness or accident can strike us at any age and leave us dependent on others.

At times like this, someone else has to step in and make those decisions for us on our behalf and they will need to show other people (e.g. in a hospital or an aged care facility) that they have legal authority to make those decisions.

Of course, once we have found ourselves in such a situation, we will probably no longer have capacity to make our own decisions.  But by then it will be too late for us to be able to decide on who we would want to have making those important decisions for us. 

When that happens, in NSW you will have to hope that someone cares enough to seek to be appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) to take charge of our affairs, or we might find that a government authority like the NSW Trustee and Guardian is appointed to manage our affairs. Matters will then be out of our hands.

To avoid that outcome, the solution is to make our own appointment of a suitable and trusted person to legally take charge of decision-making about such matters ahead of time whilst we still have capacity to do so.

In NSW, that means appointing an Enduring Guardian.

In this Basic Guide we address some commonly asked questions about Enduring Guardianship, but it is always best to speak to a lawyer about what to do.

What is an Enduring Guardian?

An enduring guardian is a person you appoint to make decisions on your behalf about the sorts of matters referred to above when you are not capable of doing this for yourself. You can appoint one or more people to act as your guardian(s). You can choose what sorts of decisions you want your enduring guardian to make, and you can give his or her directions about how you want them to make certain decisions and to carry out the functions you allocate to them.

Who can appoint an Enduring Guardian?

Anyone over the age of 18 who has cognitive capacity to understand and manage their own affairs can appoint one or more people to be their guardian for when the time comes that they lose capacity to do so.

When does enduring guardianship end?

An appointment of an enduring guardian ends when you die or the appointed guardian dies, or if you revoke the appointment, or if NCAT makes a guardianship order or suspends the appointment.

What kind of decisions can an enduring guardian make?

Your enduring guardian can be given as many or as few functions as you like, and you can give the guardian specific directions about how you want them to make decisions and carry out their functions. So, for example, you could direct your guardian to consult with a particular person when making particular decisions. Or you could set out how you want your guardian to make end-of-life decisions, such as requiring palliative care in certain situations. But you can’t authorise your guardian to override your objection to a sort of medical treatment. Only NCAT has that authority.

What sort of decisions is an enduring guardian not allowed to make?

Some kinds of decisions can’t be made by an enduring guardian. For example, your enduring guardian can’t make a Will for you, can’t vote on your behalf, can’t consent to marriage, and can’t manage your finances, or sell, lease or mortgage your property or override your objections, if any, to medical treatment.

Is an enduring guardianship appointment different from an enduring power of attorney?

Yes, in NSW an enduring guardian and an enduring power of attorney are given different powers over different matters. 

If you have appointed someone under an enduring power of attorney, he or she can make decisions about your financial affairs and your property and they can represent you in legal proceedings, which are things an enduring guardian is not authorised to do. 

Conversely, someone appointed under an enduring a power of attorney in NSW is not authorised make decisions about another person’s medical or dental treatment, or about their lifestyle or personal services they receive, or about where they live. 

That is why in NSW you need to appoint both an enduring guardian and also an enduring power of attorney to make sure your important decisions are properly covered. In other states such as Queensland, an attorney can be appointed in the one instrument to make all such decisions.

Who can you appoint to be an enduring guardian?

Although you can appoint anyone over the age of 18 to be an enduring guardian, ideally you would choose someone sensible and trustworthy, who has sufficient relevant life experience and maturity to make appropriate decisions in your best interests. Your guardian must act in accordance with the requirements of the Guardianship Act and according to the law. You cannot give your guardian a function or a direction which would involve them in committing an unlawful act.

The guardian you appoint cannot be a person providing treatment or care to you on a professional basis at the time of appointment. You can also appoint more than one person. If you appoint more than one enduring guardian, you can direct them to act jointly or separately.

How do I appoint an enduring guardian?

You should always discuss the appointment with the person you would like to appoint as your guardian. You need to ensure beforehand that sure they are willing to take on the responsibility of making important decisions for you when you can no longer make them for yourself. Ideally, you should also think about and discuss in some detail with them the functions you want them to perform. This will help to ensure that your guardian clearly understands your wishes and any directions you may want to give to them in carrying out their functions.

It can also be a good idea to discuss the appointment with other important people in your life. 

Once you have discussed the appointment with these people, we encourage you to promptly make an appointment to see your lawyer at Craddock Murray Neumann Lawyers. Your lawyer will further explain enduring guardianship, prepare the appropriate documentation and witness your signature.

What should I do with the document making the enduring guardianship appointment?

It is a good idea to keep the appointment form in safe custody at Craddock Murray Neumann Lawyers. You should also tell someone else (particularly the person(s) you appoint) where the original document is kept. You can also give a copy to your guardian.

When does the guardianship appointment take effect?

The appointment of your enduring guardian takes effect only if you become incapable of making your own personal and lifestyle decisions.  Your guardian may need to seek the opinion of a medical practitioner in order to establish that you have in fact lost capacity.

What if I change my mind?

As long as you retain capacity to make decisions about your own affairs, you can revoke an appointment of an enduring guardian. You must also notify the enduring guardian in writing that their appointment has been revoked. Only NCAT can make changes to the appointment if you have lost the capacity to do this for yourself.

What if someone is concerned about the actions of my enduring guardian?

If you have lost capacity to make your own decisions and someone is concerned about your welfare because of the actions (or inaction) of your enduring guardian, a person with a genuine interest in and concern for your welfare can ask NCAT to a review of the appointment. NCAT can then revoke or confirm the appointment. NCAT can also appoint someone else instead. 

NCAT does not get involved in supervising what enduring guardians do. NCAT will only get involved if it receives an application from a concerned person, or if it receives information leading it to initiate a review of your appointment in your interests.

For more information on how our Wills & Estate lawyers can help you please contact our team at craddock@craddock.com.au.