Updated 1 Jan 2021
Part of your planning for the future should also take into account circumstances where you might not be able to make decisions for yourself, including lifestyle, medical and health choices. This is where you may consider establishing an Enduring Guardianship.
An Enduring Guardianship means that if such circumstance arise, then it is good to have someone who can make those choices for you.
Such choice might be –
- where you should live;
- what services you will need;
- what medical care you should receive.
Clearly it must be someone you can rely upon and trust to do the right thing on your behalf. Generally, a family member is the preferred choice for most people.
The appointment of some person to act on your behalf for these choices is that of an Enduring Guardian. This appointment can go hand in hand with an enduring power of attorney so that not only are your property and financial decisions taken care of, but also, your medical, lifestyle and health decisions. Some people like the idea of having an advanced care plan to syncronise with the appointment of a guardian.
The appointment of a Guardian can only take effect during a period of time that you are a ‘person in need of a guardian’. The Guardianship Act defines such a person as a person who “because of a disability, is totally or partially incapable of managing his or her person”.
An Enduring Guardianship instrument is not valid unless it is executed as follows:
- A Guardian must be of or over the age of 18 years.
- The form is prescribed under the Regulations.
- It must be signed by the appointor (or other eligible signer) and also endorsed with the appointee’s acceptance.
- The execution of the document by the appointor and appointee must be witnessed by one or more eligible witness who also certifies that the appointor executed the instrument voluntarily and appeared to understand the effect of the instrument.
An eligible witness is an Australian legal practitioner or Registrar of the Local Court.
What are the powers of Guardian?
Under S.6E of the Guardianship Act 1987, the appointee of the guardianship instrument can exercise the following functions:
- deciding where the appointor is to live;
- deciding on the health care that the appointor is to receive;
- deciding on any other kinds of personal services that the appointor is to receive;
- giving consent to carrying out any medical or dental treatment; or
- any other function relating to the appointor’s person, set out in the instrument.
Contact a Solicitor at Proctor & Associates now for advice in protecting your future or caring for a loved one.