Appointing an enduring guardian

Anyone over 18 can appoint an enduring guardian as long as they understand what they are signing (that is, if they have mental capacity). A person with a mild intellectual disability or in the early stages of dementia may still be able to appoint an enduring guardian if they have capacity at the time the document is made. If their capacity is in doubt, an assessment of their understanding needs to be made by an appropriate person, such as a doctor, psychologist or psychiatrist.

You can choose what type of decisions your guardian can make for you. These are called functions. You can give your enduring guardian as many or as few functions as you like. Possible functions include deciding:

• where you live
• what health care you receive
• what other personal services you receive (eg meals on wheels, home care)
• to consent to medical or dental treatment for you.

You can give your guardian directions about how to exercise the decision-making functions that you give them. For example, you can direct your guardian to consult with a family member or close friend whenever possible.

You can appoint more than one person as your enduring guardian. They must be at least 18 years old and be willing to accept their appointment. You should choose someone you trust to make decisions for you in your best interests. If you appoint more than one person you can appoint them so they can only make decisions together (jointly) or individually (severally). It is also a good idea to appoint another person as an ‘alternate’ to act for you if the other(s) can no longer do so (eg they lose capacity or die).

You can appoint the same person you choose as your attorney (in your enduring power of attorney) to be your enduring guardian as well.

You cannot appoint a person who is providing treatment, accommodation, support or care to you on a paid basis as your enduring guardian. You can, however, appoint a person receiving a carer payment or allowance.

First discuss the appointment with your chosen guardian(s) to make sure that they are willing to take on this responsibility if you can no longer make decisions for yourself. You should discuss the role of a guardian with them and make sure that they clearly understand your wishes and any conditions associated with any function.

You may also wish to discuss the appointment with other significant people in your life.

You will need to complete an Appointment of Enduring Guardian form (available from NCAT). You and your enduring guardian must sign the form and have your signatures witnessed by a solicitor, barrister, registrar of the Local Court, an employee of the NSW Trustee and Guardian or a qualified overseas lawyer. The signatures can be witnessed by different witnesses at different times. The witnesses must also sign a certificate stating that they have explained the effect of the document to you and that you understood its effect.

You can cross out the functions you do not want your guardian to have and add others if you wish, such as who can visit or stay with you, and when (this function needs to be specifically stated).

Keep the appointment form in a safe place such as with your other important papers where it can be found if needed. Tell someone close to you where it is and give a copy to your enduring guardian. You may also wish to give copies to other relevant people in your life and to your doctor and solicitor.

The appointment of your enduring guardian only starts if you become unable to make your own personal or lifestyle decisions. Your guardian may wish to seek the opinion of a doctor about your capacity to make your own decisions before acting on your behalf.

You can revoke (cancel) your appointment of enduring guardian at any time as long as you have capacity. To do this you must complete a Revocation of Appointment of Enduring Guardian form, available from the Guardianship Division of NCAT, and give it to your guardian. This form will also need to be witnessed by a lawyer or the Registrar of the Local Court.

You will need to complete a new form if you want to appoint a new person as your enduring guardian.

Anyone with an interest in your welfare can apply to the Guardianship Division of NCAT for a review of the appointment. NCAT can revoke the appointment, confirm it, change the guardian’s functions or appoint someone else to be your guardian.

NCAT does not supervise enduring guardians and will only become involved if it receives an application to review the appointment or receives information indicating a review of your appointment of your enduring guardian may be necessary.

If an enduring guardianship appointment was properly made in another Australian state or territory, it will be recognised in NSW. This does not apply to enduring guardianship appointments which are made overseas.

If you want your enduring guardianship appointment to be used in another state or overseas, you should make enquiries in that state or country. Every state and country have different laws about enduring guardianship.