An Appointment of Enduring Guardian is a document under which the appointor appoints a person to make medical, healthcare, and lifestyle decisions on their behalf once they have lost the capacity to do so themselves.
In most instances, the power under the appointment will not be operable until a medical practitioner certifies that the appointor cannot make these decisions.
Key points to understand about appointments of enduring guardians include:
- Decision-Making Authority: The enduring guardian is authorised to make decisions regarding medical treatment, accommodation, and other lifestyle matters, as specified in the enduring guardian appointment document such as services and nursing care. An appointor may also make give directions for end-of-life care, organ donorship and the use of reproductive tissue. An enduring guardian cannot make decisions regarding financial and legal matters.
- Enduring Guardian Appointment Document: To establish the authority of an enduring guardian, the principal must create a legally binding document, known as an “Enduring Guardian Appointment” or “Appointment of Enduring Guardian.” This document outlines the powers granted to the enduring guardian and any specific instructions or limitations provided by the principal.
- Legal Requirements: The laws governing enduring guardianship can vary by jurisdiction. In New South Wales the appointment of enduring guardians is governed by specific legislation, Guardianship Act 1987 NSW. The document must meet legal requirements to be valid and enforceable.
a. Voluntary Appointment: The appointment of an enduring guardian is a voluntary act. The principal chooses someone they trust to make medical and lifestyle decisions on their behalf. The appointed enduring guardian must also be willing to accept the responsibility.
b. Decision-Making Capacity: An enduring guardian’s authority only comes into effect when the principal is determined to lack the capacity to make specific decisions. This incapacity is typically assessed and certified by medical professionals.Â
c. Duties and Responsibilities: The enduring guardian is legally obliged to act in the best interests of the appointor, considering their known preferences, values, and instructions whenever possible. They are expected to make decisions that promote the appointor’s well-being and quality of life.
d. Accountability: The enduring guardian may be required to report to relevant authorities or entities, ensuring that they are acting in the best interests of the principal.
e. Successor or Alternate Enduring Guardian: It is common to designate a substitute enduring guardian if the primary enduring guardian is unable or unwilling to fulfil their duties.
Enduring guardianship is designed to protect individuals who lose their decision-making capacity due to illness, injury, or other circumstances. It provides a legal framework for ensuring that their interests are safeguarded and their wishes are respected.
What should be included in an Enduring Guardian document in NSW?
When making an Appointment for Enduring Guardian in NSW, the document should include the following key elements:
- Appointment of an Enduring Guardian: Clearly state the full name, address, and contact details of the person you wish to appoint as your enduring guardian. This individual will be responsible for making healthcare, lifestyle, and medical treatment decisions on your behalf when you are unable to do so.
- Successor or Substitute Enduring Guardian: Like the primary enduring guardian, you should clearly state the full name and address of the person you wish to appoint as your substitute enduring guardian. It’s a good practice to do this in case your primary choice is unable or unwilling to act on your behalf. This individual will step in if your first choice cannot fulfil their duties.
- Your Preferences and Values: You can provide guidance or instructions to your enduring guardian regarding your preferences and values regarding medical care, treatment, and lifestyle decisions. These instructions can help your guardian make decisions that align with your wishes. This can include your wishes regarding organ donorship, invasive surgeries and any directions about your reproductive tissue and cells.
- Specific Powers: You can specify the extent of the powers you grant to your enduring guardian. For example, you can grant them authority to make decisions about medical treatment, accommodation, and end-of-life care.
- Restrictions and Limitations: If there are certain decisions or actions you want to exclude from your enduring guardian’s authority, you should specify these limitations in the document.
- Witnesses: The document must be signed and dated in the presence of a prescribed person such as a solicitor. A witness should not be the person appointed under the appointment of an enduring guardian. The witness should also certify that they believe you understand the nature and implications of the appointment.
- Legal Requirements: Ensure that the document complies with all the legal requirements of an Enduring Guardian appointment under the Guardianship Act 1987.
- Keep the Original Document Safe: After creating the Enduring Guardian document, store the original copy in a safe and accessible location, and provide a copy to your appointed enduring guardian, your primary healthcare provider, and any relevant family members.
- Review Periodically: Like all estate planning documents, it is important to review and update your Appointment of Enduring Guardian document periodically, especially if your circumstances, preferences, or relationships change.
Please note that while this information is intended to provide a general overview of creating an Enduring Guardian document in NSW, it’s important to consult with a legal professional for specific advice and to ensure that your document complies with the most current laws and regulations.
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