The basics
What an enduring guardianship is
An enduring guardianship is an appointment you make, while you have capacity, of a person to make personal, health and lifestyle decisions for you if a time comes when you cannot make them yourself. It is enduring in the sense that it survives the loss of capacity, which is the only point at which it does anything.
It covers you, not your money
An enduring guardian has no authority over your bank accounts, your property or your investments. That is the separate territory of a power of attorney. Neither document reaches into the other’s, and most people need both.
Unlike a power of attorney, an enduring guardianship cannot be drafted to start immediately. It operates only while you are unable to make the particular decision yourself, and it stops operating if you recover. Your guardian cannot overrule a decision you are still capable of making.
Scope
What your guardian can decide
Unless you limit it, the appointment authorises your guardian to:
- Decide where you live, whether that is your own home, a particular facility, or with a family member.
- Decide what health care you receive.
- Decide what other personal services you receive, such as home care, allied health and support services.
- Consent to medical and dental treatment on your behalf.
- Exercise any other function relating to you that you specify in the document.
You can limit or exclude any of those functions, and you can include lawful directions about how they are to be exercised. Directions matter: a guardian must follow them unless the tribunal directs otherwise, so they are the mechanism for saying not just who decides but on what basis.
What a guardian cannot do
- Touch your money. No accounts, no property, no investments.
- Make or change your will.
- Consent to special medical treatment. Certain procedures, including sterilisation and some experimental treatments, can only be consented to by NCAT’s Guardianship Division.
- Override you. The appointment operates only while you cannot make the decision yourself.
The gap it fills
Who decides if you have not appointed anyone
Where a patient cannot consent and the treatment is not urgent, a practitioner must find the person the legislation calls the person responsible. That is a fixed hierarchy, not a choice, and the first person on the list who is available and willing is the one who decides.
| Order | Who |
|---|---|
| 1 | Your guardian, including an enduring guardian, but only if the appointment gives them the function of consenting to medical and dental treatment |
| 2 | Your spouse or de facto partner, where the relationship is close and continuing |
| 3 | The person who has the care of you on an unpaid basis, or who did before you entered residential care |
| 4 | A close friend or relative |
Why appointing someone changes the answer
Appointing an enduring guardian puts your choice at the top of that list. Without one, the decision goes to whoever happens to sit highest and be available, which in a blended family, an estranged marriage or a situation where an adult child lives interstate is frequently not the person you would want. It also removes the argument, because the document answers the question in writing rather than leaving a hospital to work it out between relatives.
Urgent treatment is different. Where treatment is needed to save your life, prevent serious damage to your health or, in some circumstances, to relieve significant pain or distress, it can be carried out without anyone’s consent.
Who you appoint
Choosing a guardian
The person who will be asked whether you should move into care, whether a particular treatment goes ahead, and sometimes whether treatment should stop. Choose someone who will be able to do it, not simply the eldest or the nearest.
- They must be over 18 and have capacity themselves.
- They must be willing. The appointment does not operate unless they have signed accepting it.
- They should know your views. A guardian who has never discussed any of this with you is guessing, at the worst possible time.
- They should be reachable. Decisions are often needed the same day.
Who cannot be appointed
A person cannot be your enduring guardian if they are responsible for or involved in providing you, for fee or reward, with medical services, accommodation, or other services supporting your daily living. That rules out a paid carer, and it rules out the facility you live in and its staff. It also rules out the spouse, parent, child, brother or sister of such a person.
The bar applies at the time of appointment. If someone validly appointed later begins providing you with paid services, the appointment does not lapse.
Appointing more than one
- Jointly. They must agree. Protective, and it can stall a decision that needs to be made today.
- Severally. Each can decide alone, which is practical and means two people can give inconsistent instructions to a hospital.
- Jointly and severally. They may act together or separately at their discretion.
- Different functions to different people. You can give one guardian one function and another a different one, in which case each is taken to be appointed severally for their own function.
Substitutes can also be appointed, and should be. Without one, the appointment fails if your guardian dies, loses capacity or cannot act, and you are back to a tribunal application.
Saying what you want
Directions and advance care planning
An appointment names a decision maker. It does not, by itself, tell them what to decide. There are two ways to do that.
Directions in the appointment
Lawful directions written into the instrument itself, which your guardian must follow unless the tribunal directs otherwise. Useful for firm positions: a preference to remain at home while it is safe, a view about a particular kind of care, a person who should always be consulted.
An advance care directive
A separate document recording your own decisions about treatment, including treatment you would refuse. Where it is valid and applies to the situation, it speaks for you directly, and it guides your guardian. It sits alongside an enduring guardianship rather than replacing it, because no directive can anticipate everything.
