Appointments of Enduring Guardian

While the Enduring Power of Attorney allows someone to make decisions as to financial matters on your behalf, the Appointment of Enduring Guardian allows someone to make decisions about you and your needs, when you are unable to do so. These decisions can include:

  • Where you should be accommodated
  • What medical or dental treatments you need
  • What personal care services you need

We can help you by:

  • Guiding you as to whether you ought to appoint a Guardian
  • Ensuring that you, and the Guardian you appoint, understand the effect of the appointment

Advance Health Care Directives

While the Appointment of Enduring Guardian gives clarity as to who can make basic health care & welfare decisions if you are unable to, an Advance Health Care Directive can record your specific wishes as to what medical treatments should be administered or declined.

We can help you by:

  • Providing a checklist of issues for which you may want to give directions
  • Ensuring the Advance Health Care Directive you make is effective and binding.

FAQs

  • What is an Appointment of Guardian?

    An Appointment of a Guardian is the appointment of someone to make decisions on your behalf concerning your wellbeing when you are not in a position to do so. For instance, if you are injured or ill and are unable, due to the injury or illness, to make decisions as to what medical treatment or care should be provided to you, then the Appointment of a Guardian will enable that person to make those decisions for you.

  • If I have a Power of Attorney is it necessary to make an Appointment of Guardian?

    A Power of Attorney is limited to dealing with matters of a financial nature. So, when it comes to arrranging for a person to, say, take up residence in a nursing home, then the donees of the Power of Attorney can sign forms that are necessary. But, the donees of the Power of Attorney is, strictly speaking, not the one authorised to decide which nursing home. That is for the guardian to determine.

  • Who should be appointed as Guardian?

    An Appointment of a Guardian is a very important issue and must be considered taking the wishes of the whole of the family into account. It may be that there should be more than one Guardian appointed and that those people should act jointly. It would be difficult to appoint more than three Guardians given that 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.

  • What is the extent of an Appointment of Guardian?

    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 as to what the Guardian may determine are as follows:

    • to decide where you should live
    • to decide what health care you should be given
    • to decide what personal services you should be provided
    • to decide as to what medical or dental treatment should be carried out on you

    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. For more information see Advance Health Care Directives.

  • How is an Appointment of Guardian made?

    The Appointment of Guardian is a simple written document which we would prepare for you. The appointment needs to be signed both by the person making the appointment and the person or persons being appointed. The execution of the document must take place before a lawyer so that the terms of the appointment can be explained both to the appointor and the appointees and the lawyer signs a certificate which then makes the Appointment of Guardian operative.

  • Can an Appointment of Guardian be revoked?

    The Appointment of Guardian can be revoked at any time by you provided, of course, 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 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 the appointment by written instrument is suspended while the Court or Tribunal Order applies.

  • What is an Advance Health Care Directive?

    This is often referred to as a "Living Will".  It is a document which states your specific wishes or directions regarding your future health care for various medical conditions.  In other words, its relevant to that common statement that people make such as "if I'm in a coma and won't come out of it, switch off the machine, I don't want to be a burden to my family".

    These Directives will only come into effect if you are unable to make your own decisions as to your wellbeing.

  • What is the legal status of an Advance Health Care Directive?

    An Advance Health Care Directive is legally binding in New South Wales.  As a competent adult, you have the legal right to accept or refuse any recommended health care. By using an Advance Health Care Directive, if you are not capable of making decisions to accept or refuse any recommended health care, your Guardian can make those decisions for you on your behalf.

  • My spouse knows what I want if I'm in a coma, why do I need Directives?

    That may be exactly right but if you are incapable at the time and your spouse says that you wish any life support removed, how does the doctor know that your spouse is following your wishes?  A clear written Directive, properly witnessed, will satisfy that dilemma.

    The other point on this is that such a decision might have to be made by your children.  They may not really know how you want to be dealt with but, more importantly, they may feel uncomfortable making that end of life decision.  Again, clearly drawn Directives can give them some comfort in knowing that you want and give them confidence in communicating that to your doctor.