Enduring Guardianship

An enduring guardian can make lifestyle, health and medical decisions on your behalf if you lack the capacity to make those decisions yourself. A guardian acts as a substitute decision-maker and can consent to your future medical and dental treatment and accommodation arrangements. The appointment also authorises health care professionals to share your information with your guardian.

A guardian must be at least 18 years and must not be a person who is professionally or administratively involved in providing medical services, accommodation, or other support services to the person making the appointment. More than one guardian may be appointed.

It is common for spouses or partners to appoint each other and / or their adult children as guardians however the choice is ultimately yours. Remember that your guardian may need to make confronting decisions in challenging and emotional circumstances. The person you appoint will need to understand your values, morals and wishes.

If you appoint more than one guardian you may appoint them jointly or jointly and severally. Appointing guardians jointly means that both or all guardians must agree on the decisions made on your behalf. By appointing your guardians severally, you authorise each of them to make decisions separately.

Your appointment can include specific directions about your future treatment for example that you continue receiving services from a certain health care provider. You may also include the type of treatment you are willing to accept or refuse, for example you can state that if you are seriously ill with no chance of recovery, you do not wish to be subjected to treatment unlikely to meaningfully prolong your life.

You may not instruct your guardian to exercise any illegal functions, such as euthanasia.

The person making the appointment must have mental capacity to do so. Where a person lacks capacity and there is no pre-existing appointment the Act provides for a ‘person responsible’ to authorise medical and dental treatment. A person responsible includes a parent, if the person is a child, or if the person is an adult, the guardian or spouse, person with care of the person, or close friend or relative.

Whilst the appointment of a guardian is a private arrangement, it may be beneficial to alert other family members or friends of the appointment as well as your health care provider.

An Appointment of Enduring Guardian forms an integral part of your overall estate plan – it complements your Will and Power of Attorney which authorises an appointed person to deal with your financial matters in specified circumstances. Together these documents provide direction in the event of the unforeseen and / or inevitable and make the process for you and those dealing with misfortune and crisis a little less uncertain.

If you need any assistance contact one of our lawyers at [email protected] or call +61 2 9212 2422 for a no-obligation discussion and for expert legal advice.