An enduring guardian is someone you choose to make personal or lifestyle decisions on your behalf when you are not capable of doing this for yourself. A guardian cannot make contractual or financial decisions for you – a General or Enduring power of Attorney is used for that purpose.

You can choose which decisions you want your enduring guardian to make. These are called functions. You can direct your enduring guardian on how to carry out the functions.

Who can be an enduring guardian?

The person you appoint as your enduring guardian must be at least 18 years old and someone you trust to make decisions in your best interests. The appointed enduring guardian cannot be a person who, at the time of the appointment, provides medical treatment or care to you on a professional basis or provides accommodation services or support services for daily living on a professional basis or is a relative of one of these. Most people appoint children, spouses, siblings or parents. You can appoint more than one person – jointly (acting together) or severally (individually).

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 can delete the functions you do not want your enduring guardian to have and add others if you wish. For example, you can give them the power to decide on your health care but not where you live. You may give your enduring guardian directions about how to exercise the decision-making functions you give them. For example, you can direct your enduring guardian to consult with a particular close friend or family member before making a decision.

The term “Living Will” is sometimes given to an appointment of an enduring guardian that contains very specific directions in relation to the care and treatment that a person wishes to receive, or the types of care that a person does not want to receive (including terminating life support and not consenting to certain types of treatment). These are also referred to as “Advance Care Directives” or “Advance Health Care Directives”.

When does it take effect?

The appointment of your enduring guardian takes effect only if you become unable to make your own personal or lifestyle decisions. Your enduring guardian must act within the principles of the Guardianship Act 1987 (NSW), in your best interests and within the law. You cannot give them a function or direction which would involve them in an unlawful act.

When does it end?

Enduring guardianship ends when you either die or when you revoke the appointment (and provided you still have the requisite mental capacity to revoke it). A joint enduring guardianship will also end if one of the guardians dies, resigns or become incapacitated unless you provide otherwise on the document creating the appointment.

What role can the Guardianship Tribunal play?

An enduring guardianship appointment is suspended if the Guardianship Tribunal makes a Guardianship Order. The Tribunal may also review or revoke an appointment if they feel that the enduring guardian is not making appropriate decisions on behalf of the person who granted it.

Contact us

We can assist you to prepare an enduring power of attorney with or without advance care directives (living will) on short notice and are able to attend on you in hospital for that purpose if required.

Call one of our Estate Planning Lawyers for free initial telephone advice in relation to the appointment of an enduring guardianor an enduring power of attorney on (02) 9525 8688.