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Why Is Appointing an Enduring Guardian Important?

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An Enduring Power of Attorney ensures that there is someone who can deal with your legal and financial affairs if you are unable to do so (see our article Do I really need an Enduring Power of Attorney?). However, it does not authorise someone else to make personal or lifestyle decisions for you. These may include where you live and what medical treatment you have in the future. In this article, we will outline the importance of the complementary role of an Enduring Guardian as part of your long-term planning.

What is an Enduring Guardian?

An Enduring Guardian is someone chosen by you to make personal and lifestyle decisions for you when you are no longer able to do so yourself. These decisions are known as "functions". The number of functions can be nominated by you.

To make an appointment, you will need to be 18 years or older and be mentally competent to understand what you are doing.

Who can you choose to be an Enduring Guardian?

You can appoint more than one guardian who can be instructed to act jointly or separately. You decide which decisions you would want them to make for you.

Given the authority invested in them, appointees should understand your values and wishes, with the ability to make the right decisions for you, and who you can trust to make the required decisions in your best interests. You will need to discuss their appointment with them to ensure they are willing and able to take on the responsibility.

What decisions cannot be made by an Enduring Guardian?

The authority of Enduring Guardian does not extend to:

  • making a Will for you
  • voting on your behalf
  • consenting to marriage
  • managing your finances
  • overriding any wishes regarding your particular medical treatment.

Can you change your mind about the appointment of an Enduring Guardian?

If you change your mind about an appointee and you have the competence to do so, you can revoke the appointment by advising them in writing. Only the NSW Civil and Administrative Tribunal can revoke the appointment once you have lost mental capacity.

What if someone has concerns over my welfare?

If another person has concerns over your welfare, they can apply to the Tribunal for a review of the appointment.  If the Tribunal feels that your Enduring Guardian is not making appropriate decisions in your best interests, they can revoke the appointment.

An Enduring Guardianship ends on your death, by revocation or subsequent marriage.

What happens if I do not appoint an Enduring Guardian?

If you lose the capacity to make your own decisions and have not appointed an Enduring Guardian, the Tribunal may appoint someone suitable, or the Public Guardian may be appointed to manage your affairs. However, by appointing an Enduring Guardian yourself, you can choose who you want to make these important personal decisions.

Contact our Enduring Guardianship and Estate Planning Lawyers in Sydney, NSW

The specialists at Szabo & Associates Solicitors can advise you on all aspects of appointing an Enduring Guardian and all other aspects of estate planning. Please call us on 02 9281 5088 or fill in our online contact form.

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