Enduring guardian and enduring guardianship

What is an enduring guardian and enduring guardianship?

An enduring guardianship is a formal legal document that appoints a trusted person of your choosing to become your enduring guardian and make lifestyle, health and medical decisions on your behalf. You can provide an enduring guardian with responsibility over decisions you can no longer make for yourself such as; where you live, what home care services you receive and what medical treatments you are given. This can also include decisions over palliative care and life-extending treatments.

In some states such as New South Wales and Tasmania, an enduring guardian can also be authorised to make medical and health decisions for you.

Guidelines for enduring guardianship

To make an enduring guardianship, you and your chosen guardian both need to be 18 years or older and have full legal capacity to make the agreement.

You can appoint more than one enduring guardian, but they must agree on any decisions on your behalf jointly. You can also appoint someone to take over if one or more of your enduring guardians cannot continue in their role.

You can also restrict their decision-making role, for example, you may allow them to decide what treatment you receive, but not where you live.

An enduring guardian cannot make decisions that are against the law; making or changing a will; approve medical or dental treatment when the person is against it; or specialist medical treatment.

An enduring guardian also cannot make decisions regarding financial or legal decisions. To appoint someone to manage your money if you lose capacity, you will need to make an enduring power of attorney.

An enduring guardianship only comes into effect if or when you lose capacity and is only effective while you are incapacitated. While you may never need to use it, an enduring guardianship offers a valuable way to plan for the future, especially in case of unexpected medical events.

Setting up an enduring guardianship

You must fill in a form to appoint an Enduring Guardian. This must also be signed by the person you appoint as your guardian. All signatures must be witnessed by an eligible person, such as a legal practitioner, Registrar of the Local Court or Public Trustee official.

You don’t need to lodge your enduring guardianship with any department, but it is a good idea to keep it with your other legal documents and make a certified copy for your guardian. You can also withdraw or change your enduring guardian by filling in a form to revoke the appointment with an eligible witness and giving it to your guardian.

If you have no enduring guardian in place and your ability to make decisions is impaired, an application may be made to appoint a guardian or administrator for you.

Each state and territory may have different information about enduing guardianship so it is important to contact a lawyer or the relevant agency for advice.

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