enduring guardianship

Nobody wants to picture themselves as unable to speak for themselves or needing someone else to make important decisions about their personal life, lifestyle and healthcare. Yet common sense says that this can happen to anyone.

An excellent form of protection is to appoint someone you trust to be your enduring guardian. This legal document, called ‘an enduring guardianship’, gives a trusted person the authority to make the big decisions on your behalf. Most often, this relates to healthcare but can also include other personal matters.

Why appoint an enduring guardian?

There might be a possibility when you may not be able to make decisions for yourself. Preparing ahead of time in case this ever happens, means you can choose your enduring guardian. This should be someone you trust and who will have your best interests in mind. It should also be someone who will ask you, ahead of time, what your wishes are.

Who can be your enduring guardian?

You might appoint someone who knows you well, so that they can make decisions that are in line with your needs, wishes, values and beliefs. Your enduring guardian may have to make difficult decisions for you, so choose someone you trust. You cannot appoint the public guardian or someone you know in a professional capacity to be your enduring guardian. You can appoint one or more enduring guardians and you also have the option to appoint a substitute enduring guardian, in case your currently appointed enduring guardian is unable to fulfil the role.

Updating, cancelling or changing enduring guardianship

While you are capable of making your own decisions, you can update, cancel or change an enduring guardianship. If you lose the ability to make or voice your own decisions, you won’t be able to make these adjustments; however, any concerns can be brought to the attention of the Guardianship Division of NSW Civil and Administrative Tribunal (NCAT) or the NSW Supreme Court to review the enduring guardianship.

What types of decisions can an enduring guardian make on your behalf?

Your enduring guardian may make lifestyle decisions for you, such as where you live and which services you receive. They may also make healthcare decisions for you, such as the medical and dental treatment you will receive.

What types of decisions cannot be made by an enduring guardian on your behalf?

You have the option to set out instructions on how your enduring guardian should use their authority. There are also some other decisions that your enduring guardian cannot make on your behalf. For example, an enduring guardian cannot make decisions regarding your financial affairs. A different legal document, called ‘an enduring power of attorney’, gives a trusted person the right to manage of your financial affairs, but they can’t make decisions that you have disagreed with.

Other decisions that cannot be made by an enduring guardian include decisions like accepting a marriage proposal, anything illegal, decisions regarding specific treatments and any decisions set out in an Advance Care Directive.

What is an Advance Care Directive?

An advance care directive is a document where you set out your values and wishes about any medical treatment. The advance care directive is used if you are unable to make decisions for yourself. You can outline what is important to you and which treatments and care you would like or would refuse. Although an enduring guardian may consult on an advance care directive, they cannot override your instructions. The wishes you have set out in the advance care directive will take priority when medical decisions need to be made.

Documents such as an enduring guardianship and an advance care directive can prepare you for your healthcare, lifestyle and medical needs at a time of your life when you need it most.

In late 2021, Positive Life NSW will be running a full day workshop on End-of-Life Planning with other people living with HIV and a range of speakers. Call Positive Life for more details on (02) 8357 8386, 1800 245 677 (freecall) or email contact@positivelife.org.au

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