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What is an Enduring Guardian?
An enduring guardian is someone you nominate to make personal or lifestyle decisions for you when you are not capable of doing this for yourself. If we had a choice, we would all prefer to make our own decisions about our lifestyle such as where we live and what medical treatment and services we have right up to the end of our life. |
Unfortunately this is not always possible as people may lose the capacity to make these decisions through accidents, illness or degenerative conditions. By appointing an enduring guardian you choose whom you want to make decisions for you if you lose the capacity to do this for yourself.
Guardians in NSW are responsible for ensuring that decisions are made giving consideration to the general principles of the Guardianship Act (See end of this article). These principles aim to promote the independence and choice of the person with the disability, as well as ensuring the person’s care and protection from neglect or exploitation.
Making decisions, which are in keeping with the principles, may not be as easy as it looks. In practice, some principles may conflict with others. For example, it may be difficult to ensure that someone has freedom of action to do what he or she wants, and yet at the same time ensure he or she is protected from abuse, neglect and exploitation.
Finding a balance is the key, and this will require the enduring guardian to think carefully about the consequences of a decision, to weigh up alternatives and to ask questions in order to be satisfied about the options available, and the decisions made, on behalf of the person.
Although it is unlikely that many will require their nominated enduring guardian to act for them, it is an important safeguard to have in place. Your guardian cannot interfere while you are capable of making your own decisions.
The appointment of your enduring guardian only takes effect if you become unable to make your own personal or lifestyle decisions.
Who May I appoint?
The person you appoint as your enduring guardian must be at least 18 years old and someone you trust to make decisions in your best interests. Sometimes there can be disagreement among family members and friends about what medical treatment you should receive and what your wishes would be. An enduring guardian can consider what they feel you would want, the views of professionals and other people important in your life, take into account the circumstances at the time and make decisions on your behalf should the need arise.
The person you appoint as your enduring guardian should also be someone who has the necessary time to consult with your doctors and carers on a regular basis. If possible, it can be helpful if the person you appoint as your guardian has some familiarity with the medical system and can communicate effectively with medical professionals and staff.
The enduring guardian cannot be a person who, at the time of appointment provides you with medical treatment, care, accommodation services or support services for daily living on a professional basis; or who is a relative of one of the above.
You may appoint more than one enduring guardian and nominate whether they are to act jointly i.e. they both need to agree to all decisions, or whether each may act severally i.e. each may act without consulting the other guardian.
If you choose to appoint two or more enduring guardians, you may appoint them with the same functions or with different functions. If you appoint your guardians with different functions then you need to use separate forms for each enduring guardian appointed.
As there is the potential for disagreement among enduring guardians appointed jointly, if you chose more than one guardian the people you are appointing need to be able to communicate well with each other in making decisions on your behalf.
Your guardian will also need to communicate well with whomever has your enduring power of attorney, as lifestyle decisions can have financial implications and financial decisions can have lifestyle implications.
What kind of Decisions may my guardian make?
You choose which kind of decisions you want your enduring guardian to make. These are called functions and you can direct your enduring guardian on how to carry out the functions.
To enable your enduring guardian to take into account unforeseen future circumstances, and to give your enduring guardian scope to make the most appropriate decisions given the circumstances and options available at the time, it may be better to identify the decision-making areas in general terms.
The most common functions to consider are:
You will find the common decision-making areas or functions already included on the form of appointment.
May I give my Enduring Guardian Specific Directions?
It is also possible to give directions about how to exercise the particular decision-making functions you have given your enduring guardian.There is a difference between identifying the decision-making areas you wish to give your enduring guardian, and setting out a list of specific decisions you would like your enduring guardian to make in a range of circumstances. Hence, why most people specify the general functions in their Enduring Guardianship form and list specific decisions in their Advance Care Directive.
Having your Advance Care Directive and Enduring Guardianship as separate forms provides you with greater flexibility to adjust your Advance Care Directive as your health conditions change without the need to execute a new Enduring Guardianship document.
Revoking the Appointment of an Enduring Guardian
While you have legal capacity, you can revoke the appointment of an Enduring Guardian. To do this you need to complete a Revocation of Appointment of Enduring Guardian form. This form will also need to be witnessed by an eligible witness. You have to advise the enduring guardian in writing that their appointment has been revoked, otherwise the revocation is ineffective.
Only the Guardianship Division, NSW Civil & Administrative Tribunal can make changes to your Enduring Guardianship appointment if you have lost the capacity to do this for yourself.
General Principles of the Guardianship Act
The general principles of the Guardianship Act are:
• the welfare and interests of the person should be given paramount consideration;
• the freedom of decision and the freedom of action of the person should be restricted as little as possible;
• the person should be encouraged as far as possible to live a normal life in the community;
• the views of the person should be taken into consideration;
• it is important to preserve family relationships and the cultural and linguistic environment of the person should be recognised;
• the person should be encouraged as far as possible to be self-reliant in matters relating to personal, domestic and financial affairs;
• the person should be protected from abuse, neglect and exploitation;
• the community should be encouraged to apply and promote these principles.
Further information
References and Sample Templates:
http://www.tag.nsw.gov.au/enduring-guardian-faqs.html
https://planningaheadtools.com.au
UK Reference
In the UK the equivalent form is called a Lasting Power of Attorney - Health and Welfare.
Anne McR. Australia
NOTE: unless otherwise stated, the information in this document is based on the laws of New South Wales. People living in other places are invited to make their own inquiries. This document is for general information purposes only and does not constitute legal advice.
