ARTICLE - Appointing an enduring guardian

Under changes to the Guardianship Act, it is now possible for anybody over the age of 18
to appoint their own enduring guardian. That appointee must sign a formal ' Appointment of Enduring Guardian' document. The appointment is made by one person (the appointor) to another person (the guardian or appointee).

It allows the guardian to make medical or lifestyle decisions on behalf of the appointor.

The role of a guardian is different to that of an attorney. An attorney can only act on behalf of another person in relation to financial matters.

Such an appointment only takes effect when you are no longer capable of making decisions, or are incapable of understanding the general nature and effect of any proposed treatment. It cannot override your objections. Examples of such medical or lifestyle decisions include:

• deciding where you will live, and with whom, eg in a hostel or nursing home
• deciding what health care you receive, eg treating doctor or community health care, etc
• deciding what other personal services you receive, eg home support services, etc
• giving consent, subject to the provisions of Part 5 of the Guardianship Act, for any minor and major treatments.

Both you and your appointed enduring guardian must sign the document in front of a solicitor, barrister or a Clerk of a Local Court.

More than one guardian can be appointed. You can appoint people jointly (all must make decisions in common) or separately (each may make decisions).

An enduring guardian must act in a bona fide manner. That is, acting in a way that will promote and maintain the health and wellbeing of the person who has appointed the guardian. In particular, an enduring guardian cannot commit on your behalf for special treatment which includes any new treatment that has not yet gained the support of a substantial number of medical practitioners or dentists specialising in that area.

The appointment should detail the functions the enduring guardian is to exercise, and any conditions or limitations you desire. It is advisable to consult a solicitor in order to discuss the powers and functions your guardian should have. A solicitor can draft the Appointment of Enduring Guardian for you.

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Contact Kerrisons for more information relating to the appointment of an enduring guardian: Phone 02 4655 7066 or email us today.