There may come a time when health or circumstances make it difficult to make important personal decisions. In New South Wales (NSW), an enduring guardian can be appointed to make medical, lifestyle, and health decisions on behalf of someone who has lost decision-making capacity. This legal arrangement does not cover financial or property decisions, which require a separate power of attorney.
Choosing an enduring guardian is a serious decision that should be considered carefully, ideally with legal advice to ensure the arrangement reflects your wishes and complies with NSW law.
What Is an Enduring Guardian?
An enduring guardian is a trusted individual legally appointed to make health, lifestyle, and medical decisions for someone who cannot make these decisions themselves. The appointment only takes effect if the appointor loses capacity and cannot be made on behalf of someone who has already lost capacity. Enduring guardianship is separate from financial powers of attorney, which require their own legal documentation.
Legal Foundation
Enduring guardians are appointed under the Guardianship Act 1987 (NSW). The appointment must follow prescribed forms and be properly witnessed. Only individuals over 18 with full capacity may appoint an enduring guardian.
Enduring Guardian Responsibilities
An enduring guardian acts in the best interests of the appointor for personal, health, and lifestyle matters. Common responsibilities include:
- Deciding where the appointor lives and with whom
- Approving or refusing healthcare or medical/dental treatment
- Managing access to personal services such as home care
- Determining allowable contacts and visitation
The appointment can grant broad or limited powers, but the guardian must consider the appointor’s wishes and values whenever possible.
Enduring Guardian vs. Power of Attorney
| Enduring Guardian | Power of Attorney | |
|---|---|---|
| Decision areas | Health, lifestyle, and welfare | Financial and legal |
| Effective when | Only if the person loses capacity | Often immediately or from a chosen date |
| Covers health? | Yes | No (except in some states like QLD) |
| Covers finance? | No | Yes |
| Appointment ends | On death, revocation, or loss of guardian capacity | On death, revocation, or in some cases, loss of capacity |
In NSW, both documents may be needed for full coverage. Keeping your will up-to-date alongside these appointments ensures your health, financial, and estate wishes align.
Appointing Multiple Guardians
NSW law allows more than one enduring guardian. They can act jointly, severally, or jointly and severally. Substitute guardians can also be appointed to step in if the primary guardian is unable or unwilling to act. Substitute guardians provide backup to maintain continuity of decision-making.
Limitations of an Enduring Guardian
An enduring guardian cannot:
- Make financial or legal decisions
- Override an Advance Care Directive
- Act while the appointor still has capacity
- Operate outside the powers specified in the appointment
- Make decisions after revocation or the death of the appointor
The appointment ends upon revocation, death of the appointor, loss of guardian capacity, resignation, or removal by the NSW Civil and Administrative Tribunal (NCAT).
Choosing the Right Enduring Guardian
Eligibility
- Over 18 years old
- Not a paid carer or healthcare provider
- Trusted and reliable
Considerations
Choose someone who understands your values, preferences, and wishes. Communication, reliability, and willingness are critical. For complex cases, appointing multiple or substitute guardians may be beneficial.
Legal Process and Advice
How to Appoint
- Complete the official Enduring Guardianship Appointment form (available via NSW Government or legal offices)
- Nominate guardian(s) and specify functions or limits
- Sign in front of an eligible, independent witness
- Registration is optional but recommended
Legal Guidance
Legal advice ensures the appointment is valid and clearly expresses your wishes. Regular reviews are recommended to maintain suitability. Coordination with your executor reduces family confusion.
Protect Your Future by Choosing the Right Enduring Guardian
An enduring guardian provides legal certainty for health and lifestyle decisions if capacity is lost. Effective planning involves selecting a trusted person, communicating wishes, and following legal requirements. Combining enduring guardianship with a power of attorney provides comprehensive coverage.
For personalised guidance or assistance, contact M de Mestre Lawyers at 0401 513 190 or [email protected].
Frequently Asked Questions (FAQs)
What kind of decisions can an enduring guardian make?
They can make decisions about medical treatment, living arrangements, and personal services as specified in the appointment.
How is an enduring guardian different from a power of attorney?
A power of attorney handles financial and legal matters, while an enduring guardian handles health and lifestyle decisions. Both are needed for complete coverage.
Can I appoint more than one enduring guardian?
Yes. Guardians can be appointed jointly, severally, or jointly and severally. Substitute guardians can also be named.
Who can I appoint as my enduring guardian?
Anyone over 18, not a paid caregiver, and trusted by the appointor. Legal advice is recommended.
What are the limits of an enduring guardian’s powers?
They cannot make financial or legal decisions, override an advance care directive, or act while the person still has capacity. The appointment ends on death, revocation, loss of capacity, or tribunal removal.
Meta-description: Learn about appointing an enduring guardian in NSW, their responsibilities, limits, and how to choose the right person for health and lifestyle decisions.
