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What is an enduring guardianship?

An enduring guardianship form signed by you empowers a person or persons chosen by you to make medical and lifestyle decisions on your behalf, when you are unable to do so for yourself. The person who you appoint and empower to make decisions on your behalf is called your “enduring guardian”.

You must be at least 18 years of age to be able to appoint an enduring guardian.

In NSW, the law on enduring guardianship is largely found in the Guardianship Act 1987 (NSW).

An enduring guardianship form is an important and powerful legal document. An enduring guardian has the power to decide where you live, decide what health care you receive, decide what kinds of personal services you receive and can give consent to the carrying out of medical and dental treatment on you.

An enduring guardianship cannot be used for financial decisions on your behalf. You should appoint an enduring attorney under the Powers of Attorney Act 2003 if you want someone to be able to make those decisions.

Who can be your enduring guardian?

An enduring guardian can be a family member or friend or someone else who you trust to look after your medical and lifestyle needs. Most appointments of enduring guardians are of spouses and children, or brothers and sisters.

An enduring guardian must be 18 years of age or older.

You should not appoint any person who may have a conflict of interest between your affairs and their own. In particular, the Guardianship Act prohibits the appointment as an enduring guardian, of any person who is in any way involved in providing to you, for a fee or reward, any:

  • medical services
  • accommodation
  • any other support services.

Likewise, no one who is a spouse, parent, child, brother or sister of anyone who provides those services to you may be your enduring guardian.

Choosing your enduring guardian

You can appoint one or more guardians.

You can also appoint one or more additional persons to act as a back-up for your enduring guardian, in case your usual enduring guardian is ever unable or unwilling to act. This additional person is called a “substitute enduring guardian”.

How do substitute enduring guardians work?

Substitute enduring guardians are only empowered to act when the original enduring guardian for whom they are a substitute dies, resigns or is suffering some incapacity which prevents the enduring guardian from acting.

It is obviously also essential that the enduring guardian has signed the enduring guardianship form.

What decisions can your enduring guardian make?

The things that an enduring guardian may do are set out in Section 6E of the Guardianship Act 1987.

An enduring guardian is authorised to:

  • decide the place where you are to live,
  • decide on the healthcare that you are to receive,
  • decide on the kinds of personal services that you are to receive, and
  • give consent to the carrying out of medical or dental treatment for you.

An enduring guardian may on your behalf, sign and do all things as are necessary to give effect to anything which the enduring guardian is empowered to do.

Enduring guardians are entitled to information held by public sector agencies and to health records, where the agency is satisfied that disclosure of the information to the enduring guardian would assist the guardian to exercise his or her functions. The enduring guardian has the same right of access to information about you as you do.

An enduring Guardianship cannot be used for financial decisions. You should appoint an enduring attorney if you want someone else to be able to make those decisions.

Can you insert limitations on your guardian’s power?

Because it is possible that you might specify a limitation that affects the validity of the appointment of the enduring guardian, we have not included a facility for you to do so. If you wish to include limitations, we recommend that you consult another solicitor to discuss the preparation of a limited enduring guardianship document, or contact us about the manual preparation of such a document.

How can enduring guardians decide?

If you have chosen more than 1 enduring guardian (including substitute enduring guardians), and if you provide for them to decide “jointly”, then they all must agree. It is wise to be careful about appointing several enduring guardians jointly. The more of them that there are, the harder it will be for them to all agree. If you have chosen more than 1 enduring guardian and provide for them to act severally, then any one of them can make a decision. It is up to you to decide how you want your enduring guardians to decide.

Can LawOnline Witness and Certify the Document?

Yes, under the Covid Emergency Measures legislation, it is currently possible for the signing of an enduring power of attorney and enduring guardianship document to be witnessed by a prescribed witness, viewing the person who is signing the document by audio visual means. Advice can then also be given by the same means and the prescribed witness can then sign the necessary attestation and return the signed document to you electronically.

LawOnline’s solicitor is therefore currently able to witness and certify your signature of your enduring power of attorney or enduring guardianship document during a Zoom session. Our fee for doing that is $150.00 including GST. If you wish to arrange for us to advise and witness your signature and to give our certificate, please send us an email to support@lawonline.co so that we can make the necessary arrangements. You are, of course, free to make your own arrangements if you have access to a solicitor or to one of the other prescribed witnesses.

Who can be a witness to an enduring guardianship form in NSW?

The signature of the enduring guardianship form must be witnessed by an eligible witness. The enduring guardianship will not be valid unless it is properly witnessed by an eligible witness.

The expression “eligible witness” means:

  • an Australian legal practitioner, (i.e., a solicitor or a barrister) or
  • a registrar of the Local Court, or
  • an approved employee of the NSW Trustee and Guardian, or
  • a foreign lawyer, or
  • an approved Service NSW employee.

Can LawOnline witness and certify the enduring guardianship form?

Yes, under the Covid Emergency Measures legislation, it is currently possible for the signing of an enduring guardianship form to be witnessed by a prescribed witness, viewing the person who is signing the document by Zoom or Skype. Advice can then also be given by the same means and the witness can then sign the necessary attestation and return that to you electronically.

LawOnline’s solicitors are therefore currently able to witness and certify your signature of your enduring guardianship form during a Zoom or Skype session. Our fee for doing that is $220.00 including GST. If you wish to arrange for us to advise and witness your signature and to give our certificate, please send us an email to support@lawonline.co so that we can make the necessary arrangements. You are, of course, free to make your own arrangements if you have access to a solicitor or to one of the other eligible witnesses.

How can an enduring guardianship be terminated?

As long as you have legal capacity, you may revoke any appointment that you make of an enduring guardian. You revoke the appointment by signing a written form of revocation, which can be found in the schedule to the Guardianship Regulations 2016. Your signature of the form of revocation must be witnessed by one of the eligible witnesses. The eligible witness must also sign a certificate confirming that you signed the form voluntarily, and appeared to understand its effect. Once signed, certified and witnessed, an original signed copy of the form of revocation must be given to the enduring guardian whose appointment is being revoked. The revocation is effective from the moment when the signed and certified form is given to the enduring guardian.

It’s also important to be aware that your appointment of an enduring guardian is automatically revoked if you marry or remarry someone (other than the enduring guardian) after the date on which the enduring guardianship appointment form was signed.

What happen when the form is filled out and signed?

You do not have to submit or register this form anywhere.

You need to complete it, make sure it is signed and witnessed properly, and then keep the original in a safe place. You should keep all pages of this form together at all times. You do not need to print and keep the “important information” section on the last 2 pages.

Each of the persons who you appoint as your enduring attorney must also sign the acceptance of the appointment in the place provided in the form.

Open Advice

Your Appointment of an Enduring Guardian - NSW

Personal

Your Appointment of an Enduring Guardian

You will need to have a special type of witness to properly complete this document.

Guardian

Guardian

 


†This will terminate all of your appointments, including any substitutes who you have named.

Decisions

How guardians decide





Powers

Powers

 



Generate

Generate Document

What you will need to have when you generate your document

  • A printer to print out the form. Even if you fill the form out on a computer, you will need to print it for signing.
  • A Prescribed Witness to certify and sign the form. for more information.
  • You can save the form and finish it later if you need to.

Signing the form (after it is filled out)

  • print out a sufficient number of copies so that you and each of your guardians can have a signed original copy.
  • sign each copy of the form in front of a Prescribed Witness.
  • have your Prescribed Witness sign and date the form in front of you.
  • have the guardian or guardians sign the statement of acceptance. The attorney’s signature does not need to be witnessed.