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Enduring Guardians: All you need to know

Enduring Guardians: All you need to know

Concerned about protecting yourself if you lose capacity? Find out all you need to know about enduring guardians and their functions here.

25th March 2019

While we may think that we will always have the ability to make our own decisions, it is important to plan ahead. The key role of an enduring guardian is to ensure your interests are protected. By understanding their role and functions, you can better protect yourself should you lose decision-making capacity.

What are Enduring Guardians?

An enduring guardian is a person who can make health, life and financial decisions for another person. Any adult with capacity can appoint an enduring guardian. Alternatively, an enduring guardian can be appointed by your state’s Guardianship Tribunal. A point to note, is if you live in Queensland or ACT, the role of an enduring guardian doesn’t exist. This role is instead carried out by someone with an enduring power of attorney.

Capacity

Capacity means that you are legally competent to make your own decisions. It serves to protect those who are unable to make their own decisions from exploitation. Those with an intellectual disability may not have the capacity for some decisions. Importantly, capacity is a fluid concept, an individual may have capacity one day and not another day. Furthermore, one may have capacity for some types of decisions and not for other types. Capacity is important for enduring guardians as only those with capacity can appoint their own enduring guardians.

What if I’m unsure whether I have capacity?

Your state’s guardianship tribunal or a court can assess whether you have the capacity to appoint an enduring guardian. Your doctor will also be able to evaluate you to help determine what level of legal capacity you have. Moreover, a lawyer is a valuable source of assistance to make sure that your interests are protected.

What if I don’t have capacity?

If you don’t have capacity, your state’s guardianship tribunal will appoint a guardian for you to protect your interests. Obviously, it is preferable for you to appoint your own guardian if possible to ensure you have your choice of guardian. Your state’s tribunal can also assist you appointing a guardian if you think you don’t have a suitable person to be your guardian.

How do I appoint an enduring guardian?

To appoint an enduring guardian, you generally need to make a written document detailing the roles that you want your guardian to do. Get in touch with your state authority so you can know the relevant requirements to appoint a guardian in your state.

Decisions they can make

Generally speaking, you are free to delegate which decisions you want your guardian to make for you. Your state may have a fixed set of provisions that you can use if you are unsure of what functions you want your enduring guardian to have. Here are the standard functions of an enduring guardian in NSW to give you an idea of the role your enduring guardian can play in your life. You may want your guardian to make decisions about:

  • Where you live.
  • What type of medical treatment you should receive?
  • Consent for medical or dental treatment?

Who can be an enduring guardian?

Anyone over the age of 18 with legal capacity can be appointed as your enduring guardian. They also must not be responsible for you in any professional or administrative capacity if they are receiving money or type of reward. Typically, people appoint their spouse, child or a close friend as their enduring guardian, but you are free to choose who you desire.

Conclusion

You can now see the function and the benefits of having an enduring capacity. By starting the process while you still have capacity, you will have the best opportunity to make an application for an enduring guardianship on your terms and to your preferred requirements.

Need help appointing an enduring guardian? Contact a LawPath consultant on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest legal marketplace.

Author
Lachlan Ward

Lachlan is an intern at Lawpath as part of the content team. He is currently studying a Juris Doctor at the University of Sydney. Lachlan has a keen interest in corporate law and commercial litigation.