Guardians in NSW are responsible for ensuring that decisions are made giving consideration to the general principles of the Guardianship Act (See end of this article). These principles aim to promote the independence and choice of the person with the disability, as well as ensuring the person’s care and protection from neglect or exploitation.
Making decisions, which are in keeping with the principles, may not be as easy as it looks. In practice, some principles may conflict with others. For example, it may be difficult to ensure that someone has freedom of action to do what he or she wants, and yet at the same time ensure he or she is protected from abuse, neglect and exploitation.
Finding a balance is the key, and this will require the enduring guardian to think carefully about the consequences of a decision, to weigh up alternatives and to ask questions in order to be satisfied about the options available, and the decisions made, on behalf of the person.
Although it is unlikely that many will require their nominated enduring guardian to act for them, it is an important safeguard to have in place. Your guardian cannot interfere while you are capable of making your own decisions.
The appointment of your enduring guardian only takes effect if you become unable to make your own personal or lifestyle decisions.
Who May I appoint?
The person you appoint as your enduring guardian must be at least 18 years old and someone you trust to make decisions in your best interests. Sometimes there can be disagreement among family members and friends about what medical treatment you should receive and what your wishes would be. An enduring guardian can consider what they feel you would want, the views of professionals and other people important in your life, take into account the circumstances at the time and make decisions on your behalf should the need arise.
The person you appoint as your enduring guardian should also be someone who has the necessary time to consult with your doctors and carers on a regular basis. If possible, it can be helpful if the person you appoint as your guardian has some familiarity with the medical system and can communicate effectively with medical professionals and staff.
The enduring guardian cannot be a person who, at the time of appointment provides you with medical treatment, care, accommodation services or support services for daily living on a professional basis; or who is a relative of one of the above.
You may appoint more than one enduring guardian and nominate whether they are to act jointly i.e. they both need to agree to all decisions, or whether each may act severally i.e. each may act without consulting the other guardian.
If you choose to appoint two or more enduring guardians, you may appoint them with the same functions or with different functions. If you appoint your guardians with different functions then you need to use separate forms for each enduring guardian appointed.
As there is the potential for disagreement among enduring guardians appointed jointly, if you chose more than one guardian the people you are appointing need to be able to communicate well with each other in making decisions on your behalf.
Your guardian will also need to communicate well with whomever has your enduring power of attorney, as lifestyle decisions can have financial implications and financial decisions can have lifestyle implications.
What kind of Decisions may my guardian make?
You choose which kind of decisions you want your enduring guardian to make. These are called functions and you can direct your enduring guardian on how to carry out the functions.
To enable your enduring guardian to take into account unforeseen future circumstances, and to give your enduring guardian scope to make the most appropriate decisions given the circumstances and options available at the time, it may be better to identify the decision-making areas in general terms.
The most common functions to consider are:
- Accommodation – to decide where you live either temporarily or permanently.
- To decide what health care you receive e.g. which GP, dentist, specialist or health care professional you will see.
- To decide what personal services you should have to support and assist you e.g. case management, attendant care, house cleaning, shopping, counseling, therapy, training, employment, social, recreational etc.
- To give or withhold consent to medical and dental treatment on your behalf.
- To decide who you should have contact with, when visits may occur, for how long and where.
- Restrictive practices function e.g. this gives an enduring guardian authority to consent to the use of physical restraint, for a limited period of time, in order to protect a person from self-harm.
You will find the common decision-making areas or functions already included on the form of appointment.
May I give my Enduring Guardian Specific Directions?
It is also possible to give directions about how to exercise the particular decision-making functions you have given your enduring guardian.There is a difference between identifying the decision-making areas you wish to give your enduring guardian, and setting out a list of specific decisions you would like your enduring guardian to make in a range of circumstances. Hence, why most people specify the general functions in their Enduring Guardianship form and list specific decisions in their Advance Care Directive.
Having your Advance Care Directive and Enduring Guardianship as separate forms provides you with greater flexibility to adjust your Advance Care Directive as your health conditions change without the need to execute a new Enduring Guardianship document.
Revoking the Appointment of an Enduring Guardian
While you have legal capacity, you can revoke the appointment of an Enduring Guardian. To do this you need to complete a Revocation of Appointment of Enduring Guardian form. This form will also need to be witnessed by an eligible witness. You have to advise the enduring guardian in writing that their appointment has been revoked, otherwise the revocation is ineffective.
Only the Guardianship Division, NSW Civil & Administrative Tribunal can make changes to your Enduring Guardianship appointment if you have lost the capacity to do this for yourself.
General Principles of the Guardianship Act
The general principles of the Guardianship Act are:
• the welfare and interests of the person should be given paramount consideration;
• the freedom of decision and the freedom of action of the person should be restricted as little as possible;
• the person should be encouraged as far as possible to live a normal life in the community;
• the views of the person should be taken into consideration;
• it is important to preserve family relationships and the cultural and linguistic environment of the person should be recognised;
• the person should be encouraged as far as possible to be self-reliant in matters relating to personal, domestic and financial affairs;
• the person should be protected from abuse, neglect and exploitation;
• the community should be encouraged to apply and promote these principles.
Further information
References and Sample Templates:
http://www.tag.nsw.gov.au/enduring-guardian-faqs.html
https://planningaheadtools.com.au
UK Reference
In the UK the equivalent form is called a Lasting Power of Attorney - Health and Welfare.
Anne McR. Australia
NOTE: unless otherwise stated, the information in this document is based on the laws of New South Wales. People living in other places are invited to make their own inquiries. This document is for general information purposes only and does not constitute legal advice.