While no one expects to lose the capacity to manage their own affairs, many people feel comfort from knowing that they have planned ahead and made arrangements for a trusted relative or friend to make decisions on their behalf if something does happen.
An Appointment of Enduring Guardianship appoints someone to make decisions relating to health and lifestyle if the person (“appointor”) becomes incapable of making those decisions for themselves.
What is an enduring guardian appointment form?
It is a document made by a person (who is most commonly referred to as the “appointor”) who confers authority on another person (who is commonly called the “enduring guardian”) to make decisions concerning some or all of the issues affecting the appointor’s person. These personal decisions commonly relate to the appointor’s accommodation, health, care and wellbeing.
Who can be an appointor?
Only an individual can be an appointor. The person must have capacity to make an enduring guardian appointment. This means a person must be at least 18 years of age to appoint an enduring guardian. Other than this requirement, capacity is assessed as being relative to the nature, terms, purpose and context of the particular issues involved.
How is an enduring guardian appointed?
There are a number of formal requirements which must be strictly followed.Firstly, the appointor must:
- use the prescribed form (or similar);
- sign the form; and
- do so, before a prescribed witness.
Next, the prescribed witness must certify that the appointor signed the appointment voluntarily, in the legal practitioner’s presence and that the appointor appeared to understand the effect of the document.The enduring guardian must also sign, accepting the appointment, and do so before a prescribed witness.The prescribed witness who witnesses the enduring guardian’s acceptance must certify that the enduring guardian signed voluntarily in the legal practitioner’s presence, and also appeared to understand the effect of the document.
When does the enduring guardian’s appointment end?
There are a number of ways for the appointment to cease, such as:
- the appointor may marry someone other than the enduring guardian;
- the appointor can revoke the appointment, whilst he or she has capacity;
- by completing a document revoking the appointment;
- the enduring guardian may resign (but if the appointor has lost the capacity to appoint another enduring
guardian, the Guardianship Tribunal must approve an enduring guardian’s resignation);
- the enduring guardian may die or become incapacitated;
- if a Guardianship Order is made by the Guardianship Tribunal or Supreme Court;
- if the Guardianship Tribunal or Supreme Court orders the suspension of the appointment; or
- the appointor may die.
Who can be an enduring guardian?
Any individual who is over the age of 18 years, has the capacity to act, and is not ineligible to be an enduring guardian can be appointed as an enduring guardian.
The following, however, are ineligible to be appointed as an enduring guardian:
- An individual who, in a professional or administrative capacity, is directly or indirectly responsible for or involved in the provision of any of the following services to the appointor for a fee or reward (i.e. a provider of medical services, accommodation, or services supporting the appointor’s daily activities), and;
- An individual who is the spouse, parent, child, brother or sister of the person described at 1 above.
What principals govern the enduring guardian’s decisions?
The enduring guardian must act with the following ideals and concepts in mind:
- the appointor’s views;
- the welfare and interests of the appointor;
- protection from neglect, abuse and exploitation;
- freedom of decision and action by the appointor;
- maintenance of a normal community life;
- family, cultural and linguistic relationships and environments; and
- self reliance in personal, domestic and financial affairs.
What is the difference between a Power of Attorney and Enduring Guardian?
Powers of Attorney and Enduring Guardian Appointments give authority to another person to be the document-maker’s substitute decision-maker. With the relatively rare exception of irrevocable powers of attorney, persons given authority by both documents only have authority during the lifetime of the principal. However, an attorney (appointed by a power of attorney) only has authority to make decisions concerning the property (or legal and financial affairs). In contrast, an enduring guardian has authority to make decisions for the document-maker’s (the appointor’s) principal.
In addition, an enduring guardian cannot make substitute decisions unless the appointor is unable to manage his or her person, whilst the situations in which an attorney can act will be determined by the principal when making the power of attorney.
Download our PDF-Enduring Guardian