What is an Enduring Guardianship and why do I need one?

What is an Enduring Guardianship?

An enduring guardianship is a legal document that authorises a person (‘the enduring guardian’) to make health and medical decisions for another person if they have lost the decision-making capacity to do so themselves.

The functions of an enduring guardian are usually to:

• Decide where the person lives;
• Decide what health care they receive;
• Decide what other kinds of personal services they receive;
• Consent to the carrying out of medical or dental treatment for the person.

An enduring guardian cannot make legal or financial decisions for the person, meaning that they have no authority with respect to the person’s money or assets, as this is captured in a separate legal document called an Enduring Power of Attorney. This will be covered in a future article.  

Why do I need an Enduring Guardian?

An enduring guardian is not a document reserved for the old or infirm. We will ask almost all clients to consider preparing an enduring guardianship when preparing their Wills, as part of their suite of estate planning documents. It is an important document to have as a precaution whereby you can select a person whom you trust to make health and medical decisions on your behalf before capacity is lost.

Capacity is fluid, and someone can lose capacity temporarily because, for example, they are in an accident and are unconscious, or in a coma. Capacity may well return, but what happens during?

If you do not have an enduring guardianship in place and suddenly lose capacity, an application will need to be made to the NSW Civil and Administrative Tribunal (NCAT) for the appointment of a guardian through a Guardianship Order. If no one steps forward to make this application to be your guardian, NCAT may Order the NSW Trustee and Guardian to be your guardian. This means that the person making these very personal decisions, are not family or friends who know and care about you, they are strangers who are paid to do so. They may not visit you, they may not know your likes and dislikes, your hopes and plans. They may not know a thing about you.

Having an enduring guardianship in place ensures that the selection of your guardian remains in your control and saves your loved ones from having to go through the process of applying for a Guardianship Order with NCAT. If you hold concerns that the person you select may be unwilling or unable, you may appoint them to act jointly and/or severally with another person or appoint them in the first instance and have a substitute if they are unable.

If you are interested in preparing an enduring guardianship or would like to speak with a member of our experienced Estate Planning Team, contact Solari and Stock on 8525 2700, alternatively or click here to request an appointment.

Our Estate Planning Team includes Rebecca Exley, Michael Solari, Nicole Commandeur and Valentina Abouzeid.

Article by Mia Doncevski
Image created in Canva