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Enduring Guardianship in NSW - Your way to plan ahead
What is enduring guardianship?
If you cannot make your own lifestyle decisions because of an accident, illness or disability, you cannot always be sure that informal support networks or people important to you will be available or recognised when significant decisions need to made on your behalf.
Enduring guardianship allows you to legally appoint a substitute decision-maker of your choice to make those lifestyle and health care decisions should you lose the capacity to make your own decisions at some time in the future.
How do I appoint an enduring guardian?
If you wish to appoint an enduring guardian, you must sign a form of appointment. You can appoint one or more enduring guardians with the same functions on the same form.
If you want to appoint two or more enduring guardians with different functions, you will need to fill out separate forms for each enduring guardian appointed.
The person or persons you appoint as your enduring guardian(s) must also sign the form to show that they have agreed to be your guardian. All signatures on the form must be witnessed by an eligible witness. An eligible witness is a NSW solicitor, NSW barrister, Registrar of the Local Court (formerly known as the Clerk of the Local Court), or an interstate legal practitioner.
Do you need to register the form of appointment?
There is no requirement to lodge the form with any agency or office. There is no register of people who have appointed an enduring guardian.
The enduring guardianship form is an important legal document. The original should be kept in a safe place, possibly where you keep other important legal documents such as your will and your enduring power of attorney. It is important that your enduring guardian has a copy of the form of appointment. Where possible this should be a certified copy, that is, a copy signed by the legal practitioner as being a true copy of the original. Your enduring guardian may be required at some time in the future to produce evidence of his or her appointment. The enduring guardian might need to know where the original is kept and be able to access it if needed.
When can the enduring guardian start making decisions?
The appointment of your enduring guardian takes effect only if you lose the capacity to make your own personal or lifestyle decisions.
A person in need of a guardian means a person who, because of a disability, is totally or partially incapable of making decisions.
Is enduring guardianship the same as an advance directive?
No. Enduring guardianship is about the legal appointment of a substitute decision-maker in the personal and lifestyle area. An advance directive is a document that sets out your wishes about future medical treatment if you lose the capacity to make these decisions for yourself.
An advance directive can provide a clear statement of your views about medical intervention and treatment at a particular point in time. This may assist family members, enduring guardians, health care providers and others by giving them some insight into your views and preferences for treatment. An advance directive must be current and up-to-date. In these circumstances the person writing the advance directive has had the opportunity to consider current treatments and medical technologies and to discuss the matter with treating medical practitioners. For example, an advance directive written by a 20-year-old, setting out her views about medical intervention in the event that she develops dementia may be less persuasive to health care professionals, guardians and family members than an advance directive written by a person who has recently been diagnosed with cancer. In this case, the person will have the opportunity to prepare an advance directive in consultation with the treating doctor.
For more information or to obtain a copy of ‘Using Advance Care Directives’ contact NSW Health on (02) 9391 9000 or visit their website www.health.nsw.gov.au
What is the difference between enduring guardianship and enduring powers of attorney?
Enduring guardianship is about personal and lifestyle decision-making while a power of attorney is about financial decision-making. A power of attorney is a legal document that appoints one person (the attorney) to act on behalf of another (the principal or donor) in relation to the principal's property and financial affairs. For example, the attorney may be appointed with authority to buy and sell property and operate your bank accounts. An ordinary power of attorney generally commences at the time it is signed and the attorney can start acting straightaway. It ceases to have any effect, and therefore cannot be used after you lose capacity.
An enduring power of attorney also commences at the time it is signed. This means that the attorney can start using the power of attorney immediately before you suffer any loss of capacity. An enduring power of attorney continues to have effect after you lose capacity.
For further information regarding enduring powers of attorney contact the Public Trustee NSW on (02) 9252 0523 or visit their website www.pt.nsw.gov.au
When does enduring guardianship end?
Enduring guardianship ends when the person who appointed the enduring guardian regains the capacity to make decisions or dies. Enduring guardianship also ends when it is revoked by:
- the person who made the appointment; or
- the Guardianship Tribunal; or
- the Supreme Court.
A joint enduring guardianship appointment will end if one of the joint enduring guardians dies, resigns or becomes incapacitated unless you have stated clearly in the form of appointment that you intend it to continue beyond these events. Enduring guardianship may end when the enduring guardian dies.
How can I obtain more information about enduring guardianship?
The Public Guardian has produced a guide on the appointment of an enduring guardian called "Enduring Guardianship: Your Way to Plan Ahead". For a free copy of the guide you can call us on (02) 8688 6070 or 1800 451 510.
Click here to download a copy of the guide in Word document format.
Enduring Guardianship: Your Way to Plan Ahead 2005 Revised Version
Click here to download a copy of the guide in portable document format.
Enduring Guardianship: Your Way to Plan Ahead 2005 Revised Version
(This file is in Adobe Acrobat PDF format. To obtain a free, downloadable copy of Adobe Acrobat Reader, go to http://www.adobe.com)
Click here to download these factsheets
Enduring Guardianship Factsheets in other languages
The forms relevant to Enduring Guardianship:
Is there any information for Greek and Italian speaking people?
The NSW Office of the Public Guardian is working with culturally and linguistically diverse (CALD) communities to increase awareness about appointing an enduring guardian.
The Public Guardian has produced an Italian and Greek bilingual Enduring Guardianship Fact Sheet.
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