Enduring Guardian (NSW)

Put simply, having a well drafted and appropriate Enduring Guardian document in place can save a lot of pain and heartache for your loved ones. It authorises the people you choose to make medical and lifestyle decisions on your behalf with minimal ‘red-tape’. This can be a great relief at what is often a very stressful and emotionally draining time for them.

Having an Enduring Guardian and power of attorney in place also gives you certainty and peace of mind knowing that if you ever were to lose capacity, you have people you trust making these important decisions on your behalf. For more information on powers of attorney, particularly Enduring Powers of Attorney, click here.

If you lose capacity and have not made an appointment of an enduring guardian to make medical, health and lifestyle decisions, someone will need to make an application to the Guardianship Division, NSW Civil & Administrative Tribunal to be appointed as your guardian. You will not have any say over who is appointed, and it may not be who you would have intended.

If no one suitable is available to be your guardian, the Tribunal may appoint an independent Public official called the Public Guardian to make lifestyle and medical decisions on your behalf.

An Enduring Guardian NSW allows you to appoint one or more persons as your guardian to make lifestyle and medical decisions for you if you are no longer capable of doing so. However, your guardian is not authorised to make financial decisions on your behalf.

The Enduring Power of Attorney NSW document allows you to appoint one or more persons as your attorney to make financial decisions on your behalf. An attorney appointed under an Enduring Power of Attorney NSW is not authorised to make lifestyle and medical decisions on your behalf.

For these reasons Estate First Lawyers recommends implementing both an Enduring Guardian and Enduring Power of Attorney to cover the full ambit of decisions that may need to be made on your behalf if you lose capacity to handle your affairs.

The appointment of your Enduring Guardian takes effect only once you lose capacity and become incapable of making your own medical or lifestyle decisions. In some cases, it will be clear when you have lost capacity (for example, if you have dementia or are in a coma). However, in certain circumstances, it may be less obvious as to whether you have in fact lost capacity to make decisions for yourself. For example, if you have early onset dementia, your decision-making capacity may fluctuate from day to day or you may have sufficient capacity to make simple decisions, but not more complex ones.

If there is concern or disagreement over your capacity to make your own decisions, the Guardianship Act (NSW) states that a medical certificate may be needed to establish whether your Enduring Guardian can exercise their authority.