What are your powers and responsibilities when acting as an Enduring Guardian?
An Appointment of Enduring Guardian is a legal document by which a person (the ‘Donor’) appoints someone else (the ‘Enduring Guardian’) to make medical, personal and lifestyle decisions on the Donor’s behalf when they are not capable of making the decisions themselves.
Enduring Guardians are agents authorised to make decisions on behalf of the Donor. In New South Wales, Enduring Guardians are authorised under the Guardianship Act 1987 (NSW).
As an Enduring Guardian, you will be able to make decisions including:
- Where the Donor lives (for example, in a hospice or nursing home);
- What health care the Donor receives;
- Who will be the Donor’s treating doctor; and
- What other personal services the Donor receives (for example, home nursing support).
Your decisions will be subject to any conditions imposed in the Appointment of Enduring Guardian document.
You will only make decisions for the Donor when they are in a critical medical state and are unable to make decisions for themselves. For example, if the Donor is in a coma, you might be asked to agree to treatments being carried out, or to agree to have a life support machine switched off.
You may be appointed as an Enduring Guardian solely or jointly with another person. If you have been appointed solely, you will be free to exercise your power individually and without approval or signatures from other persons. If you have been appointed jointly, you must reach agreement with the other Enduring Guardian(s) before making any decisions. Regardless, it is always advisable to consult with the other members of the Donor’s family in making decisions about medical treatment and welfare.
The Donor has made the decision to entrust you with their medical and general wellbeing. You must honour any conditions set out in the Appointment of Enduring Guardian document. Your power must at all times be exercised with the person’s interests and wishes foremost in your mind. If possible, we recommend that you should also speak with the Donor about their wishes prior to the Donor losing capacity.
It will be up to you as Enduring Guardian to consult with the Donor’s doctor about the Donor’s capacity to make decisions before taking any steps on their behalf. This is done by approaching the Donor’s doctor for a certificate to the effect that the Donor is totally or partially incapable of managing their person.
In order to exercise your power as Enduring Guardian, you will need to produce the original or a certified copy of the Appointment of Enduring Guardian document together with the certificate of incapacity from the Donor’s doctor (at least on the first occasion). Together, these documents provide evidence to others of the fact that you are entitled to make decisions on the Donor’s behalf.
Your role as Enduring Guardian ends when the Donor dies or when your appointment is revoked.
As Enduring Guardian, you do not have any powers or responsibilities relating to the financial or legal affairs of the Donor – this is the role of the Attorney appointed under a Power of Attorney document. The same person may be appointed both Enduring Guardian and Attorney.
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The information contained in this post is current at the date of editing – 7 May 2019.