Enduring Guardianship Lawyers Sydney

An Enduring Guardianship is a legal appointment that lets you choose the person who will make health, medical and lifestyle decisions for you if you can no longer make them yourself. The person you choose is called your enduring guardian.

The appointment does not take effect straight away. It only begins if you lose the capacity to make these decisions on your own, and it continues for as long as that incapacity lasts. That is what makes the appointment “enduring”.

Enduring Guardianship in NSW is governed by the Guardianship Act 1987. If you do not make an appointment while you have capacity, no one can make one for you later. Instead, an application would need to be made to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT), and the Tribunal decides who is appointed. That may not be the person you would have chosen.

What Decisions Can an Enduring Guardian Make?

You decide which functions to give your enduring guardian. Commonly authorised functions include:

• deciding where you live, including a move into residential aged care;
• deciding what health care you receive;
• consenting to medical and dental treatment on your behalf;
• deciding what personal services and supports are organised for you at home;
• any other function you choose to include in the appointment.

You can also place limits, conditions or instructions on any of these functions. Many people include directions about the type of care they favour, the people they want consulted, or the treatments they would prefer to avoid.

What an Enduring Guardian Cannot Do

The role has real limits. An enduring guardian cannot:

• make decisions about your money, property, shares or other financial matters;
• make or change your will;
• consent to treatment you are objecting to;
• make any decision that would be contrary to law;
• act while you still have capacity to decide for yourself.

A guardian can only consent to medical and dental treatment that promotes or maintains your health and wellbeing.

Enduring Guardianship or Power of Attorney?

These two documents are often confused, and they are not interchangeable. Both are worth having.

An Enduring Guardianship covers personal decisions: your health, your medical treatment, your accommodation and the services you receive. An Enduring Power of Attorney covers financial and property decisions, such as operating your bank accounts, paying your bills and dealing with real estate.

One document does not cover the other. If you appoint an enduring guardian but no attorney, your family may still need to apply to NCAT to have a financial manager appointed. Most clients who come to us for an Enduring Guardianship prepare both documents at the same time, usually alongside their will and broader estate plan.

Who Can You Appoint as an Enduring Guardian?

Your enduring guardian must be at least 18 years old and must agree to take on the role by signing the appointment. Most people appoint a spouse, an adult child, another family member or a close friend.

Choose someone you trust to act in your interests, who recognises what matters to you, and who is willing to speak up in a hospital or aged care setting when it counts.

You can also:

• appoint more than one enduring guardian, and state whether they act jointly, severally, or jointly and severally;
• appoint an alternative or substitute guardian to step in if your first choice dies, resigns or becomes unable to act.

Appointing joint guardians can be a safeguard, but it can also cause delay if the two of them disagree. It is worth thinking through how your appointees are likely to work together before you sign.

How to Appoint an Enduring Guardian in NSW

There are formal requirements, and an appointment that does not meet them may not be effective when your family needs it most.

1. You must have capacity. You need to understand the nature and effect of the appointment at the time you make it. An Enduring Guardianship cannot be made for someone who has already lost capacity.
2. The prescribed form must be used. The appointment must be made in the form required under the Guardianship Act 1987, setting out who you are appointing, on what basis, which functions they have and any limits you want to impose.
3. Every signature must be witnessed. You, your guardian and any alternative guardian must sign in front of an authorised witness. Eligible witnesses include an Australian legal practitioner holding a current practising certificate and a registrar of the Local Court. A witness cannot be one of the guardians being appointed.
4. Your guardian must accept. The appointment takes effect only once the person you have chosen has signed to accept the role.
5. Store it where it can be found. Give copies to your guardian, your GP and your family, and tell them where the original is kept.

 Changing or Revoking an Enduring Guardianship

While you still have capacity, you can revoke your Enduring Guardianship at any time. The revocation must be in writing and witnessed, and you should notify your guardian and anyone holding a copy.

An enduring guardian can also resign. If you still have capacity, they can resign by giving you written notice. If you have already lost capacity, their resignation needs the approval of NCAT.

An appointment should also be reviewed after a major life change, such as a separation, a divorce or the death of a guardian. NCAT has the power to review, vary, suspend or revoke an enduring guardianship appointment if a concern is raised about it.

An Enduring Guardianship also ends when you die. Your estate is then dealt with under your will, and your executor will usually need to apply for probate before they can administer it.

Why Enduring Guardianship Matters

Families often recognise the gap at the worst possible time. A parent has a stroke, a diagnosis changes overnight, and a hospital needs a decision about treatment or discharge. Without an appointment in place, there is no one with clear legal authority to give it.

An Enduring Guardianship removes that uncertainty. It puts your choice on the record, gives your guardian the standing to act, and minimises the risk that your family is left making a Tribunal application during an already difficult period.

Get Expert Legal Advice

V.S. George Lawyers can guide you through every step of appointing an enduring guardian. Our Sydney estate planning lawyers will help you decide which functions to authorise, choose the right person for the role, draft any limits or directions you want included, and make sure the appointment is properly signed and witnessed.

We can also prepare your Enduring Power of Attorney and your will at the same time, and advise what suits your circumstances, so your personal, financial and estate arrangements work together.

Contact one of our lawyers at [email protected] or call (02) 9150 6991 for expert legal advice on Enduring Guardianship in NSW.