Guardianship
What is an enduring guardian?
An enduring guardian is someone you legally appoint to make personal or lifestyle decisions for you when you are not capable of doing this for yourself. You 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.
Why appoint an enduring guardian?
We all prefer to decide for ourselves where we live and what medical treatment and services we have. Unfortunately this is not always possible. Every day people are involved in accidents or become sick. Sometimes this can lead to them being unable to make decisions for themselves.
By appointing an enduring guardian you choose who you want to make decisions for you if you lose the capacity to do this for yourself. Your enduring guardian must act within the principles of the Guardianship Act 1987, in your best interests and within the law. You cannot give your enduring guardian a function or a direction which would involve them in an unlawful act.
Who can appoint an enduring guardian?
If you are over 18 years, you can appoint one or more people to be your enduring guardian(s). At the time you appoint an enduring guardian, you must have the mental capacity to understand what you are doing.
Who can be an enduring guardian?
The person you appoint as your enduring guardian must be:
- at least 18 years old
- someone you trust to make decisions in your best interests.
The enduring guardian cannot be a person who, at the time of 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 the above.
How many enduring guardians can I appoint?
You can appoint more than one enduring guardian. When appointing more than one enduring guardian, you should choose people who can cooperate with each other and who you trust to work together in your best interests. It is also important to consider their availability to make decisions on your behalf.
You can appoint your enduring guardians to act:
- jointly and severally (this means that the enduring guardians can make decisions together or separately),
- severally (this means that any one of the enduring guardians can make decisions independently of the other enduring guardian),
- or jointly (the enduring guardians must agree on all decisions).
What decisions can't an enduring guardian make?
An enduring guardian cannot consent to anything unlawful and 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 you strongly object to the enduring guardian's decisions, you or someone on your behalf can ask the Guardianship Tribunal to review the enduring guardianship appointment.
When does an enduring guardianship appointment end?
An enduring guardianship appointment ends:
- when you die
- if you revoke the appointment
- if you marry after appointing an enduring guardian. On marriage the appointment is automatically revoked or cancelled. If you wish to reappoint the enduring guardian, you need to complete a new form reappointing the person.
- if one of the guardians dies, resigns or becomes incapacitated and they were appointed jointly unless you provide otherwise in the form.
- if the Guardianship Tribunal revokes the appointment of enduring guardian. If the Tribunal makes a guardianship order that will suspend any appointment of an enduring guardian.
Power of Attorney
The Power of Attorney is a formal legal document in which you give to someone the power and authority to act on your behalf in relation to all financial matters. The person to whom the authority is delegated is known as your attorney.
The Power of Attorney may take either of two forms:
- In the event of incapacity and the inability to look after your own affairs, an enduring Power of Attorney will allow another person to act for you, make decisions in your interest and manage your assets.
- If you are temporarily absent from Australia or incapacitated for a period of time it is possible to appoint a restricted Power of Attorney which will allow the appointed person to act only for specific functions and/or purposes and usually for a specified period of time.
Careful consideration should be given to the person you appoint as your attorney. It should be someone that you trust and in whom you have confidence. Their ability to manage you affairs in your best interests is the critical factor in your decision.