Enduring Guardianship
8 December 2021 in Wills and Estates LawWhat is Enduring Guardianship?
Enduring guardianship refers to the appointment of a person who is allowed to make decisions relating to your health and lifestyle in circumstances where you cannot make these decisions for yourself.
You may want to consider appointing someone as your enduring guardian if you want to be prepared for unforeseen circumstances where you can no longer make lifestyle and health decisions for yourself.
Brander Smith McKnight’s expert wills and estates lawyers can assist you with drafting effective enduring guardianship documents.
Our team of experienced wills and estates lawyers can also help you with ensuring that you fully understand the implication of these documents and the responsibilities they create.
What type of decisions does an Enduring Guardian make?
An Enduring Guardian is someone that is empowered to make various decisions relating to a person’s lifestyle. Some examples of decisions Enduring Guardian’s can make on your behalf include:
- Deciding whether a persons should obtain medical treatment
- Deciding whether a persons should obtain dental treatment
- Deciding where a person should live
- Deciding whether a person should live in a nursing home
Why BSM Lawyers?
We always take the time to listen carefully and thoroughly to your needs, we then advise on the most appropriate documents and structure for you.
Our lawyers meticulously draft your documents and then provide you with the opportunity to review these prior to finalisation.
We pride ourselves on creating watertight documents to minimise future risks in a cost-effective manner with a fixed fee. Compare our prices.
Brander Smith McKnight Lawyers also provide professional legal advice and advocacy for executors in any estate including distribution and contested estates.
We have offices conveniently located in Sutherland, Parramatta, Wollongong and Sydney CBD.
For more information on how our wills and estates lawyers can assist you, please contact us on 02 8539 7475.
FAQs
What is the difference between Power of Attorney and Enduring Guardianship?
Power of Attorney refers to the appointment of a person who is allowed to make financial decisions on your behalf.
Enduring guardianship is distinct from the Power of Attorney because it does not authorise a person to make financial decisions on your behalf. Instead, Enduring guardianship empowers a person to make lifestyle and heath decisions on another person’s behalf.
How much does an Enduring Guardianship document cost?
Brander Smith McKnight’s wills and estates lawyers provide meticulously drafted Enduring Guardianship documents that you require at a fixed fee.
For more information on the costs of a will, please contact us on 02 8539 7475.
Can someone be given both Power of Attorney and made your Enduring Guardian?
Yes, you can appoint someone as a Power of Attorney and make them your Enduring Guardian. This may be appropriate where you want to have someone else make both financial and lifestyle decisions on your behalf.
Should I draft an Enduring Guardianship document myself?
Whilst you can prepare an Enduring Guardianship document yourself it may not be wise to do so. You should consider having a lawyer draft an Enduring Guardianship document for you to ensure that it is both legally valid and properly reflects your intentions. In addition, a lawyer can fully explain to you all aspects of an Enduring Guardianship document to ensure you understand its effect.
What is capacity?
In the context of Enduring Guardianship documents, capacity refers to a person’s ability to understand, communicate and evaluate their choices. For example, where a mental illness or accident has rendered a person incapable of comprehending health care choices presented to them, they may not be considered to have the legal capacity to make those choices.
An Enduring Guardianship document will be effective even where a party has lost the capacity to make lifestyle decisions for themselves.
For more information on the concept of capacity, please contact us on 02 8539 7475.
Who should I appoint as an Enduring Guardian?
An Enduring Guardian can be anyone over the age of 18 and should be someone that you trust completely. A suitable Enduring Guardian may be a trustworthy spouse, child, family member or close friend.
How can an Enduring Guardianship end?
An Enduring Guardianship can end in three ways:
- If you die
- If you have the enduring guardianship revoked
- If the Guardianship Tribunal revokes it
What is the Guardianship Tribunal?
The Guardianship tribunal is a part of the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT).
The Guardianship tribunal makes determine applications regarding people who are unable to make decisions for themselves.
What can I do if an Enduring Guardian is abusing their authority?
If you believe an Enduring Guardian is abusing their authority you can seek to have the enduring guardianship reviewed in the NCAT.
NCAT can either confirm, revoke or substitute an Enduring Guardianship.
For more information on how you can challenge an Enduring Guardian that is abusing their authority, please contact us on 02 8539 7475.
What happens if I do not have an Enduring Guardian?
If you do not have an Enduring Guardian, the NCAT Guardianship division can appoint you with one if you lack the capacity to make your own decisions.
Can I limit the powers of my Enduring Guardian?
An Enduring Guardianship document can be drafted to restrict what decisions your Enduring Guardian can make on your behalf should you become incapacitated.
How can I cancel the appointment of my Enduring Guardian?
An Enduring Guardianship can be cancelled in writing.
You should seek professional legal advice in order to understand the various legal requirements associated with the proper cancellation of an Enduring Guardianship.
For more information on the requirements of cancelling the appointment of an Enduring Guardian, please contact one of our expert wills and estates lawyers on 02 8539 7475.
What can an Enduring Guardian not do?
There are various legal limits to the authority of an Enduring Guardian. Some of the things an Enduring Guardian cannot do on your behalf include:
- Voting
- Drafting your will
- Consent to a marriage on your behalf
- Make financial decisions on your behalf
- Subjecting you to certain medical procedures and treatments
For a better understanding of the limits of an Enduring Guardians’ powers you should seek professional legal advice. To do this, you can contact one of our expert wills and estates lawyers on 02 8539 7475.
