Wills & Estates Newsletter

Should I Appoint an Enduring Guardian?

People usually hear about appointing a guardian in one of three ways: their solicitor may talk about it when discussing a will, a financial advisor may ask if there is one in place, or a retirement village or hospice may require a prospective resident to have one.

What is a Guardianship Appointment? It is a legal document by which the donor appoints one or more people to be their guardian. The guardian can make decisions about health and lifestyle if the donor is not capable of doing so. It is different from a Power of Attorney, under which the attorney can only make decisions about financial matters, although in some states the two can be combined in one document. Unfortunately, in New South Wales two separate documents are still required.

Under a guardianship, the guardian has no authority unless the donor is incapable of making decisions. The guardian can :

• Decide where the donor lives
• What medical, dental and health services the donor receives
• What other services the donor is to receive
• Give consents to medical and dental treatment

A donor can also give directions to the guardian. A typical example of these directions may include that the donor does not want use of life support systems to sustain life or that the donor does not want dialysis treatment for kidney failure.

There can be more than one guardian and if there are more than one, the donor specifies whether they must act unanimously or whether each can make decisions independent of the other. It is common to also appoint an alternate who will step in only if the original guardian is unwilling or unable to act. The law requires that the donor signs in the presence of a lawyer or court officer who must certify that the donor appeared to sign freely and in full understanding of what they are signing. A guardian must accept their appointment before they can use any of their powers and this acceptance is subject to the same certification process.

The importance of a guardianship appointment is that should it be utilised, the person or persons the donor has chosen will be the decision maker and they know that the donor has reposed that trust in them. It should reduce the risk of any family contentions because the donor has indicated whom they want to make the necessary decisions.

A guardianship – and an enduring power of attorney – should be made not just by the elderly. The loss of the ability to make decisions does not arise just from dementia of the elderly, it may also arise from a variety of illnesses, as well as severe road or work accidents.

The Guardianship Tribunal and the Supreme Court retain a supervisory ability. A guardianship can be set aside or a guardianship order can be made in favour of a public body or another person. Usually this is only likely to occur when there is evidence that a guardian is acting improperly or that the actual appointment is dubious, usually because the guardian is said not to have had the ability to knowingly sign it.

The motto should be, therefore, do it now not later, because later may be too late!

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