The conversation matters as much as the paperwork. A guardian who has heard your views is far better placed than one holding a document.
Validity
Making the appointment properly
- Capacity when you sign. You must understand what the appointment does. Once capacity is gone the appointment cannot be made, by you or by anyone on your behalf.
- The prescribed form, or one with the same effect.
- An eligible witness. Your signature, and each guardian’s, must be witnessed by an eligible witness, who must explain the effect of the document and certify that they did and that you appeared to understand it. Where different people witness the appointor’s and the appointees’ signatures, each witness certifies what they witnessed.
- Acceptance by each guardian and each substitute. The appointment does not operate until they have signed accepting it.
- Tell people it exists. Enduring guardianship appointments are not recorded on any public register. A document nobody knows about will not be found when a hospital needs it. Give copies to your guardian, your GP, your solicitor and anyone likely to be contacted in an emergency.
Later on
Changing, cancelling and ending
Revoking it
You can revoke while you have capacity, in writing and in the required form, with notice to your guardian. Retrieve the copies you have handed out and tell the people you gave them to, or an old appointment may be acted on.
If you marry
Marriage automatically revokes an enduring guardianship appointment, unless the person you marry is your guardian. This catches people out and it is a good reason to review your estate planning documents after any change in relationship.
If your guardian resigns
They can resign by written notice while you still have capacity. If you have already lost capacity, they can only resign with NCAT’s approval, which is a real protection against being left with nobody.
If a guardianship order is made
Where the tribunal appoints a guardian, an enduring guardianship appointment is suspended while that order is in force.
An appointment made in another state or territory can be recognised here, subject to the rules that apply to it where it was made. If you have moved to New South Wales it is worth having the position checked rather than assumed.
If there is a problem
Review, and what happens without an appointment
The Guardianship Division of NCAT can review an enduring guardianship appointment on the application of anyone with a genuine concern for the appointor’s welfare. It can confirm the appointment, vary or revoke it, or substitute a different guardian. The Supreme Court also has jurisdiction.
Where there is no appointment and no person responsible able or willing to act, or where a decision is contested, someone must apply for a guardianship order. The tribunal then decides who makes your personal decisions. An initial order is made for a limited period and reviewed, and where no suitable private guardian is available the Public Guardian is appointed. It is public, it takes time, and it puts the decision in the hands of people who do not know you.
Common questions
Frequently asked questions
Is this the same as a power of attorney?
No. A power of attorney deals with money and property. An enduring guardianship deals with you: where you live, your health care and the services you receive. They are separate documents with separate execution requirements and most people need both.
Doesn’t my husband or wife automatically decide?
For medical consent, a spouse in a close continuing relationship sits high on the statutory list, so in a straightforward situation they will often be the person asked. It is not automatic, it does not extend to deciding where you live in the way an appointment does, and it produces no answer at all where a relationship has ended without a divorce or where family members disagree.
Can my guardian refuse treatment on my behalf?
A guardian with the function of consenting to treatment can decline to consent, and treatment then generally cannot proceed except in an emergency or with the tribunal’s consent. It is one of the heaviest parts of the role and a reason to give directions, and to have the conversation, before it arises.
Can I appoint my carer?
Only if they are not paid to care for you. An unpaid family carer can be appointed. Someone providing your care for fee or reward cannot, and nor can their spouse, parent, child or sibling. A carer’s pension does not count as payment for this purpose.
What if I get better?
The appointment stops operating. It only has effect while you are unable to make the particular decision yourself, and it resumes if you lose capacity again. It is not a one way door.
Where should the document be kept?
Somewhere it will be found quickly. There is no register, so a hospital cannot look it up. Your guardian should have a copy, and so should your GP, your solicitor and anyone likely to be called in an emergency.
Can I make one if I have been diagnosed with dementia?
Possibly. A diagnosis is not the same as a loss of capacity, and capacity is assessed for the specific decision at the specific time. Many people early in an illness can still validly make the appointment. It is a reason to act now rather than to assume it is too late.
Do I need a lawyer for it?
An eligible witness must explain the document and certify it, so a form on its own does not complete the job. Beyond that, the value is in the parts a form cannot decide: whether functions should be limited, what directions should be included, whether guardians act jointly or severally, and whether the person you have in mind is eligible at all.
Plan while you can
Appoint someone before it is needed
We prepare enduring guardianship appointments as part of a complete estate plan, alongside your will and a power of attorney. We will talk through who is eligible, what functions they should have, what directions are worth including, and what your guardian needs to understand about the role.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Open Monday to Friday 9am to 5pm.