Enduring Guardian General Information
An Enduring Guardianship is an important decision that should be considered carefully. It will allow someone else to make important medical and lifestyle decisions on your behalf. The proposed Guardian should be contacted and discussions had around your goals, lifestyle and thoughts on medical issues. The Guardian should then be in a better position to make those decisions in your best interest. It goes without saying that you should trust your proposed Guardian to make those decisions in your best interest.
Your Enduring Guardian can only make lifestyle decisions such as care, housing and health. The Guardian cannot make financial decision so you should not give sensitive financial information to the guardian. For financial decision use an Enduring Power of Attorney. There is of course no reason why the same person cannot act as both Power of Attorney and Guardian.
If you appoint one Enduring Guardian you will be asked to consider the appointment of a substitute guardian in case the Enduring Guardian vacates office, which means if they resign, become ill or die, or any other reason they cannot continue to act. The substitute only steps in when they cannot act.
If you appoint more than one Enduring Guardian you will need to decide how they should act, either jointly, severally or jointly and severally. By acting jointly they must make decisions together and by acting severally they can make decisions independently of each other.
If you marry the Enduring Guardianship is automatically revoked unless you marry your guardian.
If you are unable to physically sign the document you may nominate a person to sign on your behalf. That person must be at least 18 years of age and not the person to be appointed Enduring Guardian. They cannot also witness the execution of the document.
The Enduring Guardian can resign at any time, by giving you notice in writing. If you
have lost capacity to make decisions at that time then your Enduring Guardian can
only resign with the approval of the appropriate State Administrative Tribunal.
The Enduring Guardianship is not automatically accessible on the public register so you should give a copy to the Enduring Guardian, your doctor, your solicitor, health service provider and a copy for yourself kept in a safe place. You should also inform close friends or family.
If there are any concerns an Enduring Guardian may not be acting appropriately or that the Guardianship was signed when the person may not have had capacity you should contact your solicitor or appropriate State Tribunal.
- I have spoken to my proposed Enduring Guardian/s and discussed this appointment with them to ensure they are willing and able to take on this role and exercise the functions I wish to give them.
- I trust my Enduring Guardian/s and have spoken to them about the kind of lifestyle decisions I wish them to make on my behalf should I lose capacity. If these change, I understand it is important to let my Enduring Guardian/s know.
- I have discussed the appointment of my Enduring Guardian/s with my close friends/family to let them know of my decision to appoint an Enduring Guardian.
- I have considered the option of appointing a substitute guardian should my first appointed Enduring Guardian die, resign or become incapacitated.
- I have considered how I wish my Enduring Guardians to act i.e. jointly, severally or jointly and severally.
- I understand I can ask someone to sign this appointment on my behalf if I am physically unable to sign. This person must be over the age of 18 and cannot be my Enduring Guardian/s or a witness to this appointment.
- I understand the certificate of witness needs to be completed by an eligible witness, i.e. an Australian legal practitioner/Registrar of the NSW Local Court/overseas—registered foreign lawyer or approved employee of NSW Trustee & Guardian.
- I understand my Enduring Guardian/s need to sign their acceptance of the Enduring Guardian appointment before it can operate.
- I understand it is important to give a copy of this Enduring Guardianship appointment to my Enduring Guardian/s and other relevant people, such as my GP and attorney, and I will keep a copy in a safe place. There is no public register for Enduring Guardianship appointments.
- I understand that if I marry, the Enduring Guardianship appointment will be revoked unless I am marrying my Enduring Guardian.
- I understand it is advisable to get medical and legal advice before signing my Enduring Guardianship appointment.