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Linda Rogers, Legal Officer, NSW Guardianship Tribunal http://www.gt.nsw.gov.au/
Note: this article reflects the law in NSW. Readers from other states should make enquiries about the laws that apply in their state.
People in NSW can now appoint their own enduring guardian. An enduring guardian is someone who is given authority to make health and lifestyle decisions on a person’s behalf should that person one day no longer be able to make these decisions themselves.
Most older Australians are familiar with the idea of making a will. By executing a will, a person can plan ahead and say what they want to happen to their estate after they die. People may be less familiar with the fact that they can also put arrangements in place to cover situations where they are no longer able to make their own decisions because they develop a disability that affects their decision making. This might occur due to illness or accident. A person can develop a decision-making disability from stroke, a brain injury, dementia or other conditions that affect mental capacity.
Some people may have made an enduring power of attorney. This is a legal document that enables a person to authorise another person to operate their financial affairs. A general power of attorney terminates when the principal (the person who made the power or attorney) loses the capacity to operate his or her affairs. An enduring power of attorney (called a protected power of attorney in NSW) continues on even if the person loses capacity. By executing an enduring power of attorney, a person can ensure there is someone to manage their financial affairs should they lose the capacity to do so themselves.
Enduring guardianship has been available in NSW since 1998. By appointing an enduring guardian, a person can determine whom they want to make health and lifestyle decisions for them, should they lose the capacity to make these decisions themselves. A person may decide to make such an appointment where they want a particular person to make these decisions for them. They may have specific views about the medical treatment they want to receive, where they want to live and other matters that they wish to convey to the enduring guardian. The appointment only comes into effect when the person loses capacity and becomes a ‘person in need of a guardian’.
The provisions concerning enduring guardianship are to be found in Part 2 of the Guardianship Act 1987 (NSW) http://www.austlii.edu.au/cgi-bin/disp.pl/au/legis/nsw/consol%5fact/ga1987136/?query=title+%28+%22guardianship%22+%29 and also in the Guardianship Regulation 2000 (NSW) http://www.austlii.edu.au/cgi-bin/disp.pl/au/legis/nsw/consol%5freg/gr2000227/?query=title+%28+%22guardianship+regulation%22+%29.
A person must be 18 years of age or over to appoint an enduring guardian. They must also have the capacity to make the appointment, meaning that they understand the nature and effect of the document.
To be eligible to be appointed as an enduring guardian a person has to be 18 years or older. They cannot be involved either in a professional or administrative capacity in the medical care or treatment or the person making the appointment. They also cannot be a close relative of a person so involved in the person’s care.
The person being appointed should be someone the appointor trusts and a person with whom they can discuss their views about what they want to happen should they lose capacity.
The appointment must be made in writing and in or to the effect of the prescribed form in the Guardianship Regulation 2000 http://www.austlii.edu.au/cgi-bin/disp.pl/au/legis/nsw/consol%5freg/gr2000227/?query=title+%28+%22guardianship+regulation%22+%29.
The Guardianship Tribunal publishes such a form.
A person who wants to appoint an enduring guardian must have their enduring guardianship appointment witnessed by a prescribed witness, that is, a solicitor, barrister or Clerk of a Local Court. The person who intends to appoint an enduring guardian and the person they want to appoint should attend an appointment with a prescribed person who can witness the document. When the form to appoint an enduring guardian has been completed, the appointor and proposed enduring guardian must sign the form. The solicitor, barrister or Clerk of a Local Court certifies that both the person and the enduring guardian signed voluntarily and appeared to understand the effect of the document.
More than one person can be appointed as an enduring guardian. If someone wants to appoint more than one enduring guardian they need to decide whether to appoint the enduring guardians jointly or separately. Jointly means that the enduring guardians have the same functions and have to agree and act together. A joint appointment is made on the one enduring guardianship form. Separately means that the enduring guardians have different functions, or areas of decision making. A separate appointment for each enduring guardian is made on separate enduring guardianship forms.
A person making the appointment can determine what functions (or areas of decision making) the enduring guardian is to have.
The appointor can limit or exclude the authority given in relation to the functions in the appointment and can add any other function relating to the appointor’s person.
