Fact Sheet

Enduring Guardianship

In NSW there are ways to plan ahead for a loss of *capacity. The most common include the appointment of an enduring power of attorney and/or an enduring guardian and the making of an advance care directive (living will).

What is enduring guardianship?

Enduring guardianship allows you to legally appoint a # substitute decision-maker of your choice to make those lifestyle and health care decisions should you lose the capacity to make your own decisions at some time in the future.

How do I appoint an enduring guardian?

If you wish to appoint an enduring guardian, you must sign a form of appointment. You can appoint one or more enduring guardians with the same functions on the same form.

If you want to appoint two or more enduring guardians with different functions, you will need to fill out separate forms for each enduring guardian appointed.

Do you need to register the form of appointment?

There is no requirement to lodge the form with any agency or office. There is no register of people who have appointed an enduring guardian.

The enduring guardianship form is an important legal document. The original should be kept in a safe place, possibly where you keep other important legal documents such as your will and your enduring power of attorney. It is important that your enduring guardian has a copy of the form of appointment. Where possible this should be a certified copy, that is, a copy signed by the legal practitioner as being a true copy of the original. Your enduring guardian may be required at some time in the future to produce evidence of his or her appointment. The enduring guardian might need to know where the original is kept and be able to access it if needed.

When can the enduring guardian start making decisions?

The appointment of your enduring guardian takes effect only if you lose the capacity to make your own personal or lifestyle decisions.

A person in need of a guardian means a person who, because of a disability, is totally or partially incapable of making decisions.

When does enduring guardianship end?

Enduring guardianship ends when the person who appointed the enduring guardian regains the capacity to make decisions or dies. Enduring guardianship also ends when it is revoked by:

• the person who made the appointment; or
• the Guardianship Tribunal; or
• the Supreme Court.

A joint enduring guardianship appointment will end if one of the joint enduring guardians dies, resigns or becomes incapacitated unless you have stated clearly in the form of appointment that you intend it to continue beyond these events. Enduring guardianship may end when the enduring guardian dies.

* What is capacity?

Capacity is the ability to make decisions for oneself.

A person is said to have capacity when the person can go through the process of making his or her own decisions by understanding the information and choices presented, weighing up the information to determine what the decision will mean for him or her and then communicating that decision.

If a person is unable to follow this process and make his or her own decisions, that person is said to lack capacity.

# What is a substitute decision?

A substitute decision involves providing consent on behalf of another person when they are unable to do so for themselves. Substitute consent can be provided for personal decisions. For example where a person lives, what services a person may receive, or what medical treatment a person may or may not receive.

A substitute decision-maker tries wherever possible to make the decision that the person themselves would make, and where that isn't possible, to make a decision that is in the interests of the person.

A substitute decision-maker tries wherever possible to make the decision that the person themselves would make, and where that isn't possible, to make a decision that is in the interests of the person.

To do this a substitute decision-maker needs to talk to the person for whom the decision needs to be made, service professionals, family members and friends.

How can I obtain more information about enduring guardianship?

The Public Guardian has produced a guide on the appointment of an enduring guardian called "Enduring Guardianship: Your Way to Plan Ahead". For a free copy of the guide you can call them on (02) 9265 1443 or 1800 451 510.

You can also visit their website at: www.lawlink.nsw.gov.au/opg

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