Enduring Guardianship & Power Of Attorney

What is an Appointment of Enduring Guardian?

An appointment of enduring guardian is a legal document where a person (the appointor) appoints someone else (the guardian) to make lifestyle and health decisions on their behalf.

A guardian appointed under an enduring guardian document can only make decisions on behalf of the appointor in circumstances where the appointor is unable to make their own decisions (for example, where they lose mental capacity).

Once in force, the document remains in effect until the appointor revokes it, or until they pass away.

Appointment of Enduring Guardian Requirements

An appointment of enduring guardian must be in the correct form as set out in the Guardianship Regulation 2016 (NSW) and must be completed, having regard to specific signing and witnessing requirements.

In order for an appointment of enduring guardian to be valid, it is a requirement that the signatures of the appointor and the signatures of the guardians are witnessed by an eligible witness which is most often an Australian Legal Practitioner. This is because an appointment of enduring guardian is a powerful legal document and it is important that all parties understand the consequences of the document they are signing.

As enduring guardian lawyers in Sydney, we provide our clients with personalised legal advice to assist them in preparing and signing an appointment of enduring guardian form.

The Importance of Appointing an Enduring Guardian

An appointment of enduring guardian is a document that can only be prepared while the appointor still has mental capacity. This means that if the appointor loses capacity before appointing an enduring guardian, they will no longer be able to choose who has the right to make medical and lifestyle decisions on their behalf, and they may end up being cared for by a person other than who they would have chosen.

If you or your loved ones need assistance with preparing an appointment of enduring guardian, our enduring guardian lawyers in Sydney have decades of experience preparing and advising on appointments of enduring guardians in Sydney and New South Wales. If you’d like to learn more, give us a call or submit an enquiry now.

The Guardianship Act 1987 (NSW) sets out the functions that an enduring guardian can carry out on behalf of the appointor once they lose capacity. These are:

Deciding the place in which the appointor is to live (such as a specific nursing home or the appointor’s own home);
Deciding on the health care that the appointor is to receive;
Deciding the other kinds of personal services that the appointor is to receive;
Giving consent to the carrying out of medical or dental treatment; or
Any other function relating to the appointed person that is specified in the document.

An appointment of enduring guardian is not the same as a power of attorney. While an appointment of enduring guardian deals with medical and lifestyle decisions, a power of attorney deals with financial decisions.

You can read more about powers of attorney here.

It is important to consider preparing both power of attorney and enduring guardian documents as part of an estate plan, so that you can appoint someone to make medical decisions on your behalf, and also someone to make financial decisions on your behalf in circumstances where you are incapacitated but still alive.

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