An enduring guardianship is a legal document in which you appoint someone (ie, your guardian) make decisions about your care and welfare when you cannot make your own decisions (ie, generally due to lack of mental incapacity).

Your guardian can make decisions about where you live, what health or dental care you receive, what personal services you require and any other matter relating to your care and wellbeing. You can also limit or restrict what decisions your guardian can make in the enduring guardianship.

Your guardian cannot make decisions about your legal and financial matters. In New South Wales, these matters would be handled by your attorney appointed under general power of attorney or enduring power of attorney.

If you lose your mental capacity and you’re unable to look after yourself, someone will need to look after you.

Generally, your next of kin or a close family would take on this responsibility, but this may not necessarily be clear depending on the dynamics of your family. To avoid any confusion, you can appoint a guardian through the enduring guardianship.

Whether you should consider appointing a guardian is influenced by various factors such as:

• Your age.
• Your health.
• Your family history of mental illness.
• Your concern about accident or misfortune.

If you do not appoint a guardian, and there are disputes between your family as to who can make decisions or is responsible for you, it can eventually lead to legal action and court proceedings.

Loss of mental capacity means you are no longer able to make decisions for yourself. For example, if you suffer an injury resulting in you being in a coma or worse (but not dead), then you have lost your mental capacity. If you have an illness and you are no longer communicative, you could also have lost your mental capacity. A doctor can also examine you and determine that you have lost your mental capacity or are no longer able to make decisions for yourself.

During those times when you do not have your mental capacity, your enduring guardian can then make decisions on your behalf.

To appoint a guardian, you must complete the enduring guardianship form and you must sign that form in front of a qualified witness – like us.

We must provide you with legal advice as to the effect of appointing a guardian, certify that we’ve provided you with that advice, and witness your signature.

Your guardians must also obtain legal advice, the person who provided that advice must also certify that they’ve provided advice to your guardians, and they must witness your guardian’s signature.

You should appoint someone who can and will look after you and who will act in your best interests. Generally, most people will appoint family members (ie, spouses, children or parents) because they know you, however, this also depends on your relationships and the dynamics of your family.

The cost for you to appoint a guardian through an enduring guardianship is relatively cheap compared the cost (and the time/process) of trying to obtain guardianship over you once you’ve lost your mental capacity.

We offer fixed processional fees to prepare and witness the enduring guardianship.

To find out more about our services, please request a quote or call our office on 02 9687 8885.

Yes, you can appoint as many guardians as you like – however, appointing multiple guardians can create other legal and practical complications. You should seek legal advice before you decide to appoint multiple guardians.

There are several ways that you can appoint multiple guardians and so it depends on what you want them to do and how you want them to do it. For example, you can appoint your guardians jointly, jointly and severally, or in the alternative.

Also, each of your guardians must obtain legal advice before they accept their appointment.

No, if you know what you’re doing then you don’t need a lawyer to help you prepare an enduring guardianship, but you need a lawyer to provide you and your guardian with legal advice and to witness your signature.

There are forms that can be downloaded from the internet, but since you need a lawyer for the legal advice and witnessing, you might as well ask that lawyer to help you prepare the enduring guardianship for peace of mind.

Yes, it’s a requirement of the appointment of an enduring guardian that your guardian also obtain legal advice. A lawyer will advise them of the effect of the enduring guardianship, their responsibilities as your guardian, and confirm that your guardian voluntarily agrees to become your guardian.

Yes. An enduring guardianship that was validly made in another state or territory will be recognised in New South Wales.

If you now live in New South Wales, to avoid any complications that may arise from trying to rely on an interstate or foreign enduring guardianship, you should make another enduring guardianship here.

Yes, while you still have your mental capacity you can revoke or change your enduring guardianship. If you have lost your mental capacity, then someone else can apply to the NSW Civil and Administrative Tribunal (NCAT) to review the appointment.