As mentioned in the previous chapter, a power of attorney, whether enduring or otherwise, enables your attorney to make only financial decisions on your behalf. To enable personal, health or lifestyle decisions to be made, you should appoint an enduring guardian. This is a legally binding appointment under the Guardianship Act 1987 (NSW).
What can an enduring guardian do?
Any legally competent person over the age of 18 can appoint a guardian (or more than one guardian) to make personal, health and lifestyle decisions on their behalf should they lose the physical or mental capacity to make their own decisions. Someone making such an appointment is known as the appointor.
The decisions that could be made on your behalf include:
- where you will live
- what medical or dental treatment you are to receive.
If a person objects to medical treatment, an enduring guardian cannot override them.
An enduring guardian appointment takes effect only when you are no longer capable and are ‘a person in need of a guardian’ under the Act (section 6A). If more than one guardian is appointed, you can direct that they make all or certain decisions jointly, or that different guardians have responsibility for different decisions. The appointment can also specify what functions the guardian is to exercise and any other conditions or limitations you wish to impose. It is important to be clear about any limitations you want to impose.
Requirements for appointing an enduring guardian
There are also certain procedural requirements, such as appropriate forms and witnesses, for the appointment to be valid. They include:
- both you and your prospective guardian must sign the form in front of a solicitor, barrister or registrar of the local court or overseas registered foreign lawyer (but you need not sign at the same time)
- the appointment must be in writing and follow a standard format.
Certain people cannot be appointed enduring guardians. They include:
- people under 18
- anyone directly or indirectly involved in, or responsible for, your medical treatment.
Appointment of enduring guardian forms, with instructions for valid completion, are available from the website of NCAT’s Guardianship Division, but they must be explained and witnessed in front of a prescribed person (see above).
It is suggested that the original appointment be kept with your will, and copies be given to your guardian, doctor, and other healthcare workers.
Revoking and resigning appointments
You can revoke your enduring guardian appointment as long as you still have the capacity to understand. A revocation must be in writing, witnessed by a legal practitioner or registrar of the local court, and given to the person previously appointed enduring guardian. The appointment will be revoked if you marry after you make the appointment unless you appointed the person you marry.
The enduring guardian can resign their appointment, if the appointor still has capacity. The enduring guardian can simply give them written notice of resignation. If the appointor has lost capacity, the guardian must obtain the approval of NCAT’s Guardianship Division before resigning.