An Enduring Guardian is someone of your choice whom you appoint to make decisions on your behalf concerning your health and wellbeing when you become incapable of, or not in a position to do so yourself. In this article, we will look at:
the powers of your Enduring Guardian;
when the appointment of your Enduring Guardian becomes operable;
appointment of Guardians jointly or severally;
what happens if your Guardian dies;
how to make an Appointment of Guardian;
revocation of an Appointment of Guardian;
benefits of an Appointment of Guardian; and
the difference between a Power of Attorney and an Appointment of Guardian.
Why should I consider appointing an Enduring Guardian?
Appointing an Enduring Guardian provides peace of mind that decisions about your wellbeing (including medical treatment) will be made by someone of your choosing. Importantly, you can only appoint an Enduring Guardian at a time you have the mental capacity to do so. You cannot appoint an Enduring Guardian if you do not have mental capacity to do so; for example, if you have sustained a brain injury (temporary or permanent) immediately after a car accident.
Consider this scenario
Jeremy is 55 years of age and divorced from his wife, Lynne.
Jeremy has 3 children; the eldest, Ryan (35 years old, unmarried) lives with Jeremy.
The other two, Ashley and Jordan (31 and 25 years, both unmarried) live with Lynne.
Jeremy is involved in a motor vehicle accident and is rendered mentally disabled.
If Jeremy had made an Appointment of Guardian, he could have appointed Ryan to make decisions for him as to his welfare as Ryan lives with him.
Without an Appointment of Guardian, the Guardianship Tribunal has to decide who should have the right to make those decisions; Ryan, Ashley or Jordan? Or a combination of them?
What power does a Guardian have?
Usually, the guardianship appointment is limited to making decisions of a lifestyle nature, primarily in respect of medical treatment and care.
Therefore, the usual provisions a Guardian may determine include:
deciding where you should live;
deciding what health care you should be given;
deciding what personal services you should be provided;
deciding what medical or dental treatment you should receive;
access to any relevant health records.
The responsibilities can be wider than those set out above, but they need to be carefully considered and the document carefully drafted to ensure that the intention is clear and effective.
Consider this scenario
Phil and Jean have been married for 30 years.
They have 2 children, Robert and Amy.
Phil’s mother, Marjory, had been in a motor vehicle accident many years ago and had, as a result, been placed on mechanical ventilation for a number of months before she died.
Phil saw his mother deteriorate and be uncomfortable for those months and is determined that if he was in a similar situation that he would prefer not to have continuing mechanical ventilation.
Phil can include a direction in his Appointment of Guardian (where he has appointed Jean as his Guardian and Robert and Amy as the alternate Guardians), that if he is in an incurable condition and could only be supported by mechanical ventilation, then his Guardian is not to direct the doctors to mechanically ventilate him.
When will an Appointment of Guardian be operable?
An Appointment of Guardian will only be operable when you are partially or totally (temporarily or permanently) incapable of managing yourself in regards to decisions relating to your wellbeing and what medical treatment you undergo. A Doctor will determine at the time whether you are capable of making a decision as to your wellbeing and health care and if you are not, then your Guardian will be called upon.
So, if you are partially incapable for a period and then recover, the Appointment of Guardian is only operable during that period of incapacity.
Can I have more than one Guardian?
The appointment of a Guardian is a very important issue and should be considered taking the wishes of the whole family into account.
You can appoint as many Guardians as you wish but more than 3 can become unworkable. Especially as decisions would, from time to time, be needed to be made on an urgent basis and obtaining the consent of all appointed Guardians for the one decision may be difficult and time consuming.
Where you wish to appoint more than one Guardian, then you need to make a decision as to whether the Guardians are to act jointly or jointly and severally.
“Jointly” means that the Guardians must all sign documents or act together on your behalf.
“Severally” means that either or any of the Guardians may act on your behalf in signing documents and so on.
Where reference is made to “Jointly and/or Severally”, then both options apply.
You can also make provision for a Substitute Guardian(s) in case the first appointed Guardian(s) are unable to be your Guardian due to sickness, disability, death or unwillingness to act.
