Planning for the future can feel overwhelming, especially when it involves decisions about your health, lifestyle, and care. An Enduring Guardian can play a pivotal role in ensuring your wishes are respected if you lose the capacity to make decisions for yourself. Here’s what you need to know about appointing an Enduring Guardian in New South Wales (NSW).

What is an Enduring Guardian?

An Enduring Guardian is someone you legally appoint to make decisions about your health, lifestyle, and accommodation if you are unable to do so due to illness, injury, or disability. Unlike an Enduring Power of Attorney, which deals with financial and legal decisions, an Enduring Guardian focuses on personal and medical matters.

Why Appoint an Enduring Guardian?

Life is unpredictable, and circumstances such as accidents or illnesses can render you incapable of making decisions. Without an Enduring Guardian, decisions about your care may fall to a court-appointed guardian or tribunal, potentially conflicting with your wishes. By appointing someone you trust, you ensure your preferences are upheld.

Decisions Your Enduring Guardian Can Make

Your Enduring Guardian can make decisions in areas you specify, such as:

• Where you live and the services you receive.
• Health, medical, and dental treatments.
• Consent to restrictive practices, such as seclusion or restraints, if authorised.

However, there are limits. They cannot:

• Manage your finances (this requires an Enduring Power of Attorney).
• Make or change your will.
• Consent to unlawful activities.

How to Appoint an Enduring Guardian

To appoint an Enduring Guardian in NSW, you must:

1. Be over 18 years of age and have decision-making capacity.
2. Choose a trusted individual who understands your values and is willing to act in your best interest.
3. Complete the required legal documents, ensuring they are signed in the presence of an eligible witness, such as a solicitor or a Registrar of the NSW Local Court.

You can appoint multiple guardians to act jointly, severally, or a combination of both, as well as substitute guardians to step in if your original appointee cannot fulfill the role.

Important Considerations

• Flexibility: Be thoughtful about applying specific directions in your Enduring Guardianship document. While providing clarity, overly rigid instructions might reduce your guardian’s ability to adapt to unforeseen circumstances.
• Restrictive Practices: If you foresee a need for restrictive practices, such as the use of a wheelchair restraint, you must explicitly authorise your guardian to consent to such measures. Otherwise, an application to the NSW Civil and Administrative Tribunal (NCAT) may be required.

When the Role Begins and Ends

Your Enduring Guardian’s authority begins only when you lose capacity and continues until:

• You revoke their appointment while having capacity.
• They resign, become unable to fulfill their duties, or pass away.
• The appointment is altered or revoked by NCAT or the NSW Supreme Court.

Keeping Your Enduring Guardianship Document

Once completed, your Enduring Guardianship document should be stored securely. Sharing copies with your appointed guardian, family, and other relevant parties ensures that your wishes are accessible when needed.

Planning for unforeseen circumstances is a vital step in protecting your future well-being. If you’re considering appointing an Enduring Guardian or need assistance with the process, Montgomery Legal Practice can guide you through every step, ensuring your decisions are legally sound and reflective of your wishes. Contact us today for tailored advice.