Enduring Guardianship

Making lifestyle decisions and planning for the future.

By Christine Perry and Karin Bergseng

Think ahead many years or even to the near future. If something happens to you, who will decide where you will live, what health care you receive, what other kinds of personal services you receive together with giving or withholding consent to any medical and dental treatment. A Will, Power of Attorney or close relationship does not empower your husband, wife, children or doctors to make these decisions on your behalf except in the case of medical emergency or otherwise by a person appointed by the Public Guardianship Board. The appointment of an enduring guardian allows an adult (who has capacity) to appoint one or more persons to make these personal and lifestyle decisions in the event of your incapacity because of an accident, illness or disability. This power will not, however, override any objection you may raise to any medical procedure. The enduring guardian cannot charge for the guardianship services. The appointment of an enduring guardian in writing is a legal formalisation of power vested in someone close to you. Someone whom you can trust to understand and carry out your wishes or act in your best interests if you become incapacitated. However you must appoint the guardian when you have capacity. Enduring guardianship does not provide access to your property or finances and should therefore be dovetailed with an enduring power of attorney in favour of your enduring guardian or another person. Unlike the ordinary power of attorney, the enduring power of attorney will not come into effect immediately, and will be triggered by your incapacity. Each should however be informed of the other’s appointment if they are not the same person.

Examples of where beneficial:

• A husband and wife where one has an illness or where future incapacity may occur ie a family history of dementia
  
• A person who wishes to appoint one or more children to make decisions about where they will live etc in the event that they become incapacitated ie a sudden brain injury caused by a motor vehicle accident

The guardian

In appointing an enduring guardian you should give regard to factors such as where the guardian lives, do they have the time to assist you and make the necessary enquiries, are they emotionally capable of making the difficult decisions on your behalf. The role can be a difficult one in trying to balance the various issues to make the right decision on your behalf with the resources available. It can also be a thankless task. As such it needs to be someone willing to take on this burden. If incapacity strikes you at an elderly age, your husband or wife may also be suffering from incapacity. Don’t forget this is about planning for the future and may not arise for many years to come. Your enduring guardian (who must be 18 years or over and personally known to you), cannot be a person who is paid for services provided such as a nurse, nursing home staff, lawyer or accountant. The exception is a person who receives a carer’s allowance. A guardian is usually a spouse, child, sibling, or a close friend who will be willing to spend time for no reward to assist in making decisions when you cannot do so. You can appoint:

(a) A sole guardian;

(b) Two or more guardians, jointly or severally;

(c) One guardian with a fallback person ie husband and then son

(d) Insert an obligation that your guardian consult with specified persons before making a decision ie a child consulting with their siblings

An enduring guardian can resign from the appointment at any time. The guardianship is automatically revoked if you subsequently marry. It is automatically revoked if you subsequently divorce a spouse who is also your enduring guardian or your enduring guardian also becomes incapacitated. To protect against these circumstances you should also nominate a substitute guardian to take over.

The power

In making decisions your guardian must consider your views, the views of other important people in your life and the principles of Guardianship Act 1987. The principles in the Act aim to promote independence and choice for the person with an incapacity, as well as ensuring care and protection from neglect and exploitation.

There is a difference between identifying the decision-making areas you wish to give your enduring guardian and setting out a list of specific decisions. Whilst you can give your enduring guardian extra or specific decision making powers these should be generally stated to take into account unforeseen circum - stances or the passage of time. For example, “If I ever need to go to a nursing home I would like to go to St Moritz Nursing Home at 1 Sydney Road, Sydney.” In 25 years time if you do need to enter a nursing home, St Moritz may have closed or changed hands or become run down and if you could decide, it would be the last place on earth you would like to be.

A specific power should still be general and specify things such as “If I need to go to a nursing home I would like it to be of a high standard in my home town of Sydney”. This gives your enduring guardian guidance and will help if the decision about whether or not to liquidate your fixed assets is warranted pursuant to your enduring power of attorney.

The power of the enduring guardian only comes into effect if you lose the capacity to make your own personal or lifestyle decisions. If you regain your capacity the guardianship would no longer be in effect. In some cases, the loss of capacity is clear ie where a severe brain injury is suffered. In other cases it may be temporary or arise slowly in which case a medical certificate will need to be obtained or a ruling from the Guardianship Tribunal.

The guardian cannot consent to:

• Treatment that is for a purpose other than to promote and maintain the person’s health and wellbeing
  
• Special medical treatment such as sterilisation, termination of pregnancy or experimental treatments
  
• Treatment to which the patient is objecting

The role of enduring guardian is a private appointment and is not subject to supervision and no obligation that the guardian report on their role or decision making. If however someone has a genuine concern, the Guardianship Tribunal will review the appointment and it may be confirmed, revoked or the functions varied or limited.

Guardian support

The Office of the Public Guardian has established the Private Guardian Support Unit to provide information and support to guardians and is a link with guardians to deal with issues such as:

• Responsibilities of a guardian
  
• Making decisions on behalf of another
  
• To assist when disputes arise
  
• Working with service providers and doctors
  
• Resources to assist the guardian

How do I appoint an enduring guardian?

Simply complete the one page form that can be obtained from the Private Guardian Support Unit. The guardian/s must accept the appointment by signing the form as well. The witness being a solicitor/barrister/clerk of the local court must also witness the signatures and sign the form. There is no formal lodgement or register.

Accordingly, in planning for your future you should give consideration to the following:

• A Will
  
• Appointment of An Enduring Guardian
  
• An Enduring Power of Attorney
  
• A Living Will or Advance Directive ie a clear statement of your views about medical intervention and treatment.
  

These documents should be kept up to date and have regard for new medical treatments available, relationships with nominated persons and your finances and property. If you need assistance or advice concerning any of the above matters please do not hesitate to contact MBP Legal.