If you appoint more than two Guardians, then you may decide that you wish for a majority rules type approach, for example, two out of the three Guardian must act together.
Consider this scenario
Joyce is in her 80’s and has two daughters, Sandra and Dianne and a son, James.
Sandra is married, has children and has a close relationship with Joyce.
Dianne is also married, lives near Joyce and regularly sees her.
James is married but works for an international company and regularly travels outside the country.
Joyce feels uncomfortable appointing only her daughters as she may offend James. However, given that James is frequently out of the country, the recommendation to Joyce is that she appoints all three children as Guardians but authorises them to act “jointly and/or severally”.
This would enable Sandra and Dianne to continue to make decisions for Joyce when she is incapable without necessarily having to obtain James’ mutual approval.
What if the Guardian I appoint dies or is unable to act?
If you appoint a person to be your sole Guardian, then you can also appoint an alternate Guardian if your original choice:
becomes partially or totally incapable of managing you under the Appointment of Guardian; or
no longer wishes to act as your Guardian.
Where more than one Guardian is appointed, then you can nominate that the death, resignation or incapacity of any one or more of those Guardians does not terminate the appointment of the other Guardians.
How is the Appointment of Guardian made?
This is a simple written document which a member of the E&A Lawyers estate planning team can prepare for you.
The Appointment needs to be signed by the person making the Appointment (the Appointor) and the Guardian(s). The signing must take place before a solicitor so that the terms of the Appointment can be explained both to the Appointor and the Guardian(s).
The Appointment does not need to be signed by the Guardian at the same time as the Appointor signs – it can be done at a later date.
Revocation of Enduring Guardianship
You can revoke an Enduring Guardianship at any time provided that you have the mental capacity at the time to make that revocation. The method of revocation is by written instrument in the form prescribed under the relevant Act.
The Supreme Court and the Guardianship Tribunal also have an overriding power to appoint a Guardian. If a Guardian is appointed by the Court or the Tribunal, then any Appointment of Guardian you have put in place yourself is suspended while the Court or Tribunal Order applies.
Is an Appointment of Guardian really necessary?
The answer to that question depends on your family background.
If you are married, then under the Act (unless you have made an Appointment of Guardian to the contrary), your spouse will be regarded as the person responsible for making those decisions.
If you are not married, then it will normally be a person generally accepted as a responsible person who gives you support or who had done so before you became incapable of making decisions for yourself (for example, before you entered into residential care or before you suffered a significant injury prior). This might be a parent, a sibling, an adult child, a close friend or a close relative.
So why would it be worthwhile to make an Appointment of Guardian? If there might be more than one person who falls into the “responsible person” category then you may want to make a clear decision as to who you want to act on your behalf. An Appointment of Guardian will enable that.
Consider this scenario
Irene and Joe are in their seventies.
Irene lives in their home but Joe is physically unwell and lives in a nursing home.
Irene and Joe do not have any children.
Irene’s sister, Leslie, lives with Irene.
Irene decides that she would prefer that Leslie make decisions for Irene if Irene is not capable, so she signs an Appointment of Guardian in favour of Leslie.
I have a Power of Attorney; do I need an Appointment of Guardian too?
A Power of Attorney is an authority for another person to make decisions as to matters of a financial or legal nature.
An Appointment of Guardian is an authority for another person to make decisions as to issues affecting your welfare (including medical decisions) when you are unable to do so.
It has been our experience that people in the medical field often accept the Attorney appointed under a Power of Attorney as being the person to make decisions in respect of a person's care or needs. However, if this was challenged by another interested party, then the Power of Attorney would be inadequate to enable the person granted the authority under the Power of Attorney to make decisions as to medical care and treatment.
Appointment of Enduring Guardian is not a decision to be made lightly. It’s important to understand the full authority and impact of appointing your Guardian.
Our estate planning team are highly experienced and skilled in advising on and preparing documents for the Appointment of Enduring Guardian. We can assist you in relation to this specific document together with your Power of Attorney (General or Enduring) and any other estate planning documents you may require.
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