What is an Appointment of Enduring Guardian?
An appointment of Enduring Guardian is a legal document that allows you (the Appointor) to nominate one or more persons (referred to as a Guardian) to make medical and lifestyle decisions on your behalf if you are unable to make them for yourself.
The types of decisions that a Guardian can make relate to matters such as where you live, what healthcare you receive, other kinds of personal services that you receive and to consent or refuse consent to the carrying out of medical or dental treatment on you.
Sometimes, an Appointment of Enduring Guardian is referred to as a “living will” as it may contain specific directions as to the type of decisions the Guardian is to make. Also, a Guardian may be authorised to make decisions in accordance with specific directions contained in a separate document such as an Advanced Healthcare Directive.
It’s important to realise, just like a Will and a Power of Attorney, that you can only make an Appointment of Enduring Guardian whilst you have the mental capacity to make one.
One of the many questions we are asked is “Who should I appoint as my Guardian?”
The short answer is someone whom you trust, who is aware of your wishes and who is willing and able to make decisions.
At law, a Guardian must be a person who is over eighteen (18) years of age and must not be a “carer” who receives payment for looking after you in their professional capacity. For example, a Guardian could be your spouse, adult child, or even a friend.
The choice of who you appoint as Guardian and how many you appoint is up to you. You could decide to have just one Guardian and appoint a Substitute Guardian who would only have authority to act if your first appointed Guardian was unable to. You can even appoint more than one Guardian and direct that they are to act “jointly” or “jointly and severally” this is a similar decision to make as in regards to the appointment of an Attorney under a Power of Attorney. For more information, please see (Miranda, please insert reference).
It is important to realise, that the Guardian can only make health and lifestyle decisions on your behalf. A Guardian cannot make decisions in relation to your assets and financial affairs unless they have also been appointed as an Attorney under your Power of Attorney.
Unlike a Power of Attorney, the Appointment of Enduring Guardian will only come into effect if you have lost capacity to make decisions in relation to your health and welfare.
In situations where a person has lost capacity and they do not have an Appointment of Enduring Guardian or they do and there’s a problem with it or with the Guardian(s) who have been appointed and making decisions, then someone would need to make an application to the NSW Civil and Administrative Tribunal, Guardianship Division.
As mentioned in relation to Power of Attorney the reality is it could be days, if not weeks or sometimes months, until a hearing of the application occurs or the issue to be sorted or decisions in relation to health and lifestyle to be made.
At Aitken Lawyers, we know that you do not want this to occur to you and your family and that is why we ask you to let us help you to make an Appointment of Enduring Guardian, in order to avoid this if something unfortunate happens to you.
So don’t delay any further and let us to help you make an Appointment of Enduring Guardian, together with your Power of Attorney, as a “just in case” by contacting one of our Estate Planning lawyers on (02) 8987 0000.