Understanding Enduring Guardianship
Preparing legal, financial and care arrangements as you or a loved one grow older may seem daunting. Particularly when you’re faced with jargon like “Enduring Guardianship” and “Power of Attorney”. However, having legal arrangements in place that are designed to help ensure you or your loved one’s wishes are carried out, can make things easier.
The earlier you can start to think about these decisions, the better.
An Enduring Guardian or Power of Attorney is someone you legally appoint to make decisions on your behalf. If you notice you no longer want to, or are able to, manage your own affairs, or you notice poor eyesight or an inability to make decisions is affecting your judgement, it might be time to appoint somebody else as your decision-maker.
Here we explain ‘Enduring Guardianship’ so you can decide whether it’s something you wish to consider. You can read our other blog about ‘Power of Attorney’ if you’re unsure about the differences.
What is an Enduring Guardian?
An Enduring Guardian is a trusted person (such as your spouse, a family member or friend) legally appointed to make health and lifestyle decisions, when you cannot make these decisions for yourself. You can appoint an Enduring Guardian yourself if you have the capacity to make this choice on your own. Alternatively, if you are caring for a loved one, you can obtain permission to act and make decisions on that person’s behalf.
The formal legal document you sign to appoint an Enduring Guardian is called an Enduring Guardianship.
It’s important to understand that an Enduring Guardian can only start making decisions on your behalf when you lose capacity or become incapacitated.
An Enduring Guardian can legally make decisions on your behalf about:
- where your live;
- what home care services you receive; and
- the medical treatments you are given including palliative care and life-extending treatments.
An Enduring Guardian cannot make decisions about:
- your money;
- financial matters;
- legal matters;
- the way you vote; or
- anything that is against the law.
How to appoint an Enduring Guardian
Each state and territory may have different requirements in relation to enduring guardianship – be sure to speak with a lawyer or relevant agency for up-to-date advice.
Generally speaking, to appoint an Enduring Guardian you and the person who is appointed as your Enduring Guardian must complete and sign a form. 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 form with any department, but it’s a good idea to keep it with your other legal documents and make a certified copy for your guardian to store safely.
You may wish to include some directions or information on your form to assist your Enduring Guardian with making decisions.
If you wish to change or withdraw your Enduring Guardian, you can do so by filling in a form to revoke the appointment. Again, you’ll need to do this with an eligible witness and once complete, give it to your guardian.
Even if you decide not to appoint an Enduring Guardian, starting to think about how you might manage your affairs as you get older is a good way to prepare for the future. If you care for an elderly relative or friend, starting this discussion early can relieve some of the stress you may feel.
For more information click on the link below that relates to your State or Territory or contact a solicitor.