If no such limitations, exclusions or additions are made, the functions are:
| § | Deciding where the appointor is to live |
| § | Deciding the heath care the appointor is to receive |
| § | Deciding the other kinds of personal services that the appointor is to receive |
| § | Giving consent under Part 5 of the Guardianship Act to the carrying out of medical or dental treatment on the appointor |
Where the enduring guardian is given authority to give substitute consent to medical and dental treatment when the appointor is incapable of giving their own consent to treatment that is proposed for them, the enduring guardian will not have the authority to override the appointor’s objections.
The appointor can also make lawful directions to their enduring guardian about how they are to exercise the functions. An enduring guardian can only consent to treatment within the context of Part 5 of the Guardianship Act http://www.austlii.edu.au/cgi-bin/disp.pl/au/legis/nsw/consol%5fact/ga1987136/?query=title+%28+%22guardianship%22+%29. This means they can only consent (or refuse to consent) to treatment that is provided to promote or maintain the health and well-being of the person they are the enduring guardian for. An appointed enduring guardian cannot provide a lawful consent to euthanasia.
The enduring guardian must follow any directions unless the Guardianship Tribunal directs otherwise. If the enduring guardian cannot carry out the direction they should seek a review of the appointment by the Guardianship Tribunal.
The appointment comes into effect for such periods as the appointor is a ‘person in need of a guardian’. This is where the person is totally or partially incapable of making health or personal decisions because of a disability.
Where there is doubt about whether the appointment is now in effect, the enduring guardian should seek a medical certificate about the appointor’s capacity to make health or personal decisions. A medical certificate or report that the appointor on a particular day or during a particular period was incapable will be evidence of that fact.
An enduring guardian can also apply to the Tribunal for an order declaring that the appointment has effect. An enduring guardian might make such an application where others were challenging their authority.
The appointor can revoke (or cancel) the appointment at any time as long as they have the legal capacity to do so, meaning that they understand the nature and the effect of the document used to revoke the appointment.
The revocation must be in writing and “in or to the effect of” the form prescribed in the Regulations. The Tribunal has published a form that can be used for this purpose. A barrister, solicitor or Clerk of the Local Court must witness the revocation form. The witness certifies that the appointor signed voluntarily and appeared to understand the effect of the document.
The appointor must let the enduring guardian know in writing that the appointment has been revoked. If they do not do this, the form they have signed will not operate to revoke the appointment. It would also be prudent for the appointor to recall any copies of their revoked enduring guardianship appointment.
The Tribunal can review an enduring guardianship appointment, either on the Tribunal’s own motion or on the application of any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the appointor. The Supreme Court can also review the appointment.
The Tribunal can suspend the appointment pending the outcome of the review. On review the Tribunal can revoke the appointment or confirm it, with or without varying the functions. The Tribunal can revoke the appointment either at the request of the enduring guardian or if revocation is in the appointor’s best interests. If the Tribunal decides to revoke the appointment it can proceed to make either a guardianship or financial management order.
If there is no review of the enduring guardianship appointment but there is a guardianship application made about the appointor, any guardianship order operates to suspend an enduring guardianship appointment for the period the guardian is in place. This is the case even if the Tribunal appointed guardian has different functions from the enduring guardian.
If a person who is the subject of the guardianship order makes an enduring guardianship appointment the appointment is of no effect.
Under the terms of the Guardianship Act, the NSW Guardianship Tribunal has the power to appoint guardians as substitute lifestyle decision-makers for people 16 years of age and over. Competent adults can now choose the person they want to act as their substitute decision maker, by appointing their own enduring guardian. This can avoid the possible future need for an application to be made to the Guardianship Tribunal for the appointment of guardian to make lifestyle decisions.
For further information about enduring guardianship, refer to:
| • | Office of the Public Guardian, Enduring Guardianship in New South Wales: your way to plan ahead (2001). This booklet is available from the Office of the Public Guardian |
| • | The Guardianship Tribunal website at http://www.gt.nsw.gov.au |
| • | The websites of the these organisations: |
| • | Office of the Public Guardian http://www.lawlink.nsw.gov.au/opg.nsf |
| • | The Benevolent Society http://www.bensoc.asn.au |
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URL: http://www.austlii.edu.au/au/journals/ElderLawRw/2002/7.html