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. Enduring guardianship empowers a person to make lifestyle and heath decisions on another person’s behalf. For more information on power of attorney, please see our dedicated article on this topic.

The wills and estates lawyers at BSM Lawyer Sydney provide meticulously drafted enduring guardianship documents at a fixed fee.

Yes, you can appoint someone as a power of attorney or enduring power of attorney and also make them your enduring guardian. This may be appropriate if you prefer to have someone make both financial and lifestyle decisions on your behalf.

Whilst you can prepare an enduring guardianship document yourself, it is not in your best interests to do so. An experienced estate lawyer will draft an enduring guardianship document to ensure that it is both legally valid and properly reflects your intentions. In addition, they will ensure that you fully understand the consequences of the document.

In the context of enduring guardianship documents, capacity refers to a person’s ability to understand, communicate and evaluate their choices. In contrast, where a mental illness or accident renders a person incapable of comprehending health care choices presented to them, they do not have the legal capacity to make these choices. An enduring guardianship document will be effective even where a person has lost the capacity to make lifestyle decisions for themselves. It is important that an experienced lawyer prepares the legal document in a way that allows the enduring guardianship to be valid from the time of signing, not only when the person loses capacity. The estate lawyers at BSM Lawyer Sydney have many years of experience and will create a water-tight legal document for you.

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.

An Enduring Guardianship can end in three ways:

1. If you die
2. If you have the enduring guardianship revoked
3. If the Guardianship Tribunal revokes it

The Guardianship tribunal is a part of the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT). The Guardianship Tribunal makes determinations regarding people who are unable to make decisions for themselves and don’t have a pre-existing enduring guardianship in place. They also have a role in assessing if an enduring guardian is abusing their authority. This can be formally reviewed in NCAT who will either confirm, revoke or substitute an enduring guardianship.

If you do not have an Enduring Guardian, and you lose the capacity to make your own decisions, the guardianship division of NCAT can appoint a guardian for you.

An Enduring Guardianship document can be drafted to restrict what decisions your Enduring Guardian is able to make on your behalf should you become incapacitated. The wills and estate lawyers at BSM Sydney Lawyers listen carefully to your wishes and ensure that these are included in the enduring guardianship document.

An enduring guardianship can be cancelled in writing. You should seek professional legal advice to ensure that the cancellation fulfils the legal requirements and is correctly cancelled. The wills and estate legal team at BSM Sydney Lawyer can assist with this.

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:

1. Voting
2. Drafting your will
3. Consent to a marriage on your behalf
4. Make financial decisions on your behalf
5. Allow you to be subjected to certain medical procedures and treatments

For a better understanding of the limits of an Enduring Guardians’ power you please seek legal advice from BSM Sydney Lawyers. Our lawyers offer a free 20-minute consultation.