In Australia, enduring guardianship is a legal arrangement that allows an individual (the appointor) to appoint another person(the enduring guardian) to make personal, lifestyle, and health care decision son their behalf if they become unable to make decisions for themselves due to illness, injury, or disability. This arrangement is commonly part of enduring power of attorney planning, where the appointed guardian has the authority to manage these decisions. Enduring power of guardianship is governed by state and territory legislation, and the specific requirements and procedures may vary depending on the jurisdiction.
Key aspects of enduring guardianship in Australia include:
Scope of Authority
An enduring guardian is authorised to make decisions about matters such as accommodation, health care, medical treatment, and lifestyle choices on behalf of the appointor. The scope of authority can be tailored to the appointor's preferences and needs.
Enduring Guardianship Document
To appoint an enduring guardian, the appointor must create an enduring guardianship document in the prescribed form as required by the relevant state or territory legislation. The document must be signed by the appointor, witnessed by two witnesses, and signed by a prescribed witness (such as a lawyer or a Justice of the Peace).
Capacity and Consent
The appointor must have legal capacity at the time of creating the enduring power of attorney or guardianship document. This means they must understand the nature and effect of appointing an enduring guardian and the authority granted to the guardian. The appointment must be made voluntarily without undue influence or coercion.
Registration
In some jurisdictions, enduring power of guardianship documents may need to be registered with a government agency or authority to be effective. Registration ensures that the appointment is recorded and recognised by relevant parties, such as health care providers and residential care facilities.
Revocation and Amendment
The appointor retains the right to revoke or amend the enduring guardianship appointment at any time, as long as they have legal capacity to do so. Revocation or amendment must be done in writing and in accordance with the requirements set out in the relevant legislation.
Role and Responsibilities of the Enduring Guardian
The enduring guardian has a fiduciary duty to act in the best interests of the appointor and make decisions that align with the appointor's known preferences and wishes. The guardian must also consider any directives or instructions provided by the appointor in the enduring guardianship document.
Enduring guardianship provides a mechanism for individuals to plan for future decision-making regarding their personal and health care needs in the event of incapacity. It is an important aspect of advance care planning and can help ensure that the appointor's wishes are respected and upheld during times of vulnerability. Enduring power of attorney planning, including guardianship, allows you to appoint someone you trust to make decisions that align with your wishes and best interests when you are unable to do so yourself.
